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PROBATION

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UNITED STATES
GOVERNMENT PRINTING OFFICE
WASHINGTON: 1939

BOARD OF EDITORS
PAUL E. RAYMOND HENRY WEIHOEEN I
WILLIAM HURWITz

WAYNE L. MORSE
HOWARD B. GILL

" EXECUTI'VE COMMLTTEE

BRIEN Whiéfiéfi; Dhaifinsmlziséistant Attorney 'General
JAMES V. BENNETT, Director, Bureau of Prisons
GORDON DEAN, Special Executive Assistant to the Attorney General I

WAYNE L. MORSE, Editor in chief
IVAR PETERSON, Associate Editor
ELIZABETH PETERSON, Associate Editor

WILLIAM HURWITz, Statistical Editor
(II)

Fan sale by the Superintendent of Documents, Washington, D. C., Price as

TABLE OF CONTENTS

BEFACE ................................................

HAPTER 1. HISTORY AND DEVELOPMENT OF PROBATION IN
THE UNITED STATES .........................

Definitions and Distinctions—Common Law Sources—Statu-
ry Power to suspend Sentence—Early Devices to Alleviate
unishment in Massachusetts—Enactment of First Probation
tutes in Massachusetts and Other New England States——
urther Adoption of Probation Statutes—Extent of Probation.

HAPTER II. ORGANIZATION OF PROBATION DEPARTMENTS---
Introduction—Centralized State Probation Organization-—
ntralized County Organizations—Metropolitan and Large
rban Organizations—Smaller Urban and Rural Organizations—-
deral Probation Organizations—Summary.

AFTER III. PROBATION PERSONNEL ............ ' ..........
Introduction—Standards for Probation Service—Existing
alification Requirements—Methods of Selection and Dis-
arge—“In-Service” Training of Personnel—Summary.

APTER IV. THE SELECTIVE PROCESS—ELIGIBILITY FOR PRO-

BATION ____________________________________
Statutory ProvisiOns Relating to Eligibility—Crimes Of Vio-
ce—Crimes Involving Use of Deadly Weaponsé—Crimes
ainst Morals—Mercenary Crimes—Crimes Against Govern-
nt—Restrictions Because of Previous Criminal Record——
sirability of Statutory Restrictions on Eligibility.

APTER V. THE SELECTIVE PROCESS-LAW AND THEORY or

PROBATION INVESTIGATION ....................
mportance of Investigation for Probation—Statutory Provi-
ns for Investigation—Factors Influencing Investigative Pro-
ure—Scope' and Methods Of the Investigation for Proba-
—-Summary.

APTEB VI. THE SELECTIVE PROCESS-INVESTIGATION PRAC-

TICES ......................................

eed for Adequate Probation Information—Summary of Pro-

ion Investigative Practices in Selected State Probation

'ts—Investigative Service in Some Well Known Probation

artments—Pre—Sentence Investigation in the Federal Pro-
ion System—Summary.

(III)

P w~
4’ \
ffl-IP\

Page

39

79

111

125

179

IV

CHAPTER VII. THE CONTROL OF PBOBATION’ERS—CONDITIONS
0F RELEASE ...............................
The Power to Prescribe Conditions—Nature Of Power—Types
of Terms and Conditions—Costs, Bonds, Fines, Restitution,
Support, Fees for Probation Service—Intoxicants—Disreputable
Persons and Places—Late Hours~—Employment—Indebtedness
and Unnecessary Expenditures—Medical Care—Law Observ—
ance—Reports and Visits—Identification—Imprisonment—
Conditions in Special Cases—Summary.

CHAPTER VIII. SUPERVISION 0F ADULT PROBATIONERS ......

Introduction—The Supervising Agency—The Supervising
Process—éFactors Influencing Adequacy of Supervision—Out-of-
State Supervision—Summary and Conclusions.

CHAPTER IX. REVOCATION AND TERMINATION 0F PROBATION-
Revocation Procedure—Frequency Of Revocation—Termina-
tion and Discharge—The Legal Status Of Probationers.

CHAPTER X. SOME FACTORS ASSOCIATED WITH OUTCOME ON
PROBATION--_--_---_....-_.._____-_______._ _____
Introduction—Race and Nativity—Age— Marital Status——
Recidivism—Nature of Ofl’ense Committed—Steadiness of Em-
ploymente—Conclusions.

CHAPTER XI. JUDGES AND PROBATION .....................

Method of Collecting Judges’ Views—Educational Back-
ground—Political Influences—Factors Influencing Sentences——
'Leniency Factors—Severity Factors—Pleas and Sentencing
Practices-—Judges and Indeterminate Sentences—Judges’ Views
of Primary Objectives of Criminal Law Judges’ Attitude
Toward Probation—Summary.

CHAPTER XII. RESUME ..................................

History and Development Of Probation—Organization of
Probation Departments—Probation Personnel—Eligibility for
Probation—Law and Theory Of Probation Investigation——
Investigation Practices—The Control Of Probationers: Condi-
tions Of Release—Supervision of Adult Probationers—Revoca-
tion and Termination Of Probation—Some Factors Associated
with Outcome on Probation—Judges and Probation—Conclu-
Slon.

 

APPENDIX A. BIBLIOGRAPHY.

APPENDIX B. SCHEDULE USED IN COLLECTING JUDGES’ VIEWS
CONCERNING RELEASE PROCEDURE.

FOREWORD

Three years ago at my direction there was commenced a
research project known as the Attorney General’s Survey
of Release Procedures. The undertaking was financed by
a substantial grant of funds by the Works Progress Ad- "
ministration; but the professional direction of the project
was made the responsibility of the Attorney General and a
staff of persons designated by him. In spite of many diffi-
culties, some foreseen and others unforeseen, the Survey,
subject to certain necessary limitations, has been completed.
It is my pleasure to present to the public these five volumes
of source material dealing with the various methods for
the release of persons who have been convicted of crime.

There were suggestions at the outset that the Survey be
limited to a probe of the subject of parole. If it had been
so limited I would not have been interested. My funda-
mental purpose was to secure a broad view of the whole
field of release procedures, including probation, parole,
pardon, and other forms of release both from penal insti-
tutions and through the courts. No such study had thereto-
fore been undertaken.

There is in the United States no uniform system of pro- ..
bation or parole or pardon. Widely varying methods of
administering these procedures prevail in the various juris-
dictions, State and Federal. Very little is known about
them. The study was instituted in a spirit of experimenta»
tion. It does not purport to furnish the answers to all of
the questions which arise in this broad field. These five
volumes do, however, furnish valuable source materials
which lay the foundations for intelligent work by legis-
lators, administrators, scientists, students, and all others
who are concerned with the problems involved in the pun-
ishment and. rehabilitation of convicted men. These studies
.form a part, but only a part, of the need for sound research
data in every phase of criminal law administration. The
process of fact-finding must be continuous and exhaustive;
and it is my hope that this Survey will act as a stimulus to

(V)

VI

the development of permanent research programs. T
success of this effort may be judged by the extent to whi
public opinion demands the necessary reforms in the
ministration of criminal justice which are pointed out
the reports.

I express my deep appreciation to all those whose co
scientious efforts have gone into the making of the Surv
particularly to Justice Justin Miller, who prior to his
pointment to the United States Court of Appeals for t
District of Columbia served as Director of the Survey, a
to Dean Wayne L. Morse, who succeeded him as Direc
and Editor in Chief.

I wish to acknowledge my debt of gratitude to the la
number of relief workers and administrative officers of
Survey staff whose loyal services have made possible
completed reports. A special word of thanks is exten
to the following groups and individuals: The members
the executive committee of the Survey, Mr. Brien McMal
Mr. James Bennett, and Mr. Gordon Dean; the statist'
specialists, members of the technical advisory commit
Prof. Samuel A. Stouffer, chairman, Mr. Ronald Bea
Dr. Morris A. C0peland, Dr. W. Edwards Deming,
Alba M. Edwards, Prof. Merrill M. Flood, Dr. Milt01
Forster, Mr. Bennet Mead, Prof. Thorsten Sellin, Mr. F
erick F. Stephan, and Prof. S. S. Wilks; Messrs. San
Bates, Lovell Bixby, and Barkev S. Sanders who were 1
helpful in preparing the original plans for the Survey;
Milton Forster of the Works Progress Administra
whose splendid cooperation made possible the comple
of the study; and the several editors, associate and assis
editors whose writings speak for themselves, Mr. Ho
Gill, Mr. William Hurwitz, Dean Paul Raymond,
Henry VVeihofen, Dr. Hans von Hentig, Miss Helen F
Mr. Charles Morris, Mrs. Elizabeth Peterson, and Mr.
Peterson. ‘

I am also under deep obligation to the Governors
other officials of the States whose fine cooperation
possible the collection of the source material.

HOMER CUMMINGS,
Attorney Gene

PREFACE

The emergence of the probation method during the last half
f the nineteenth century marked a definite advance in the
eatment of criminals. The development of this system.
hich began as a legal device for alleviating the harshness
f punishment and preventing contamination of the crimi-
al novice in the unsavory atmosphere of the prison into a.
ethod of social treatment and rehabilitation has implica-
ons far beyond those envisaged by the founders of the
stem. However, with the extension of probation into all
rts of the country and with its increased use, many unfor-
nate tendencies have arisen. -
There is a recognition among those concerned with the
ministration and practice of probation work that proba-
n, as carried out in many communities, is not only fall-
g short of its full potentialities, but has, in many in-
ances, degenerated into a lax and purposeless exercise of ‘
dicial clemency, which complicates rather than facilitates
e administration of criminal justice. There is some diffi-
ty, however, in pointing to any single phase of the
oblem as constituting the basic difliculty to be overcome in
rking out an improvement of the system.
In many parts of the country probation has grown with-
t sound guidance or definite direction, with resultant in-
equacies and abuse. Since its administration has re-
ined primarily with the trial courts, it is essentially
al in character and highly individualized. This fact has
portant bearing upon the present study since in only a
jurisdictions could information be gathered or study
de of a State as a whole. With thousands of courts in
sections of the country administering probation accord-
to the interpretations and preconceptions of the indi-
ual judges, no attempt could be made to present any de-
led or exhaustive study for the whole country.
he aims and limitations of the present study need to be
rly recognized. As a part of a general survey of the

(VII)

VIII

procedures most commonly employed to effect the rele
of adult criminals, no attention is devoted to the probl
of juvenile probation which is a distinct and big
specialized field in the administration of criminal jus
presenting many problems of a nature different from th
which must be considered in dealing with the adult
fender. Moreover, limitations of time and funds have
vented a detailed treatment of the subject according to
individual units. Such a treatment would, in any 0
have been impossible, because of the inaccessibility of ess
tial data in many probation units. It must be realized t
relatively little is known at present concerning the meth
and procedures followed in the practice of probation
the various States because those charged with administra
have failed to keep adequate or comprehensible record
their work.

The most that this study hopes to do is to present a c
prehensive view of present conditions of probation law
administration throughout the country. In addition, 1;
has been an attempt, for the first time, to assemble and
late the existing literature in the field. Admittedly,
experienced probation administrator or case worker will
little that is new to him in those sections of the study W
deal primarily with the theory of probation. Those
tions are designed rather for the layman seeking an
troduction to the basic principles which should govern
administration of probation treatment. It is to be ho
however, that the present volume, as the first Nation-
study ever made of the whole subject of probation,
serve to indicate the nature of the problems inherent i
field, the extent to which defects in the law and faul
administration have contributed to the present inadequ
of the system. Above all, there is expressed the ea
hope that the very limitations and the deficiencies of
study will serve to indicate not only the pitfalls t
avoided but the problems to be considered in future st
of this character.

The study could not have been made without the
*eration and sincere interest of hundreds of probatio
ficers throughout the country who generously assist

1X

the collection of substantive data. In particular, apprecia-
tion is expressed to Mr. Irving W. Halpern, chief proba-
tion oflicer Of the court of general sessions, New York City,
for making available unpublished materials on probation
prepared by him and the members of his staff.

To Mr. Bennet Mead, of the Federal Bureau of Prisons,
nd to Mr. Ronald Beattie, of the Bureau of the Census,
ho rendered invaluable assistance in the preparation of
he statistical phases of the study special acknowledgment
3 due. Mr. Richard E. Chappell, Supervisor of the Fed-
ral Probation Service, who read the manuscript ofiered
any valuable criticisms.

Acknowledgment is also extended to Miss Helen Fuller,
r. Jacob Master, and Mrs, Lois Baker, who assisted in
ssembling the materials. To all those others who in many
ays contributed help and encouragement we express our
eep appreciation.

WAYNE L. MORSE, Editor.

IVAR PETERSON, Associate Editor.
ELIZABETH PETERSON, Associate Editor.
WILLIAM HURWITZ, Statistical Editor.

CHAPTER I

HISTORY AND DEVELOPMENT OF PROBATION
IN THE UNITED STATES "

DEFINITIONS AND DISTINCTIONS

Probation in comparison with other forms of penal and
'quasi- -penal treatment of convicted offenders, is new. Al-
' though it has had a statutory development of almost 60 years
and before that had undergone a long period of evolution 1n
the court‘s, it is still “the most modern concept .in the adminis-
tration of criminal- justice. That confusion exists as to its
nature and effect is apparent in cases and statutes 1 as well
as in the writings of laymen. As applied by modern courts
probation seeks to accomplish the rehabilitation of persons
convicted of crime by returning them to society during a
period of supervision rather than by sending them into the
unnatural and, all too often, socially unhealthful atmos-
phere of prisons and reformatories.

It has been referred to by one author as a type of “com-
munity treatment.” 2 Probation is the postponement of final
judgment or sentence in a criminal case, giving the offender
an opportunity to improve his conduct and to readjust him-
self to the community, often on conditions imposed by the
court and under the guidance and supervision of an officer of
the court. According to the Massachusetts court, “probation
looks to reformation and not to a final goal of punishment.” 3
The accomplishment of its purpose of rehabilitation will al-
ways depend upon the degree of efficiency with which its
individual components work. The successful application of
the probation method presupposes an adequate investigation

1Montgomery 1”. State, 231 Ala. 1, 163 So. 365 (1935) ; Kan. Gen. Stat. Ann.
(1935) § 12—1103; Iowa Code (1919) §§ 2254, 2255 (uses term “parole from
Bench” in describing what is obviously probation).

' Haynes, Criminology (1930) 351.

'Harks v. Wentworth, 199 Mass. 44, 46, 85 N. E. 81, 82 (1908).

(1)

2

into the facts of the defendant’s environment, character, an
previous record; a wise selection by the courts of offende
capable of benefiting by the treatment; and a zealous bu
sympathetic prosecution of his duties by the supervisor
oflicer.

Very frequently probation is confused with parol

‘ «‘ 3 There are: certain similarities between thetwo systems it i

t1 ue, but the underlying diffe1ence is tl1atpa1 ole presuppo
L [La prehmmarv period of incameration of the offender befor
his release under supe1visio1fl The p1 obationer, if he pass
successfully through the period of supervision set by tl
court, need never undergo imprisonment at all. The parol
on the other hand, especially in States where both syste
are in use, is often an offender who at the time of h
sentence was not deemed by the court to be capable
rehabilitation if returned immediately to society but mo
likely to succeed after undergoing an initial term of '
prisonment and institutional treatment. ________

However, it must be pointed out that while probation
almost universally a matter of judicial discretion parole,
most instances, is not so intimately connected with t
cou1ts Parole IS generally administered by separate boar
set up for the p11rpose,ja11d while a judge may 1ecomme
parole, his recommendation is not binding and may car
no more weight than the recommendations of the pris
authorities who have control of the offender’s person.

While the tendency to confuse probation and pardon
not so widespread, it seems worthwhile here to distingu'
between the two. A probationer is still a convicted offen
under the control of the court and subject, for a cert.
period, to imprisonment or other punislm1ent by the co
for violation of the conditions it imposed in granting p
bation. Pardons are of two kinds, fLIL and conditional.
who has received a full pardon has becmm f
member of the community without further penal liabil
for the wrong pardoned. Conditional pardon is somew
analogous to parole, particularly when granted afte
period of imprisonment.

3

Although there is conflict as to whether the granting of a
full pardon blots out guilt completely,4 it frequently oper-
ates so as to restore the civil rights that have been forfeited

upon conviction and imprisonment. Pardon is usually con- /

sidered as an act of mercy or clemency and is exercised by
the executive, although in some States this power to pardon
has been vested in special boards, set up for the purpose,
the Governor being as a rule a member ea: ofioz'o. Unlike
probation which generally comes before and is regarded as
a substitute for incarceration, and parole which usually fol-
lows partial execution of a sentence of imprisonment, a:
' pardon may be p; ranted at any time, either before, after, or
during imprisomnent, and its effect on the status of one
who receives it is generally the same, regardless of the
moment of its bestowal.

Another expression of executive clemency is commuta-
tion, although this power is in some instances exercised by
the courts. Commutation consists of the. 31W};

1e_§§1‘_]91_1,,__nlshmeELEM:hat.JYhich_was_originallximposedJ
SUQMLWntence 0._f._...n_§._ment.im ri on into
OHW.LBdu_Qfian—Lf11191921111.an
incarceration. It is made use of generally when new evi-
dence or circumstances later appear which make the original \\
sentence seem oppressive.

Probation was originally an outgrowth of suspended sen-
tences and its most striking difference is that the latter, as
a rule, is not accompanied by supervision. A more extended
treatment of the subject of-suspended sentence follows later
in the chapter.

 

COMMON LAW SOURCES

Modern probation legislation in the United States is gen-
,erally traced to at least two sources: The common law_
practice of suspending sentence for an indefinite time or-
during good behavior, which allegedly had its foundation
.in the practice of English courts, and early statutes specifi-
callaauthmziag courtswmmtion to;

 

‘ See Williston, Does a Pardon Blot Out Guilt! (1915), 28 Harv. L. Rev. 647.

4

suspend either the imposition or execution of sentence.5
brief examination of these earlier devices for mitigating th
the rigors of a mechanistic criminal law will serve as
basis for approaching some of the legal problems rai
in the administration of current probation statutes.

Benefit of clergy—The benefit of clergy furnishes an i
teresting instance of a device whereby certain persons we
permitted to escape the severe punishments of the earl
English common law. As Holdsworth aptly summariz
this institution, it was “in the earlier part of the Midd
Ages, the privilege of the ordained clerk accused of felon
but it was ceasing to be merely this at the latter part of t
mediaeval period; and it only secured the prolongation ofi
life until the nineteenth century by becoming a clumsy set
rules which operated 1n favor of all criminals to mitigate
certain cases the severity of the criminal law. ” 6

In the beginning of the thirteenth century only ordain
clerks, monks, and nuns could claim this privilege, as
result of which the criminal was delivered to the chur
courts to undergo such punishment as the church mig
provide. In the fourteenth and fifteenth centuries t
privilege of benefit of clergy was extended to persons 11
ordained, that is, to secular clerks but the royal courts to
control over the procedure by which it was claimed. 801
offenses in addition to those few excluded toward the e1
of the thirteenth century were added to the list of crimes f
which benefit of clergy was not available.

Later, it became necessary only for the accused person
be able to read in order to claim benefit of clergy. Duri
the reign of Henry VIII, many offenses were excluded fr

 

l‘Chute, The. Extension of Probation in Criminal Courts (1928) 136 A
Am. Acad. 136 at 137. “In fact the power of courts to suspend sente
upon which the probation system was based, had long been established in
English common law as a necessary right of the Crown and the State
offset the rigors of an overrigid and severe penal law." Chute. The Frog
of Probation and Social Treatment in the Courts (1933) 24 J. Crim. L.
at 62. “Under the common law of England there grew up various legal dev
for avoiding the rigid and severe punishment for crime which then charac
ized and still characterizes our penal laws. Chief among these was the
pension of sentence or the postponing of judgment on the part of the co
the ofiender being released on good behavior. The power of the court
suspend sentence indefinitely has been held as an inherent right of the co
in many of our States."

0 3 Holdsworth, A History of English Law (3d ed. 1923) 294.

5

the list of crimes to which benefit of clergy could be ap-
plied. However, in succeeding years many of these were
restored. The multitude of laws on the subject rendered
the operation of the privilege so technical and legalistic that
by the eighteenth century it bore scarcely a resemblance
to its original self. ”The benefit of clergy was finally
abolished in 1827.";
Many cases inmthe United States recognized the benefit of
clergy, both before and after it had been abolished in Eng-
and. But it is doubtful whether this device, as it existed
'n the American colonies, had any particular influence upon
he later development of suspension of sentence.8
Judicial repm'eve.—Since at the common law new trials
r appeals to another court were not possible, there grew
p a judicial practice of avoiding the. execution of a sen-
ence known as reprieve. Blackstone describes it in the
'ollowing language: “A reprieve, from reprendre, to take
ack, is the withdrawing of a sentence for an interval of
ime; whereby the execution is suspended. This may be,
rst, ea: arbitrz'o judicis (at the will of the judge) ; either
fore or after judgment; as where the judge is not satis-
ed with the verdict, or the evidence is suspicious, or the
ndictment is insufficient, or he is doubtful whether the
fi‘ence be within clergy; or sometimes if it be a small
elony, or any favourable circumstances appear in the
riminal’s character, in order to give room to apply to the
rown for either an absolute or conditional pardon. These
.rbitrary reprieves may be granted or taken off by the jus-
ices of gaol delivery, although their session be finished, and
heir commission expired: but this rather by common usage,
an of strict right.” 9 'But Blackstone makes it clear that
reprieve was only of a temporary character.

' 7 and 8 Geo. IV, ch. 28 (1927). See Holdsworth, op. cit... supra note 6, at 294
t seq. Another device for escaping punishment which featured the criminal
w of the Middle Ages was sanctuary and abjuration. By fleeing to a place
sanctuary before trial, the criminal could- gain partial immunity from pun-
hment; however, it was necessary for him to “abjure the kingdom” under
ain of immediate punishment upon return to England without Royal per-
ission. This institution was abolished in 1623—24. Holdsworth, op. cit. supra
ote 6, at 303 et seq.
' For an article on benefit of clergy in the United States, discussing numer-
3 cases, see White, Benefit of Clergy (1912) 46 Am. L. Rev. 78.
'4 Bl. Comm. *394.

6

' “i Other writers on the common law have referred to judici
reprieve in similar language.10 and there seems to be 11
doubt that it was a fairly widespread practice. However, '
must be pointed out that it was of a purely temporary n
ture and designed to meet situations which have been sin
remedied by reforms in criminal procedure."11 _

It is true that in some cases where the court granted a r
prieve for the purpose of permitting the convicted person
apply for a pardon the net result might be an abandonme
of the prosecution if no pardon was obtained. However,
does not appear that judicial reprieve in England was ev
extended to embrace what is now termed an indefinite su
pension of sentence, particularly in cases which presented
peculiar reasons, arising out of the lack of or limitations
procedure, for withholding execution of sentence.

Common law suspension in tlze United States.—On t
basis of these English precedents some American cour
sought sanction for the practice of suspending sentences f
an indefinite time. Others took the view that the Engli
practice was inapplicable to the administration of crimin
law, since the reasons for its existence in England did 11
obtain in the United States. Still others found an insup
able obstruction to the application of the doctrine in t
constitutional provisions granting the power of pardon a.
reprieve to the executive and in a strict interpretation
the theory of separation of powers.

Perhaps the most frequently cited case which justifi
an indefinite suspension of sentence on the ground that su
power had been exercised by the English courts and had be
subsequently recognized as a common law power of Ame
can courts was decided in New York in 1894.12 In this c
a young clerk in a mercantile firm had appropriated to

 

1° See 2 Hale P. C. *412; 2 Hawk. P. C. ch. 51, § 8.

1‘ It must be remembered that at the early common law the accused did
have the privilege of testifying in his own behalf nor were others permi
to testify for him; his guilt or innocence was determined on the basis of
evidence presented by the prosecution. Further, the person on trial could
retain an attorney to represent him. See Snodgmss v. State, 67 Tex. Cr.
150 S. W. 162 (1912) for a consideration of the rights of a defendant i
criminal case in the early English courts.

”People ea rel. Forsyth v. Court of SessiOns, 141 N. Y. 288, 36 N.
386 (1894).

7

own use some money belonging to his employers. He pleaded
guilty to grand larceny in the second degree, but since there
appeared to be mitigating circumstances in the case and
the youth had been of previous good character, the court
suspended the imposition of sentence during good behavior.
The district attorney, however, sought to compel the court to
impose sentence. There was an applicable statute authoriz-
ing the trial courts in certain cases to suspend sentence
during good behavior, but the State’s attorney argued that
this enactment infringed on the executive power of pardon.

The New York Court of Appeals upheld the action of
the trial court and found that the statute was constitutional.
However, the court stated that the statute “must not be
understood as conferring any new power,” because the
power to suspend sentence was inherent in all superior
courts of criminal jurisdiction at common law. Especial
reliance was placed upon the following quotation, attributed
to Lord Hale, as descriptive of the English practice: “Some-
times the judge reprieves before judgment, as where he is
not satisfied with the verdict, or the evidence is uncertain,
or the indictment. is insufficient, or doubtful whether within
clergy. Also when favorable or extenuating circumstances
appear and when youths are convicted of their first offense.
And these arbitrary reprieves may be granted or taken off
by the justices of gaol delivery, although their sessions be
adjourned or finished, and this by reason of common
usage.” 1'3 The second sentence of the above quotation,
which obviously fits the facts as stated in the F orsyth case,
is not to be found in any known edition of Lord Hale’s
Pleas of the Crown.“ In New Jersey, early cases 1“ upheld

13 PeOple ea: rel. Fm'syth v. Court of Sessions, 141 N. Y. 288, 293, 36 N. E. 386,
387 (1894). The reference is to 2 Hale P. C. *412.

1‘ The statement of Hale is as follows: “Sometimes the judge reprieves
before judgment, as where he is not satisfied with the Verdict, or the evidence
is uncertain, or the indictment insufficient, or doubtful whether within clergy;
and sometimes after judgment, if it be a small felony, tho out of clergy,
or in order to a pardon or transportation. Crompt. Just. 22. b. and these
britrary reprieves may be granted or taken oi! by the justices of gaol-delivery,
although their sessions be adjourned or finished, and this by reason of common
usage. Dy. 205. a." 2 Hale P. C. ‘412. The late Chief Justice White re-
ferred to the misquotation in the Forsyth case in these words: “* "" "
he error thus fallen into is t * * additionally shown by the fact that
he quotation from Hale’s Pleas of the Crown made in the opinion contains

73115—39—von. n———2

8

the courts’ power to suspend sentence indefinitely in th
absence of enabling legislation. It was recognized that vari
ous inferences had been drawn from the English precedent
but the court justified the practice on the ground that “a
indefinite suspension of sentencing has been the custom i
this jurisdiction beyond the memory of those now connecte
with the administration or practice of the criminal law i
this State.” 16 Pennsylvania 1" and New Hampshire

courts also took the view that they had full common 1a
power to suspend sentence for an indefinite length of tim

In North Carolina, the supreme court at first took th
View that after judgment courts “have no authority to rem
or mitigate the sentence of the law.” 19 However, this via
has since been abandoned and in numerous cases it has bee
held that either imposition 2° or execution 21 of sentence ma
be suspended for an indefinite period.

During the same period that these decisions upholdi
the common law power were being made, other cour
rendered contradictory pronouncements. Thus we find t
supreme court of Tennessee stating that. although the pow
may have been necessary in England at a time when t}
courts could not grant new trials and their judgments we
not subject to review, it was unnecessary in a jurisdicti
where such disabilities do not eXis .22 In Kentucky, t
practice of suspending the execution of a sentence was co
demned as “an attempted exercise of a power, not judici

 

clauses supporting the opinion expressed as to the common law when
clauses in question. it would seem. were by some error of citation mistake
attributed to Hale. We say this because the clauses * “ " are not to
in any edition of the Pleas of the Crown. which we have been able to exam
and it is stated by counsel for the United States that after diligent se'arch
passage containing the clauses has been discovered * * *" Ea: p
United States, 242 U. S. 27, 49 (1916).

15 See State v. Addy, 43 N. J. L. 113 (1881).

1" Gehrmann v. Osborne, 79 N. J. Eq. 430, 443. 82 Atl. 424. 429 (1912).

17 Comm. ea: rel. Naber v. Keeper, 6 Pa. Super. 420 (1898).

1’ Sylvester V. State. 65 N. H. 193 (1889); Philpot v. State. 65 N. H.
(1889) ; State v. Drew. 75 N. H. 402, 74 At]. 875 (1909).

1" State v. Bennett, 20 N. C. 170, 178 (1838).

20State v. Crook, 115 N. C. 760, 20 S. E. 513 (1894); State v. Hit
151 N. C. 687, 65 S. E. 1011 (1909).

2‘State V. Hailey, 110 N. C. 522. 14 S. E. 751 (1892); In re Hinson,
N. C. 250, 72 s. E. 310 (1911). '

”Spencer v. State, 125 Tenn. 64, 140 S. W. 597 (1911). Curiously en
the court misquotes Lord Hale in the same manner as was done in
Forsyih case.

9

but wholly executive in its nature,” and a failure to enforce
the law which “encourages crime and is a menace to good
government.” 23

The separation of powers doctrine proved a convenient
tool for wrecking any pretentions to judicial power of
suspension of sentence. In view of the command of the
constitution that “the legislative, judicial, and executive
powers shall forever remain separate and distinct,” it was
reasoned that if the court suspends sentence it “may in this
way indirectly grant a reprieve, commute a penalty, or
remit any part of a sentence, and thus practically exercise
powers which the constitution confers exclusively upon the
Governor * * *” 24

The confusion of the authorities was carefully reviewed
by the late Chief Justice White in the famous Killits
case,25 which decided that the Federal courts had no
power, in the absence of statute, to suspend execution in-
definitely. The common law power was summarized as
follows: “It is true that, owing to the want of power in
common law courts to grant new trials and to the absence of
a right to review convictions in a higher court, it is, we
think, to be conceded: (a) That both suspensions of sen-
tence and suspensions of the enforcement of sentence, tem-
porary in character, were often resorted to on grounds of
error or miscarriage of justice which under our system
would be corrected either by new trials or by the exercise
of the power to review. (6) That not infrequently, where
the suspension either of the imposition of a sentence or of its
execution was made for the purpose of enabling a pardon to
be sought or bestOwed, by a failure to further proceed in the
criminal cause in the future, although no pardon had been
sought or obtained, the punishment fixed by law was es-
caped. But neither of these conditions serves to convert
the mere exercise of a judicial discretion to temporarily

xiBraba'ndt V. Comm., 157 Ky. 180, 162 S. W. 786 (1914).

24Neal v. State, 104 Ga. 509, 511, 30 S. E. 858. 859 (1898). See also
Fuller V. State, 100 Miss. 811, 57 So. 806 (1912) ; In re Flint, 25 Utah 338,
71 Pac. 531 (1903) ; Ea: part6 Clendenm'ng, 22 Okla. 116, 97 Pac. 650 (1908).
For a good collection of cases on indefinite suspension of sentence, see Barnett,
Ewecuti've, Legislature, and Judiciary in Pardon (1915) 49 Am. L Rev. 684,
709 et seq. _

”E’s; parte United States, 242 U. S. 27 (1916).

10

suspend for the accomplishment of a purpose contemplate
by law into the existence of an arbitrary judicial power t
permanently refuse to enforce the law.” 2"

For practical purposes it may be said that this decisio
served to explode the erroneous belief that had grown up i
some States and, moreover, paved the way for statute
expressly authorizing suspension of sentence and probatio
At the time the decision was criticized as unsound bot
from a logical and historical standpoint,27 but it cann
now be doubted that both Federal and State probation hav
enjoyed a growth which might well not have occurred b1
for a definite and authoritative statement that further d
velopment must be sought within the framework of permi
sive legislation.

iIt may be concluded, therefore, that there 1s no historic
warrant in the English common law for the claim th
American courts have an inherent power to suspend se
tence indefinitely. 2" Where this power has been asserted
has been based on a misconception of English authorities
recognized because it tempered the criminal law with mer
and had grown as a local practice. However,,,despite the
misconceptions, or perhaps because of them, ‘there has be
a steady growth in suspension and probation legislati
which represents a new philosophy in the administration
criminal justice;

STATUTORY POWER TO SUSPEND SENTENCE

Logically, it would seem that those jurisdictions whi
have denied, on constitutional grounds, the inherent po
of their courts to suspend sentence indefinitely would
compelled on the same reasoning to deny to their legislatu
power to confer such authority on the courts by stat1
If suspension of a criminal sentence on good behavior b
court acting without statutory authority for the proced
be an invasion of executive power, a consistent applicat
of the separation of powers doctrine would seem to requ

3° Ea: parte United States, 242 U. S. 27, 44 (1916).

27 Note (1917) 30 Harv. L. Rev. 369.

3' See Bruce, The Power to Suspend a Criminal Sentence for an Indefl
Period or During Good Behavior (1922) 6 Minn. L. Rev. 363.

11

the holding that the attempt to confer such authority on
the courts by statute would be equally an attemptto usurp
the pardoning power on the part of the legislature. f Curi-
ously, only a few courts have felt themselves impelled to
make any such decision, even in the light of their own
earlier holdings in regard to the inherent power of the
courts in the matter.

- Alabama has repeatedly refused to countenance any
attempt to suspend sentence, either by independent judicial
action or by action of the courts with statutory sanction.
In 1918, in the case of Vinson v. State the court said: “The
' effect of holding that trial judges have the power to fix
punishments and then to postpone indefinitely the execution
of them would be to transfer the pardoning power from
the Governor to as many men as the State has trial judges,
and thereby to set at naught the plain mandate of the. Con:
stitution.” 2" A suspension of sentence statute was passed
by the Alabama Legislature 3° but the court held that the
suspension under this statute must be to a definite date,31
and not an indefinite suspension “pending defendant’s good
behavior.” 32 Alabama has carried to its inevitable con-
clusion the consistent application of the separation of
powers doctrine as applied to this situation and in 1935
declared unconstitutional the probation statute of 1931, say-
ing, “It seems clear to us that if a court with ‘original juris-
diction to try criminal actions’ has no inherent power to
suspend sentences, and it has none in this State, * * *
the Legislature would be powerless to supply that power to
the court. This for the all-sufficient reason that the Con-
stitution intervenes, and denies this right to the Legisla-
ture.” 33 It is apparent that the Alabama court feared that
it might be accused of carrying logic too far in view of the
fact that in other States no such compulsion to arrive at
the reasonable outcome of their earlier holdings seemed
to have troubled the courts. There is some attempt in the

2" Vinson v. State, 16 Ala. App. 536, 79 So. 316, 317 (1918).

”Ala. Code Ann. (Michie, 1928) § 5284; Ala. Local Acts 1919, p. 121.

“Snyder v. State, 18 Ala. App. 188, 90 So. 40 (1921); Clarke v. State,
20 Ala. App. 472, 102 So. 916 (1925).

*2 Vinson v. State, 16 Ala. App. 536, 79 So. 316 (1916).

33Montgomery v. State, 231 Ala. 1, 6, 163 So. 365, 370 (1935).

12

case to distinguish the decisions in other jurisdictions o
the ground that in other States the exclusive power t
“parole” was not vested in the Governor.

Legislative power to enact suspended sentence laws hr
been unqualifiedly denied in South Dakota 3* and i
Nevada. In State v. Moran the Nevada statute permittin
the court at the time of imposing sentence to direct that '
be suspended where the case involved a judgment for
fine, with a jail sentence in default of payment, was hel
to be unconstitutional. The court said: “We see no escap
from the conclusion that the authority to suspend collectio
of a fine can be exercised only in the manner provided in t1
Constitution. * * * To confer such authority upon
trial court would be to give it, though subject to 100
influences and environment, greater power than that po
sessed by the Chief Executive of the State.” 35

In Texas the first statute providing for suspension
sentence was enacted in 1911 36 but was immediately he
unconstitutional as an interference with the Governor
power to grant pardons, reprieves and commutations
Later, in 1913, a new act was passed which provided for s
pension of sentence by the jury, and the court, in imposi
sentence, was compelled to follow the jury’s recommen
tion.88 In so doing it was believed that the court exercis
no power of clemency. The transfer of the suspensi
power from the court to the jury evidently satisfied t
higher court and the act was held constitutional as witl
the power of the legislature to define offenses, and to
the punishment to be inflicted upon the offender.39 VVhetl
this opinion is to be regarded as a regrettable attempt
the part of the court to deceive itself in favor of the c
stitutionality of the statute cannot now be determin
However, this act remains the law of the State. The con
tutionality of an amendment of 1931 4° which authori

“State ea: rel. Payne v. Anderson, 43 S. D. 630. 181 N. W. 839 (1921).
3”State v. Moran, 43 Nev. 150, 153, 182 Pac. 927 (1919).

a"Tex. Laws 1911, ch. 44.

a":S’nodgrasa v. State, 67 Tex. Cr. 615, 150 S. W. 162 (1912).

31'Tex. Laws 1913, ch. 7.

39Baker v. State, 70 Tex. Cr. 618, 158 S. W. 998 (1913).

“Tex. Laws 1931, ch. 43. j

 

. _ . . l
, t I .
_ _‘_,_.,_‘._,__ ,rflwwW—nn - -« n

5‘ it- 2.95 _., JL- '-" "
" ‘ ; .j :

3. -,_.. ..A- -.

13

the court to suspend sentence when the; defendant has
pleaded guilty and waived the right to a j ury; trial has never
been decided. That it will now be challenged is unlikely in
view of a recent constitutional amendment authorizing the
enactment of a probation law in Texas.41

West Virginia has refused to its legislature the right to
confer authority to suspend sentence indefinitely on the
courts of that State. In State ea: rel. H allcmcm v. Thomp-
son 42 it was held that a statute which had been interpreted

» by a justice of the peace as giving him the right to suspend

a jail sentence would, if so construed, conflict with the con-
stitutional power of the Governor to grant pardons, and
would, therefore, be invalid. The court therefore construed
the statute as merely granting discretion to suspend a part
of sentences requiring defendants to work upon the public
roads in cases where it appeared -that defendants were
physically unable to perform such labor. It is doubtful
whether any such limitation had been intended by the legis—
lature in passing the statute in question.

In North Dakota a statute in terms authorizing North
Dakota courts to suspend sentences was held valid but only
after the court had construed it to confer merely a power
to suspend sentences temporarily. In holding the act con-
stitutional, the court said: “There can be no doubt that the
power ‘to remit fines and forfeitures, to grant commutations
and pardons after convictions, for all offenses except treason
and cases of impeachment’ was by the Constitution vested
wholly and exclusively in the Governor;” that a later con-
stitutional amendment “took this exclusive power from the
Governor and vested it in the board of pardons, of which
the Governor is a member, and that the sole and exclusive
power in such matters now rests in that board * * *
To construe the statute as granting the power to the trial
court to commute a sentence or to pardon the offense would
be to render the statute unconstitutional. To hold that the
suspension is indefinite and only for a reasonable time and
for the purpose of affording the prisoner, if he desires, an

“Tex. Const. art. IV, §11A.
”80 W. Va. 698, 98 S. E. 810 (1917).

14

opportunity to apply for executive clemency would rend
it valid. We so construe it.” 43

Many jurisdictions have not passed directly on the vali
ity of suspension of sentence statutes. However, many cas
which have denied to courts the right to suspend sentenc
indefinitely, even where such decisions have invoked the se
aration of powers doctrine, have also suggested that legi
lative action 011 the subject would be the proper means
securing such authority for the courts.‘14

By far the larger number of States have upheld the le
lative power to pass permissive statutes granting to t
courts power to suspend sentence during good behaviorig
many; of these States, no attempt has been made to reco
cile earlier decisions which might seem to require a difiere
result, and the statutes have been upheld without much co
ment or question.‘15 Other States, embarrassed by no p
vious decisions, or by decisions merely denying the inher
or common law power of the courts in the matter, 11
carefully pointed out that indefinite suspension of sentei
“does not have its source in an exercise of the pardoni
power. It comes in the due course of the operation of
sentence under the provisions of law which prescribe wl
it may be and its incidents.” 4" In New Mexico and VVa.
ington, it was held that such statutes do not encroach
the constitutional powers of the executive to grant reprie
and pardons.47 The Michigan court has said that “It
never been supposed that the power of courts to susp

 

“In re Hart, 29 N. D. 38, 46. 149 N. W. 568, 569 (1914).

“Ea: parte United States, 242 U. S. 27, 52 (1916); Em parte Stein"
35 Ohio App. 491, 497, 172 N. W. 623, 625 (1930). In State v. Ab
87 S. C. 466, 470, 70 S. E. 6, 8 (1910), the court in holding a suspei
sentence during good behavior to be invalid said: “The legislative power t
punishment for crime is very broad, and in the exercise of this power
general assembly may confer on trial judges if it sees fit. the largest discr
as to the sentence to be imposed, as to the beginning and end of punish
whether it should be certain, or indeterminate, or conditiOnal.” The s
to this case was the act of February 15, 1912, which was upheld in Sta
Teal, 108 S. C. 455. 95 S. E. 69 (1917).

“In re Gianini 18 Cal. App. 166, 122 Pac. 831 (1912); Martin v. P6
69 C010. 60, 168 Pac. 1171 (1917); Richardson v. Comm., 131 Va. 802,
'S. E. 460 (1921).

‘0 Bclden V. Hugo, 88 Conn. 500, 507, 91 At]. 369, 371 (1914).

‘7 Ea: parte Bates, 20 N. M. 542, 151 Pac. 698 (1915) ; State ea: rel. Tin
v. Starwa‘ch, 119 Wash. 561. 206 Pac. 29 (1922).

15

sentence was other than a judicial function.” 48 Although
the Illinois court had refused to permit imposition of sen-
tence after indefinite suspension and a long lapse of time,
it held in regard to its suspension of sentence statute that,
“we know of no reason why the legislature may not give
the courts the power, in certain classes of cases, to suspend
sentence on‘ the defendant entering into a recognizance, and
thereafter impose sentence and enforce its execution.” ‘9

In the famous Fo-rsyz‘lz. case,50 although the bulk of the
court’s opinion was devoted to an exposition of the common
law power of courts in New York to suspend sentence in—
definitely, the New York suspension statute was allowed
to stand although the court declared that it granted no new
0r additional power. In People v. Stickle ‘1 the court fol-
lowed the same reasoning in regard to a Michigan statute
and said that the power of courts to- suspend sentences “has
been frequently and constantly exercised by courts of record
before and since the adoption of the Constitution. * * *
Assuming the power to be, as it was at common law asserted
to be, a power inherent in courts, no new power is conferred
upon courts when the legislature authorizes courts to sus-
pend sentence.” 52

EARLY DEVICES TO ALLEVIATE PUNISHMENT IN
MASSACHUSETTS

Any attempt to trace the origins of probation in the United
States must, of necessity, concern itself primarily with Massa;

chusetts for it was in that State that the courts first attempted I
tflssenihefigw‘wntmnporary criminal law prro-

cgdures which were informal and occasionally extra-legal.
In such procedures are to be found the legitimate origins of
all later probation laws and practices. It is true that a few
courts in other jurisdictions made limited use of suspended

 

“People V. Stickle, 156 Mich. 557, 563, 121 N. W. 497, 499 (1909).

‘9 People v. Heise, 257 I11. 443, 450, 100 N. E. 1000, 1003 (1913).

I”People ea: rel. Forsyth v. Court of Sessions, 141 N. Y. 288, 36 N. E. 386
(1894).

“People v. Stickle, 156 Mich. 557, 121 N. W. 497 (1909).

53156 Mich. 557, 563, 121 N. W. 497, 499 (1909). Of. People V. Brown,
54 Mich. 15, 19 N. W. 571 (1884) ; People v. Reilly, 53 Mich. 260, 18 N. W.
849 (1884).

16

sentences for the purpose of saving many ofi‘enders fro
unduly harsh judgments. But in no other State did t
discretion and ingenuity exercised by the courts flower dire
1y into a workable and usable system with clearly defin
characteristics. {llamas in Massachusetts that the first tr
probation laW Was enacted. It was, later in Massachuse
that early experiments in the development of the system w

conducted and evaluated. In short,{ probation in the Uni

’States has no early history apart from the development

the Massachusetts system. .

It IS apparent f1 om the foregoing section that the con
tion of probation as an outgrowth of the common law po
of courts, in England and the United States, to suspe
sentence is erroneous. Unfortunately this mistaken idea
gained wide currency even among those best informed on
subject of probation. It is, unhappily, a matter open to lit
controversy that no power of indefinite suspension of sente1
for the purpose of exempting the defendant from the p
scribed forms of punishment ever existed in the common 1
of England. This fact has already been pointed out. Tr
because persons convicted of crime in the English co
were not entitled to a new trial, or to an appeal to a big
court on the facts, a limited form of suspension of sente
known as reprieve was employed by the judges.53 Th

. is, no doubt, more than a modicum of good reason in tr
ing the later pretensions of American courts to a power
indefinite suspension of sentence back to this early prac
of reprieve in the English courts. But reprieve as kno
there was infinitely narrower both in application and in
cept than the “suspended sentence” Which has been deno
nated the immediate ancestor of probation in this coun
However, it may be conceded that American courts, part'
larly those of Massachusetts, looked to the old narro
circumscribed suspension of sentence in the English co
and seized upon it as an excuse and foundation for
assumption of a latitude in discretion which the Eng
common law never envisaged.“

I“'4 Bl. Comm. *393; see also 2 Hale P. C. *412.
“See Note (1917) 30 Harv. L. Rev. 369.

17

It is undeniably certain that courts in the United States,
especially those in Massachusetts, on whatever .basis or
theory, did in fact engage in the practice of suspending the
sentences of convicted persons, and this over a long period of
years. The exact warrant upon which this emboldened use\) /..
0me
record; if, indeed, it was ever recorded. It is impossible now
to be certain whether courts used this concept of suspended
sentence, erroneously believing that they were acting on well
established precedent in the English courts, or whether they
were merely following a local tradition which may have.
grown up either as a result of error or which may have been
based upon some original usurpation of the courts them-
selves. “ Massachusetts, acknowledged as the State 1n which
probation had its first development invented a variety of
devices to alleviate. the lot of convicted offenders during 1
the “bloody period of criminal administration...” 56

At this point it should be made clear that the practices
which developed in Massachusetts, and which eventually
achieved their ultimate form as probation laws, were inau-
gurated by the courts as an effort to soften the rigor and
cruelty which the laws of the times exacted. It must be
remembered that capital punishment was the almost uni-
versal penalty for felonies, and corporal punishments, in- 7
eluding flogging and mutilation, a common judgment upon
misdemeanants.“

Benefit of clergy.——In common with the accepted English
practice 58 and the practice in many American jurisdic-
tions,59 the benefit of clergy was invoked by and granted to
offenders in Massachusetts. This privilege was for a time V"
regarded as a part of the common law.60 Gradually, after
the adoption of the Federal Constitution, benefit of clergy
fell into disrepute because of the unequal application of
the law which was its inevitable result and was finally

“Comm. v. Dowdican’s Bail, 115 Mass. 133 (1874).

lWGrinnell, Probation as an Orthodox Common Law Practice in Massachuc
setts Prior to the Statutory System (1917) 2 Mass. L. Quar. 591, 595. f

“See 4 Bl. Comm. *9 77.

“4 B1. Comm. *365 et seq.

'9 White, Benefit of Clergy (1912) 46 Am. L. Rev. 78, 91.

“Bishop, Criminal Law (8th ed.) §936, p. 565.

18

\/ abolished, either by decision or statute in almost all Amei

A_ .. 1.. .. ....~—a

can jurisdictions. Massachusetts abandoned the plea
statute in 17 84.61

Security for good behavior.—Grinnell describes a seco
method utilized in Massachusetts to mitigate the severity
punishment. This was a process of holding to security f
good behavior or “good abearance.” “2 Some evidence of t
existence of this method in other jurisdictions is to be fou
in the early Pennsylvania case of Commonwealth v. Dua
where Chief Justice Tilghman said:

Surety for good behavior may be considered in two poi
of view. It is either required after conviction of some
dictable ofi'cnse, in which case it forms part of the judgm
of the court, and is founded on a power incident to courts
record by the common law, or it is demanded by judges
justices of the peace out of court, before the trial of
person charged with an offense, in pursuance of author
derived from a statute, made in the 34th year of Edward

 

This method was common in New England. It was
confined to any class of persons as was benefit of cler
and had obviously gone far beyond the older form of
prieve recognized by Hale and Blackstone.

What must have been a very real conviction on the p
of the Massachusetts judges that penalties provided in
statutes were excessive is made evident in the number
variety of means by which they sought to make their ju
ments more humane. A practice generally ridiculed a
later period was that of subjecting the indictment to
keenest technical scrutiny and granting motions to qu
after verdict, with the result of freeing the prisoner wl
ever the slightest error appeared.64 Sus ension of sente

combined wi ° dicial recommendation of pardon was 8

another practice resorted to by the'judges in their attem

t0 EffpéiififgfisaYifiLeeféy-“s "

fl

 

.__ ...__.

‘1 See Mass. Rev. Stat. (1836) ch. 133, § 15.

02 Grinnell, supra note 56, at 598.

03 1 Binney 99 (Pa. 1806) [italics supplied].

“Grinnell, supra note 56, at 600. Indictments were treated with
technical strictness in the early English courts. 4 Bl. Comm. *393. n. 2.

“Grinnell, loc. cit. supra, note 64.

19

About 1830, a variation on the practice of making recog-
nizance for good behavior is to be noted as it appears: in
the case of Commonwealth v. Chase.“ In Judge Thacher’s
opinion in that case we find the following statement:

The indictment against Jerusha Chase was found at the J an-
uary term of this court, 1830. She pleaded guilty to the same,
and sentence would have been pronounced at that time, but
upon the application of her friends, and with consent of the

attorney for the commonwealth, she was permitted, upon her

recognizance for her appearance in this court whenever she
should be called for, to go at large. It has sometimes been
practiced in this court, in cases of peculiar interest, and in
the hope that the party would avoid the commission. of any
offense afterwards, to discharge him on a recognizance of this
description. The effect is, that no sentence will ever be pro-
nounced against him, if he shall behave himself well after-
wards, and avoid any further violation of the law.“

Apparently the procedure outlined in Commonwealth v.
Chase was commonly employed in Judge Thacher’s court.“
In Thacher’s use of the suspended sentence in this form, we
see not merely the enlightened administration of one court,
but a reflection of the trend of the best informed and most
thoughtful public opinion of the day. In the pages cf the
North American Review, founded in 1815, it can be seen
that the thoughtful and far-sighted men of the times had
followed the work of Beccaria, Bentham, and Romilly and
that the problems of criminal administration were agitating
men’s minds on both sides of the Atlantic.89

Already, signs had begun to appear in the statutes of
Massachusetts, pointing to a change in the attitude of law-
makers, and we see the beginnings in- legislation of a more
flexible and individualized treatment of offenders. When
the first general revision of the Massachusetts statutes. was
made in {SEE/the commissioners entrusted with this task

0‘ Commonwealth v. Chase, Thacher’s Criminal Cases 267 (1831) ; recorded in
vol. XIX of the Records of the 01d Municipal Court of Boston, p. 199.

"The importance of this case is increased by a footnote on p. 270 which
records that a petition for certiorari was brought to reverse Judge Thacher’s
decision; that upon hearing of this appeal Chief Justice Lemuel Shaw de-
livered an opinion sustaining Judge Thacher in which the other judges of
the court were understood to concur. Grinnell, supra note 56, at 603.

“3 00mm. v. Miller Snell (1932), cited in Grinnell, supra note 56, at 604.

‘9 Grinnell, supra note 56 at 605.

20

proposed a new section 9 of chapter 143, relating to “dete
tion and imprisonment, etc.,” as follows:

SECTION 9. When any person shall be brought before a m
istrate, upon a charge growing out of any ofiense mentioned
the fifth section,“ except persons who shall be committed
stealing money or, goods not exceeding the value of five (1
lars, such magistrate, or the court before which such ca
may be carried by appeal, may, in any stage of the proceedin
direct the respondent or appellant to be discharged, upon 1
entering into a recognizance, in such sum as the magistrate
court shall direct, with sufficient sureties, for his good
havior, for a term not less than six months, nor more th
two years, and paying the costs of prosecution, or such p
thereof as the magistrate or court shall direct.’r1

This proposed section became a part of the Revised Statu

of 1836. -
The motives of the Commissioners in proposing this 11

section are explained in their report:

* * "' an alteration * * * which they are led to b
may produce a salutary efiect, if adopted. This altera
consists in the discretionary power proposed to be given to
courts and magistrates, before whom this class of often
may be brought, to discharge them, if they have any frie
who will give satisfactory security for their future good
havior, for a reasonable time. When such sureties can
obtained, it can hardly fail to operate as a powerful c
upon the conduct of the party, who is thus put upon his g
behavior. And if his character and habits are such that
one will consent to be sponsor for him, it must forcibly
press on his mind the value of a good character, while it
prives him of all ground of just complaint of the severit
the law, or the magistrate.’2

The commissioners’ note reveals the emergence of a
purpose i the Massachusetts scheme of dealing with
fenders. The original impetus for the development of
practice of suspending sentences indefinitely on the g
behavior of the defendant was the desire to be merci

7° Sec. 5 referred to rogues, vagabonds, idle and dissolute persons, jug
common pipers and fiddlers, disorderly persons, and other petty offenders.

”Mass. Rev. Stat. (1836) ch. 143, § 9. This statute was necessary de
the fact that Massachusetts courts had asserted their inherent powe
suspend sentence. It relates to magistrates’ courts, which were not
tinuing courts and which did not possess the power in the absence of stat
authority. See 00mm. v. Maloney..145 Mass. 205 (1887).

7’ Cited in Grinnell, supra note 56, at 610.

21

Years of experience with a milder and more individualized
type of treatment, however, had had a more practical efi'ect
upon the apprehension of the problems involved in the ad-
ministration of criminal justice. To the courts and to their
contemporaries it had, no doubt, been repeatedly demon-
strated in individual cases, that 'a practice conceived in
mercy and humanity of spirit was bearing fruit in the per-
manent reclamation of offenders, that society as well as the
individual was being served.

F z'ling ——Finally, the practice of “filing,” peculiar to
Massachusetts, must be mentioned. This procedure is best
described by Chief Justice Gray.

It has long been a common practice in this Commonwealth,

after verdict of guilty in a. criminal case, when the Court is
satisfied that, by reason of extenuating circumstances, or of the

pendency of a question of law in a like case before a higher .

court, or other sufficient reason, public justice does not require
an immediate sentence, to order with the consent of the defend-
ant and of the attorney for the Commonwealth, and upon such
terms as the Court in its discretion may impose, that the
indictment be laid on file; and this practice has been recog-
nized by statute (Sts. 1865, ch. 223; 1869, ch. 415, § 60). Such
an order is not equivalent to a final judgment, or to a nolle
proseqm’ or discontinuance, by which the case is put out of
court; but is a mere suspending of active proceedings in the
case, which dispenses with the necessity of entering formal
continuances upon the dockets, and leaves it within the power
of the Court at any time, upon motion of either party, to bring

the case forward and pass any lawful order or judgment.

therein."

NACTMENT OF FIRST PROBATION STATUTES IN MASSA~
CHUSE'I'I‘S AND OTHER NEW ENGLAND STATES

Commonwealth v. Dowdican’s Bail precedes by only four

ears the formal incorpOration of the concept of what we now
now as probation into the statutes of Massachusetts. It

ay, in fact, be regarded as one of the last pronouncements
n the courts of that jurisdiction in the matter of judicial
.uthority to suspend sentence, since from 1878 onward Mas~

7300mm. v. Dowdican’s Bail, 115 Mass. 133 (1874). The two statutes re-
erred to by Chief Justice Gray do not appear to have been considered as

reafing the power as to cases in general but simply as regulating the exer.

ise of general power in specific cases. Grinnell, supra note 56, at 611—612.

m_.“__~..... .. ._....- -.

22

Sachusetts courts were to operate in this matter under 11
questionable statutory authority. However, it is to t
j‘udiciaryof Massachusetts that credit must be given for t
evolution of probation as a part of the administrati
processes of criminal justice in this country.“ It was
the courts, especially those of Boston, that the idea was be
and nurtured and allowed to follow a natural developme

/ A large measure of the successful application of probati
statutes later may be attributed to- the fact that probati
grew up originally as a discretionary process in the cour
unhampered by previous legislative limitations, so that
was possible for the judges themselves to ascertain fr
personal experience, individual judgment, and from
wealth of existing precedent in their own courts, the b
practices to follow in particular cases and gradually to or
‘tallize their experience into a method. Vlt is this circu
stance which must be regarded as the explanation of
fact that probation was already a workable system whe
received its first statutory sanction and expression.

/ In 1878 the Massachusetts Legislature passed what may
considered the first probation statute. Though this law
lated only to the courts of criminal jurisdiction in Sufi
County (Boston),:it contained all of those elements wl
today are deemed the fundamentals of a probation syst
Because of the influence which this statute exert-ed u
the subsequent development of the administration of or
inal justice, the fact that only a few of its essential feat-1
have been modified or abandoned to any appreciable ex
is noteworthy.” This fact is an indication of the degre

 

'7‘ No consideration of the development of the probation practice in M
ehusetts can fail to recognize the invaluable services of the first volu
probation oflficers, John Augustus and Father Rufus Cook. Their work
nished a final impetus for the enactment of the first probation statute in

“‘5 Mass. Acts 1878, ch. 198. “AN ACT RELATIVE TO PLACING 0N PBOB
PERSONS ACCUSED on CONVICTED OF CRIMES AND MISDEMEANORS IN THE C0
01“ SUFFOLK.

“SECTION 1. The mayor of the city of Boston shall appoint, annually i
month of May and whenever a vacancy occurs, either from the police
of'said city or from the citizens at large, a suitable person whose du
shall be to attend the sessions of the courts of criminal jurisdiction
within the county of Suffolk, to investigate the cases of persons charged
or convicted of crimes and misdemeanors, and to recommend to' such c
the placing on probation of such persons as may reasonably be expect
be reformed without punishment. -If such officer shall be appointed fro

23

which the courts of the commonwealth had advanced in
developing their system of suspended sentence procedure.
reading of the statute itself reveals that the only feature
ew to the system already in use was the provision that the
ayor of Boston should appoint a salaried probation officer.
It is to be noted that in this, the first legislative pronounce.
ent in the field, the word probation is used without expla-
ation or definition. In this connection, Mr. Herbert C.
arsons, long secretary of-the Massachusetts Commission on
robation, has made some interesting observations:

That the word itself is graphic and precise may be concluded
from the fact that in no statute yet written has it been found
necessary to make a definition. It was seized from the language,
not so much of common use, as of that made somewhat familar
in the field of theology. In those precincts it is not modern.
In the burial ground of the Pilgrims at Plymouth, a tombstone
bears this inscription: ‘

“In memory of Frederick, son of Mr. Thomas Jackson and
Mrs. Lucy, his wife, who died March 15, 1778, aged one year
and five days.

“0! happy Probationer! accepted without being exercised, it
was thy peculiar privilege not to feel the slightest of these
Evils, which oppress thy surviving kindred.”

tizens at large his appointment shall be subject to the c0nflrmation of the
ard of aldermen, and he shall receive such compensation. to be paid from
e treasury of the county of Suffolk, as the city council may determine. Such
cer shall be under the general control of the chief of police of said city
(1 be allowed a place in his office. He shall make reports as often at least
once in every 3 months. to said chief of police of the duties performed
der this act together with the names of all persons placed on probation,
eir residences, and the nature of their offenses. In cases where it shall be
emed advisable by such officer that such persons shall be sent beyond the
its of the Commonwealth at the expense of said city, the city council
all have authority to appropriate such sum as may be necessary therefor,
(1 said sum may be expended by said officer under the direction of the chief
police. and an account of said expenditures with the items thereof shall
rendered in said reports. It shall be the further duty of such officer so
as the same is practicable, to visit the offenders placed on probation by
court at his suggestion, and render such assistance and encouragement as
11 tend to prevent their again offending. Any person placed upon probation
0n the recommendation of such officer may be rearrested by him upon the
proval of the chief of police, without further warrant, and again brought
fore the court; and the court may thereupon proceed to sentence or make
ch other disposition of the case as may be authorized by law. Such oflicer
y at any time be removed from office by the mayor.
“SEC. 2. Nothing herein contained shall authorize such oflicer to interfere
th any of the duties required of the visiting agent of the board of State
rities under the laws of this Commonwealth relating to juvenile offenders.
“SEC. 3. This act shall take effect upon its passage.”

73115—39—von. 11—3

24

In passing, it maybe noted that this demise occurred preci
a century before the first probation law came to relieve “
viving kindred” of certain of “those Evils” which “oppres
intervening generations."m
Two years after the passage of the statute of 1878, anot
law was enacted permitting cities and towns to app
probation officers." This statute, however, left the appo
ment of such officers to the option of the particular town
city, and few exercised the power. Stategide probatio
Massachusetts dates only from 1891, when, following ag
tion by the Prison Association of Massachusetts,78 an act
passed transferring the power of appointment from
municipal authorities to the courts,79 and making such
pointment mandatory instead of permissive. Each p
district and each municipal court was required to appoi
probation officer. In addition to creating a truly State-x
system of probation, this act remedied what had been 0
cized as a defect in the original statute, the vesting of
appointive power in the municipal authorities rather tha
the judges who would be less apt to be influenced by poli
consideration. Seven years later the authority to ap
probation oflicers was extended to the superior cou
Here again, it is of some importance to observe that
a probation system in Massachusetts was first put into 01
\ tion in the lowest courts, while in other States the sy
was first applied in the superior courts and very sl
extended to police and magistrates courts.
The important fact to bear in mind in regard to the
of 1878 and other acts relating to the lower courts an
Act of 1898 relative to the Superior Court is that the ob
purpose of the acts was not the creation of a new 311
power, but the provision for the appointment and paym
special officers to assist the court in the exercise of a
established and well-recognized and approved existing
the nature of which was such that it could not be exe
to its full extent and with best results by the Court w
special assistance and appropriation of funds to aid the
by the investigation of facts.81

 

7° Parsons. Probation and Suspended Sentence (1918) 8 J. Crim. L. 69
"7 Mass. Acts 1880. ch. 129, § 1.

'8 Haynes. Criminology (1930) 353.

"Mass. Acts 1891. ch. 356, §§ 1, 6.

”Mass. Acts 1898. ch. 511.

‘1 Grinnell, supra note 56, at 614.

.25

When the present century opened, only six States recog- ./

nized, in statutes, the word probation and what it implied.
But of these, Illinois, which had passed the pioneer juvenile
court act in 1899, and Minnesota did not authorize the use
of probation for adults. In 1% the same year in which
probation was authorized in the superior courts of Massa-
chusetts, Vermont adopted its first probation law becoming
thereby the WadanflIe county plaflm TheVer-
mont act required the appointment of a probation officer
by the county judge in each county of the State, each officer
to serve all the courts in his county.82

V’In the following year, 1899, Rhode Island became the
fiWa system which W&S__b«Q§h.mState-_W1de
anWflefi,,_ By legislation in that year, courts
in Rhode Island were empowered to “provisionally place
any offender” at any time before sentence on probation, with
the exception of certain ineligible cases, falling into cate-
gories similar to those excluded later in probation statutes
of other States.83

It is important to note that the hope of reformation in
offenders, as expressed in the law, is of much more ancient
origin [than the last half of the nineteenth century]. As to
juveniles, it at least dates back to the first reformatory, which
was an industrial school for boys, followed by the similar
institution for girls, the reformatory for women, and then for
men. But this earlier movement was based on the belief that
reform was an institutional undertaking.“ Probation came as
a protest against that notion and as an assertion that the
moment to undertake the restoration to right conduct by an
upbuilding process is the precise instant when the ofiender
comes within the cognizance and control of the Court. It is

 

 

8’Vt. Pub. Acts 1898, No. 128.

9" R. I. Acts and Resolves 1899, ch. 664, §§ 5, 7.

“An interesting expression of the attitude of many courts toward a newer
concept of reform is found in Commonwealth v. Mayloy, 57 Pa. 291, 298
(1868). In that case Thompson, C. J., said: “It cannot be doubted, I think,
that the practice claimed, although it might be a great relief to the mind
of a judge, would, to a great extent, be destructive of one of the objects of
punishment, namely, the reformation of the offender. Let it be understobd
that he may have a portion of his sentence remitted any day by the judge,
he will occupy his thoughts with the expectation, daily and hourly, and
scheme and labor for the result. In such a state of mind reformation would
be out of the question. His term of punishment would always be an un-
certainty to him. A practice fraught with such results could scarcely have
its origin in any considerable amount of experience in dealing with convicts,
and ought to be regarded as an argument against its existence altogether.”

26

that vital feature which signalized this development, and
demands a consideration of how far it has justified itself,
how much of light there is in the hope for its much 111
complete adoption in our country.“

FURTHER ADOPTION OF PROBATION STATUTES

Although probation had been developing in Massachus
over a long period of years and was finally enacted i
. law there in a form which was to set the pattern for
,5 subsequent development in the field, before the, year 1
*4": only six States had adopted probation legislation, and
these only three dealt with adult probation.86 It is, th
fore, for the most part in the United States, a relatively
method of dealing with criminals, having grown up actu
over a period of less than 40 years. Within that perio
development has been more or less sporadic and at ti
progress has been disappointingly slow.

It is also to be noted that although in those New Eng
States where probation was first adopted adult prob
had been the rule, yet for many years its acceptance an
plication elsewhere lagged far behind that of juvenile

«5 bation. By 1917 only Wyoming had no provision for juv
probation. After 1900 probation developed rapidly
1915 and more slowly since 1915. Adult probation in
form was authorized by 33 States by 1915, 1 State was a
in 1919, 2 in 1923, and 1 in 1931, 1 in 1934, and 2 in 1937,

ing._12 States still without any type of adult probation l

,4?“le States which had the highest percentage of u

5 population developed probation first and it spread grad
to the more rural States. The number of probation o
in the United States increased from about 2,000 in 19
about 4,800 in 1931. The increase in the number of prob
officers has been greater in urban than in rural co
ties.” 88 By 1937 probation legislation in one fori
another existed in 36 States, the District of Columbia

85 Parsons, op. cit. supra note 7 6, at 695-696.

8“Penal Institutions, Probation and Parole (1931) 123, Report No. 9
National Commission on Law Observance and Enforcement.

87 Sutherland and Gehlke, Crime and Punishment, Recent Social
(1933), ch. XXII, pp. 1155—1156.

881d at 1156.

27

the Federal Government, The rate of progress which has
marked the adoption of such legislation is indicated in
table I.

TABLE I.—-Progress in adoption of adult probation statutes‘

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

. Year first Year first
Jurisdiction statute Jurisdiction statute
passed passed
Massachusetts ................. 1878 W' ' 1909
Missouri 1897 District of Columbia ........... 1910
Vermont 1898 Delaware ...................... 1911
Rhode Island .................. 1899 Illinois 1911
New Jersey .................... 1900 Arimna 1913
New York 1901 Georgia ’ 1913 A
California 1903 Mnntnnn 1913 -
Cnnnnotinnf 1903 Idaho 1915 _,...
,Micbigan ...................... 1903 Virginia 1918
Maine- - 1905 Washingfnn 1921
' mums 1907 Utah 1923
ndjnna 1907 Federal Government ........... 1925
Ohm 1908 West Virginia 1927 ,1
Colorado 1909 Oregon - 1931
Iowa 1909 T 1931
Minnesota 1909 Maryland 1931
Nebraska ............ ' .......... 1909 Kentucky ...................... 1934
North Dakota 1909 Arkansas 1937
Pennsylvania .................. 1909 North Carolina ................ 1937
New Hampshire 3 .............. 1938

 

 

 

 

l The dates given in this table have been selected from the Survey digests of the probation
leaislation in each jurisdiction. In some instances there are discrepancies between the dates
selected as marking’ the introduction of probation into a particular State and those selected
by other writers in the field. These differences are explained by the {act that it is sometimes
difl‘icult to decide when a particular statute is a probation law, due to the peculiarities of
phraseology and terms employed within the States themselves. In making the above selec-
tion of dates we have been guided by the principle that in this study we are concerned only
with adult probation and, therefore, havetin all cases selected statutes that have reference
to adult offenders.

1' Since the writing of this volume was completed prior to the passage of the New Hamp-
shire probation law, the probation system of that State is not considered in Volume II. A
detailed treatment of the New Hampshire probation act is contained in Volume I, A
Digest of Federal and State Laws on Release Procedures.

The Federal courts had no probation law until 1925. For
some 50 or 60 years United States courts exercised proba-
tionary powers Without specific direction in the acts of Con- r
gress. It would seem that during this period the Federal
court adapted its practice to that prevailing in the State
courts of the district in which it sat. Thus, in Ohio, the
method had been to impose sentence and then suspend its
operation, while in Massachusetts the practice was that of
“filing” the indictment after verdict but before sentence.89
When the Supreme Court decided that the Federal courts,
in the absence of permissive legislation by Congress, were
without power to suspend sentence, some 2,000 convicted

 

3' Grinnell, supra note 56, at 591.

‘ .

28

ofienders at large on unauthorized Federal suspensio
were pardoned by the President on the Court’s recomme
dation. From the date of Ea: part6 United States,” 19
until 1925, Federal courts were unable to suspend se
tences except temporarily. Despite many efforts, a law

the subject was not obtained until 1925. It is under t
law, with a few minor amendments that the present Fede
probation now operates.91

Contemporaneously with the extension of the probati
system into most of the States, there occurred a general
crease in the enactment of suspension of sentence la
One reason for this increase of legislation on the subject
undoubtedly the desire of law-making bodies to sanctio
practice which had long been followed or attempted to
followed by their courts but which had been found to
unwarranted in the higher courts, either on grounds of l
of common law authority or of unconstitutionality.
additional consideration may have influenced legislators
the passage of many such statutes. Vft was to be expec
that the Massachusetts probation system, having been rec
nized as a salutary new departure in the field of penol
would exert a wide influence. Many legislatures, awar
the worth of a probation system but timorous as yet
going all the way in adopting probation statutes, may 11
hoped that they could achieve the benefits of the Massac
setts system by half measures. Accordingly, statutes
passed in the belief that in authorizing courts to save
fendants from the disgrace of incarceration in certain
stances, some of the beneficial features of probation
being extended.

An unfortunate misunderstanding of the theory
practice of probation, this pious hope of the State
making bodies instituted a practice of releasing convi
persons without sufficient investigation as to their fitness
such treatment and without provision for any perio
supervision. In fairness to the lawmakers who ena
these statutes, it should be borne in mind that in man
stances they very probably entertained the hope and

”Eat: part6 United States, 242 U. S. 27 (1916).
“18 U. S. C. § 724 ct seq. (1934).

29

belief that their task was merely to remove certain restric-
tions under which the courts had labored and that in so
doing they were providing a framework upon which the
citizens and the courts of the State might work out, on their
own initiative, a volunteer probation system along the same
lines as the one which evolved in Massachusetts. That this
has not been the result in practice is unfortunately the case.

Many of the States which adopted suspension of sentence
statutes have later extended and amplified them into pro-
bation laws. However, at least 12 States listed in table II,
are still operating with only suspension of sentence statutes,
and in a few even these laws are of relatively recent date.92

TABLE II.—States having suspension of sentence statutes only

Alabama. Nevada.’ South Dakota.
Florida.1 New Mexico. - Texas.
Louisiana. Oklahoma ' Wyoming.
Mississippi. South Carolina.

1N0 statute, but common law suspension of imposition of sentence allowed.

1*In desertion and nonsupport cases only, but of doubtful constitutionality.
See State v. Moran, 43 Nev. 150, 182 Pac. 927 (1919).

8 Suspended sentence permitted only as to minors; family deserters may be
“paroled” by the Governor on recommendation of the trial judge.

A treatment of all the questions which have arisen in the
courts with regard to probation laws is not contemplated in
this chapter. However, it is interesting to note that only in a
very few instances has the constitutionality of these statutes
ever been questioned. In most of the cases where the pro-
bation laws have been attacked on constitutional! grounds
the courts have upheld the power of the legislature to enact
such statutes. In Belden v. Hugo, the court said:

In passing on the question it is important that we gain a
correct conception of that which the statute authorizes the
courts to do in the matter of stays of execution. The pro-
visions of the statutes, like those authorizing release from im-
prisonment on parole, merely prescribe conditions attaching to
the punishment authorized and inflicted. The General As-

”With the exception of Florida, the States listed in table II as having no
probation law have suspension of sentence statutes. (Florida courts possess
a common law power of suspending sentence.) However, in some of these
States even the suspension statutes are restricted within a narrow classifica-
tion of offenders. Nev. Comp. Laws (Hillyer, 1929) §§ 10128, 10519; Okla. Stat.
(Harlow, 1931) §§ 3148, 3149; Wyo. Rev. Stat. Ann. (Courtright, 1931) §§
33—1501, 32—806.

30

sembly defines the punishments which may be imposed and
may gather around those punishments such incidents or c
ditions as it may deem wise. * " “‘ So it is that ev
sentence to imprisonment for a term carries with it and
incorporated into it by necessary implication those provisi
whose operation may result in a parole or stay of execut
with a probation commitment, that result does not have
, source in an exercise of the pardoning power. It comes in
due course of the operation of the sentence under the provisi
of law which prescribe what it may be and its incidents.”
Reference has already been made to the Alabama g
eral probation law passed in 1931 which was declared
constitutional by the Alabama supreme court in 1935, as
invasion of the Governor’s exclusive power to grant 0
mutations and pardons. The court attempted to distingu
decisions in other States upholding such statutes 011
ground that other State constitutions do not vest the po
to parole in the Governor as is the case in Alabama.94
In the 40 years that have passed since probation syst
were first adopted outside the boundaries of New Engl‘
the growth has been rapid and often haphazard. In
course of those years the problems and the emphasis in
field have undergone an appreciable change. While, in
early years of this century, the battle was one for the ex
sion of the system and the acceptance of the idea, to
workers in probation are striving to build up and imp
organization and administration, to secure direction
standards for the service and to coordinate the work.
day two -thirds of our States have t"enacted probation leg'
tion in one form or another,b “more._than one-.hal
them have narrowly prescribed iutts application or curta
its administration by arbltrary 11m1tations not contempl-
by the founders of‘the system, Or by not allowing the
pointment Of a sufliment number of probation officers
both. Generally speaking, the States that have secured
most complete administration of probation, namely: M.
chusetts, New York, Connecticut, Vermont, Rhode Isl

 

”Belden V. Hugo, 88 Conn. 500, 507, 91 At]. 369, 371 (1914).
similar treatment of probation as a form of sentence see Bruce, The P0
Suspend a Criminal Sentence for an Indefinite Period or During Goo
havior (1922) 6 Minn. L. R. 363.

Nillontgomery v. State, 231 Ala. 1, 163 So. 365 (1935).

will; mamas-mm

 

tannin-arr 3 4‘" :v - ,u v: , .

”WW“ ‘ :‘ "£13,517?“

31

New Jersey, Michigan, Pennsylvania, and California, have
least restricted the courts in its use,” 95 .

The statutes permitting the use of probation vary in the
extreme in regard to the courts authorized to grant proba-
tion. As indicated in the accompanying table, 27 States
and the Federal Government permit all courts having juris-
diction of the offenses for which probation may be used to
place defendants on probation. Only three States restrict
the use of probation to courts of record. In the remaining
six States and the District of Columbia the courts author-
ized to grant probation fall neither in the broad classifica-
tion applicable to the majority of States nor within the
narrower grouping of courts of record. However, even in
these jurisdictions it may be stated that the courts possessing
the power have cognizance of the bulk of criminal offenses
for which probation may be granted.

Table III.—C'ourts authorized to use probation for adults

H

. ALL COURTS HAVING JURISDICTION OF THE OFFENSES FOR WHICH
PROBATION MAY BE USED

Arizona. Michigan. Rhode Island.
California. Missouri. Tennessee.
Connecticut. Montana. United States.
Georgia. Nebraska. Utah.

Idaho. New Jersey. Vermont.
Illinois. New York. Virginia.

Iowa. North Dakota. Washington.
Maine. Ohio. West Virginia.1
Maryland. Oregon.

Massachusetts. Pennsylvania.

1 Except justices of the peace, but probation in such cases may be granted
by the court to which an appeal would lie.

II. COURTS OF RECORD ONLY

Minnesota.’ North Carolina. Wisconsin.
'Also justices of the peace since 1937.

III. OTHER

Arkansas—Circuit courts, and municipal courts in misdemeanor cases.

Colorado—District courts, and county, juvenile, and justice courts
in the city and county of Denver.

Delaware—Court of General Sessions, Wilmington Municipal Court,
Newcastle County Court of Common Pleas.

9“Chute, The Ertensiou of Probation in the Criminal Courts (1928) 130
Ann. Am. Acad. 136, at 138.

32

District of Columbia—Supreme court and police court of the Distri

Indiana—Circuit courts, criminal courts, municipal courts in fir
and second-class cities.

Kansas—District courts, common pleas courts, police courts in fir
and second-class cities, and city courts in first-class cities of mo
than 117,000 population.

Kentucky—Circuit courts.

There has been a marked tendency to extend the pow
of granting probation to an increasingly large number
criminal courts. The legislative history of practically
States which at the outset authorized the use of probati
in only the higher criminal courts of the State, or courts
particular metropolitan areas shows that probation grad
ally has been extended to the inferior courts or to courts
general criminal jurisdiction throughout the State. Tl
growth reflects the attitude of modern criminal-law admi
istrators, namely that carefully supervised treatment outsi
of penal institutions is often preferable to incarceratio
This is especially true in cases of occasional and pet
offenders.

‘ \/ The feasibility of probation as a substitute for incarce
A tion in the cases of young, first, occasional, ,or petty
fenders is almost universally recognized. Wet only

States have laws broad enough to extend this power to t

inferior courts which handle the greatest volume of pet

criminal business. Regrettably, there are no complete

reliable statistics as to the number of criminal prosecutio
for petty offenses in the several States. However, from su
statistics as were then available, the National Commissi

on Law Observance and Enforcement in 1931 concluded t

“the average proportion of such prosecutions to prosecutio

within the jurisdiction of the superior courts is about 7

3.” Moreover, if account is taken of the cases before

perior courts which are appeals from convictions bef

magistrates, the proportion is about nine to two.96

Although the cases tried before minor courts “constit
the most important avenue of contact between the judic

m‘Criminal Procedure (1931) 8, 0, Report No. 8 of the National Commiss
on Law Observance and Enforcement.

 

 

 

33

system and the average citizen, * * * less is known of
the working of the courts at this level than at any other.
Much study of criminal justice has been drawn by other
important agencies of justice, and a disproportionate share
of notice has been given to the felony as contrasted with the
misdemeanor—to the hardened criminal, undoubtedly a
better item of news than the misdemeanant, but not so
hopeful a subject for reform.” 97 '

It would seem that one of the most fruitful fields for the
future development of probation lies in the minor courts.
Doubtless failure to extend probation in this direction is to

be explained on various grounds: lack of facilit' in-
vestigate and supervise offenders in these courts; WEE—315.34

an, with relatively few cases when
considered individually; and the ignorance coupled with
indifference, on the part of magistrates, of scientific treat-
mggtpicfllmials. Moreover, when it is recalled that pro-
bation, even in jurisdictions where it hasbeen most highly
developed, is largely dependent on the court, both for initia-
tion and subsequent effectiveness, the nonexistence of this
device in the inferior courts can be better understood. Pro-
bation officers are generally attached to a single court. It
follows that a court with relatively few cases will not seek
the services of a probation officer. Then too, the justices
of the peace and other inferior courts are subject to a rapid
turnover, resulting in a condition which is scarcely con-
ducive to any sustained effort at probation. Moreover, the
financial support for probation has generally devolved upon
- the locality, and this circumstance has been a large factor in
curtailing the extension of probation into the minor courts.

 

 

 

 

EXTENT OF PROBATION

How prevalent is the use of probation and suspension of
sentence in the treatment of adult offenders? Specifically,
of all persons appearing for disposition before the criminal
courts in the United States, how many are granted probation
or released under suspended sentence as compared to other

9" Marshall and Yntema, Foreword in Douglas, The Justice of the Peace
Courts of Hamilton County, Ohio (1932) v.

\/

34

types of disposition? To these fundamental questions ac
rate answers should be available for all sections of the co
try before any attempt is made to describe or evaluate
organization, facilities, and techniques of the machin
which administers probation.

Unfortunately no inclusive information is available as
the number of persons on probation in the United States
any given time or the number so released during a ye
Moreover, the percentage of offenders convicted in the v
ous State courts who are placed on probation or released
suspended sentence is not known for all States. Altho
distinct advances have been made in the last 5 years in
collection of criminal statistics on a national scale, the f
still remains that “Statistics concerning probation, like
tistics concerning nearly every other aspect of work
offenders, are distressingly inadequate in the Uni
States.” 98

The two principal sources of information regarding
extent of probation are the courts vested with power to gr
probation and the or a ' ' ns char ' *' , su e
sion of persons so released, However, machinery for coll
ing this information from either source in a uniform
comprehensive manner for the country as a whole has
been created.

- Very few States have established central agencies for
lecting and publishing judicial criminal statistics. Pr
tion departments in most States are not obliged to rel
periodic and standardized reports which are absolutely ne
sary if accuracy and uniformity are to be achieved in
compilation of basic data. The inevitable result of lac
coordination among the numerous and essentially indep
ent local agencies administering adult probation within
States in the chaotic condition of statistical information

the number of persons supervised by these departments.

A comparable situation exists with regard to informa
available from courts authorized to grant probation or rel
defendants on suspended sentence. Statistics revealing

93 Penal Institutions, Probation and Parole (1931) 193. Report No. 9 0
National Commission on Law Observance and Enforcement.

35

disposition of offenders appearing before all courts with pro-
bation powers are nonexistent for most States. A few States
have established central statistical agencies for the collec-
tion of criminal statistics but in most cases the material col-
lected consists mainly of data pertaining to criminal identi-
fication. Some States, through judicial councils and other
agencies, obtain data from the courts of general criminal
jurisdiction; but even in these States little is known of the
workings of the minor courts, which are frequently vested
with probation powers.

The most comprehensive collection of judicial criminal
statistics is the information gathered by the Bureau of the
Census. Since 1932, under authority granted by an act of
Congress, the Bureau has collected statistics covering the
disposition of criminal cases in the- State courts of general
criminal jurisdiction. The Bureau obtains the data through
the voluntary cooperation of court clerks. These officials
furnish summary information as to the number of defendants
disposed of during the year according to offense charged and
disposition, as well as the number sentenced according to
offense and sentence. Although information obtained by the
Bureau of the Census is the best available from a quantitative
standpoint, it is far from complete. For 1936, the statistics
cover only 29 States and the District of Columbia. Moreover,
since only the courts of general criminal jurisdiction re-
ported, the relative use of probation or suspended sentence
by the minor courts is not shown.

The following table reveals the type of treatment accorded
defendants found guilty of major offenses ”9 and sentenced 10°

”The major offenses include the following 15 offense groups: Murder, man-
slaughter, robbery, aggravated assault, burglary, larceny (except auto theft),
auto ti‘eft. embezzlement and fraud. stolen property, forgery, rape, prostitu-
tion and commercialized vice, other sex offenses, violating drug laws, and
carrying weapons.

It should be noted that each offense group may include a number of crimes
as defined in the statutes of a particular State. The classification of offenses
conforms to the standard classification of criminal offenses adopted in 1932
for use in the Bureau of the Census and in the Federal Bureau of Investiga-
tion. See Judicial Criminal Statistics. 1935 (U. S. Department of Commerce,
1937) 7 ct seq. for a more detailed discussion of the offense classifications.

10° Cases where imposition of sentence was suspended and probation granted
are included for the purposes of these statistics.

it

36

by the courts of general criminal jurisdiction in the 30 juris
dictions that furnished information to the Bureau of th
Census in 1936. ‘From this table it appears that probation o
suspended sentence is granted to approximately one-third o
the major offenders finally disposed of in these States.

TABLE IV.—Defendants found guilty and sentenced, by sentence 0
treatment, in 30 States: 1936

30 States combined

Sentence or treatment
Number Percent

 

 

 

 

 

 

 

Defendants sentenced 55, 431 100.
Prisons and reformatories- - - l 20, 094 ' 36
Probation or suspended sentence 17, 223 31
Local jails 14, 196 25
Fines- _ 3, 195 5
Other- 723 1

 

 

 

1 Includes 63 death sentences.

However, the States show wide variation in the use
probation or suspended sentence. This fact is brought 0
by table V. The variation ranges from 11.6 percent '
North Dakota to 65.8 percent in Rhode Island.”1 The pe
centage distribution for any particular State is not nec
sarily representative of the frequency of the use of prob
tion throughout the State. It must be remembered th
the statistics cover only courts of general criminal j'urisdi
tion and are limited to the major offense groups. If min
courts and all other offenders were included in the figur
the percentages might be altered. Moreover, the statisti
lump probation and suspended sentence together, with t
result that it is not possible to determine the number
offenders who are under the supervision of probati

oflicers.1°2

 

101 These two tables appear as tables 22 and 24., respectively, in Judie
Criminal Statistics. 1936 (U. S. Department of Commerce. 1938).

102 As reported to the Bureau of the Census, the data differentiated betw
probation and suspended sentence and whether either type of disposition
with or without supervision. But information was not given as to whet
or not the defendant was actually supervised, and hence it is invalid
reproduce the differentiation here.

 

. .. . ‘._..::..::: .151
.a,/l.$...uV-4y"~n*“' ' "

 

. - TAT}... .5..:i.v T ‘7 ‘4 1
.. mini“... ...-.c.=.;... seams-w ..

37

TABLE V.-—Defendants placed on. probation or given I suspended
sentence, by States: 1936

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Placed on probation or
given suspended sen-
Defendants “1106
State sentenced
Number Percent
30 £111qu 55, 431 17, 223 31. 1
Rhode Wand 538 354 65. 8
‘ L ‘N 2, 313 l, 021 44. 1
New Jersey 4, 352 1, 874 43. 1
New Hampshire 344 147 42. 7
Maine.. 320 129 40.3 ,
'Wchimm 2. 189 835 38. 1‘
Wisconsin 2, 330 855 36. 7
Ohio 4, 040 1, 433 35. 5
California- 5, 814 2, 010 34. 6
M inflow“: 1, 664 573 34. 4 _
Arivnna 636 192 30. 2
Oregon 882 266 30. 2
Pennsylvania - 15, 340 4, 362 28. 4-
Indiana 2, 898 821 28. 3
New Mexico 547 150 27. 4
Connecticut 783 197 25. 2
Idaho- 372 90 24. 2
Iowa_ 983 229 23. 3
Colorado 965 216 22. 4
District of Columbia- 1, 320 285 21.6
South Dakota" 441 95 21. 5
Vermont- 281 59 21. 0
Nebraska 907 189 20. 8,.
Utah- 190 36 18.9
Illinois- 1, 577 287 18. 2
VVashingtnn 1. 170 202 17. 3
Montana 387 58 15. 0
Kansas 1, 371 198 14. 4
Wyoming- 202 28 13. 9
North Dakota 275 32 11. 6

 

 

 

 

In contrast to the incomplete state of statistics revealing
the extent of probation in the States, the Federal Bureau
of Prisons collects complete information on the relative use
of probation in the Federal district courts. For the fiscal
year 1936—37, the Federal courts in the continental United-
States disposed of a total of 35,690 defendants by commit-
ment or probation. Of these, 12,489, or 35.0 percent, were
placed on probation.”3

The use of probation in the Federal courts has gradually
increased in recent years. Thus the percentage which pro-
bationers formed of the total committed to imprisonment
plus those placed on probation was 19.3 percent in 1930—31,

103 Federal Ofienders: 1936-37 (U. S. Department of Justice, 1938) 165 et
seq. ,

38

23.4 percent in 1931—32, 28.7 percent in 1932—33, 30.2 perce1
in 1933—34, 27.1 percent in 1934—35, and 34.4 percent i
1935-36.

The relative use of probation in the Federal judicial di
tricts varies in the extreme. “In Kansas, 86.3 percent
the total were placed on probation. In three other district
namely, middle Pennsylvania, western Kentucky, and Mass
chusetts, over 60 percent were placed on probation. At tl
other extreme was western Texas, with only 5.8 perce
placed on probation. Eleven other districts had less tha
20 percent placed on probation.” 1"" The extent to whi
probation is used in any given judicial district must
viewed in light of the IOCal situation, the policy of the cour
and the number of oflicers available for the supervision
‘ probationers.

( On the average, then, it seems that about one-third of t.
'ofienders found guilty and sentenced by the State and Fe
eral courts of general jurisdiction are placed on probati
or given suspended sentences" The comparative use of eith
device varies from State to State and from one judicial di
trict to another. Although progress has been made in t
collection of judicial criminal statistics sinc the VVicke
sham Commission surveyed the field in 1931, the data ava
able for the country as a whole are still incomplete. T
development of more uniform, accurate, and inclusive prob

' tion statistics is a primary need.

 

10‘ Id. at 165.

CHAPTER II
ORGANIZATION OF PROBATION DEPARTMENTS

INTRODUCTION

It is the purpose of this chapter to describe the facilities
and general characteristics of the agencies charged with
_ the important duty of aiding the courts in the selection,
su ,ervision, and rehabilitation 'of probationers.

~The administration of adult probation is still primarily a
localresponsibility. Although a number of States have es-
tablished State-wide systems that permit centralized financ-
ing, control, and supervision of probation service in the
courts of the State, the extent of State participation is far
from general. ‘

Aside from the States which have assumed definite con-

trol of probation, there exists in other States celgrahagencies
which exercise various degrees of supervision over probation
work. Generally, an unpaid commission, the department of
public welfare, or some other State agency is vested with
limited powers over the many and varied probation organi-
zations in the State.
V In California, Ohio, Pennsylvania, and Virginia the State
public welfare departments have power to investigate proba-
tion work and make general recommendations, require re-
ports from officers and in some cases prescribe the type of
record forms to be used. In Ohio the department has power
to set the qualifications for probation officers, and the Vir-
ginia department may recommend persons for appointment
as probation oflicers after examination under rules estab-
lished by the department.

The Connecticut Prison Association, which is primarily a
private organization, is authorized by law to require reports
from officers and make recommendations to the Governor.
In Oregon an unpaid commission is charged with the duty

73115—39—v0L. 11—4 (39)

4O .

of securing the effective application of the probation syste
but no funds are available.

The Indiana probation department is empowered to con
duct examinations for candidates seeking appointment
probation oflicers, and only those whom it certifies are eli
gible for appointment. The department may also prescrib
record forms ‘and establish general rules for procedure whic
have the effect of law.

In Massachusetts the board of probation may require r
ports from officers and trial justices and it may also subm'
recommendations in regard to the conduct of probation wor
in the State. Under the power to require reports, the boar
has established a central record bureau which functions
a clearing house for criminal court records.

The probation division of the New York Department

3 Correction has general supervision over probation in t
State. It may investigate local bureaus, require report
establish general rules for probation procedure, and reco
mend the removal of probation oflicers.

Under the new system being evolved in Michigan, the d
partment of correction, through the probation bureau, h
the duty of appointing and supervising probation oflicers
all adult courts except in Detroit. The new law marks
important departure from many others providing for
measure of State supervision, in that grants-in-aid may
extended to counties unable to maintain a level of probati
service equal to the standards set by the bureau.

It is evident that the powers of these State superviso

f agencies, with a few exceptions, are too limited to pern
active State participation in probation work. Few have a1
authority in the selection of personnel. With the excepti
of Michigan, State funds cannot be used to develop pro
tionin localities unable to support adequate facilities.

Without a centralized authority responsible for the
velopment of probation in the State, many local and esse
tially autonomous organizations have emerged. In the sa
State there may be two or three types of independe
agencies, functioning with little or no relation to each otl
or to the State. The character of service rendered by t
departments varies in the extreme, even within the 8:11

 

41

State. These differences in development from State to
State must be taken into consideration in attempting any
analysis of the services rendered by the various probation
organizations. '

While it is difficult to find a basis for classifying proba-
tion agencies into mutually exclusive groups, the method
of classification here used is based primarily upon the gov-
ernmental unit served. The organizations studied have been
grouped into the following five classes: (1) Centralized
State probation departments; (2) centralized county or-
ganizations; (3) metropolitan and large urban agencies; (4)
smaller urban and rural departments; and (5) Federal units.

Admittedly, this classification is somewhat arbitrary and 7.
artificial. In some instances, two departments in different
groups may in fact serve similar governmental units. Thus
many rural departments have county-Wide jurisdiction, and
a metropolitan unit may embrace a county. On the whole,
however, the groups represent. distinct categories and have
come to be generally accepted as typifying the kinds of pro-
bation departments that exist in the United States.

Since it was impossible to canvass every probation depart-
ment in the country, a representative number of each type
was selected for detailed study. Four centralized State
systems are included: Rhode Island, Vermont, Washington,
and Wisconsin. Two other States, Montana and North Da-
kota, have statutory provisions for State-wide control of
probation but do not provide such service to an extent that
would permit analysis on a functional basis. Recent laws.
in other States, such as Kentucky, North Carolina, and Utah,
provide for centralized State probation administration, but
the organizations are still in the formative period and for
that reason are not discussed in detail.

The centralized county organizations are represented by
14 departments—2 in Minnesota, 4 in New Jersey, 5 in New
York, 1 in Ohio, and 2 in Pennsylvania.

Twelve metropolitan departments have been included in
the metropolitan and large urban group. These are located
in the following cities: Chicago, Baltimore, Boston, Detroit,
New York, Cleveland, Milwaukee, and Philadelphia. In
some instances, more than 1 unit operates in the same metro-

42

politan area, and for that reason the 8 cities named ar
represented by 12 units.

Approximately 50 departments in smaller cities, towns
and‘rural areas throughout the country were selected as rep
resentative of the smaller urban and rural organizations
Most of these units were very small and for that reason i
seemed advisable to describe their facilities and characteris
tics in general terms. Detailed functional examination, suc
as that given to the other types, obviously was not possible
since size of staff and volume of work are decisive factors i
determining the degree of functional development. How
ever, a high quality of service is rendered by some of th
small, one-man organizations. _

The Federal probation departments in the following 1
judicial districts were chosen as representing a fair cross
section of the Federal probation service: Connecticut; Geor
gia, northern and southern; Illinois, northern; Louisian
eastern; Massachusetts; Michigan, eastern; Missouri, easter
and western; New York, eastern, western, and southern
Pennsylvania, eastern and western; South Carolina, western
Texas, northern and western; Wisconsin, western.

The information upon which the analyses in the followin
/ sections are based was obtained by means of interviews wit
probation department officials and personal observation an
inspection of departmental facilities. Representatives of th
Survey visited the various departments during the fir
quarter of 1937 and filled out detailed schedules designed t
elicit information as to administrative organization an
general facilities; selection, qualifications, and training 0
personnel; 1 investigation and selection practices; metho
of supervision; and procedures in keeping records.

The material in each section devoted to a particular ty
of probation organization is essentially descriptive in natur
No attempt is made in these sections to criticize or evalua
practices. Comparisons and criticisms of the facilities an
services rendered by the various types of probation agei
cies are reserved for the concluding section of the chapter.

1In the succeeding chapter the methods of selection, qualifications, 8.
training of personnel are discussed.

43
CENTRALIZED STATE PROBATION ORGANIZATIONS

Administrative organization and general facilities.—The
administrative organization of the four State probation units
here analyzed does not conform to a consistent- or uniform
pattern; that is, although each unit has State-wide jurisdic- /
film 2 and is financed, supervised, and controlled by the State,
the form of organization and type of service rendered vary.
These variations will be pointed out in more detail as the
analysis of functions progresses.

Rhode Island has an administrative staff of two supervis-
ing and directing the work of 28 full-time oflicers engaged in
adult probation service. There is also one Officer giving part-
time attention to probation work, and a clerical staff consist-
ing of nine persons.

In Vermont, although the commissioner of the depart-
ment of public welfare Is the nominal head of the proba—
tion system, actually the administrative work is handled
by one officer who also performs other duties in the welfare
department not directly connected with probation. The field
work is conducted by a staff of 18 part-time workers, paid
on a per diem basis. The clerical staff of five devotes a
major portion of its time to work of a nonprobation char-
acter in the public welfare department.

The board of prison terms and paroles in the State of
Washington is Officially charged with the administrative
oversight of probation as well as parole work. One super-
visory Official and four field officers are actively engaged in
the administration of the combined parole and probation
system. These officers are assigned on a geographical basis
and are assisted by approximately 15 volunteers and 50 law
enforcement officials who serve in an ea: ofleio capacity.
There are two full-time clerical assistants.

The probation department of the board of control in
Wisconsin has an administrative staff of 4, a field force of

2 officers and 8 full-time and 4 part-time clerks. All super-
visory oflicers in Wisconsin are on a full-time basis and care
for both probationers and parolees.

aIn Wisconsin, Milwaukee County has a separate probation department
hich is classified with the metropolitan organizations.

(I.

i
:
"R

44:

These centralized State organizations, with the exceptio
of Washington, provide for the supervision of therespectiv
sexes by members of the. same sex. With the exception
Vermont these units have adequate office facilities as we
as facilities for private interviewing. Again with the e
ception of Vermont they make it possible for probatione
to report during evening hours as well as during regul
office hours. However, only Washington and VVisconsi
have regular arrangements for conducting interviews an
receiving reports in places other than the central office. A
of the units provide their officers with transportation on
mileage baisis. Funds for this purpose are considered ad
quate except in Vermont Where the budgetary allotmen
for probation service are very limited, and in this State
sometimes becomes necessary for the supervisory personn
to curtail drastically the amount of field supervision.

None of the four units have specialized personnel such
doctors, psychiatrists, or psychologists attached as perm
nent members of their staffs, either on a full-time or pal
time basis. Rhode Island and Wisconsin, however, ha
access to and use such services and outside facilities eith
on a fee or gratuity basis. Vermont and Washington,
the other hand, have such services available to a very limit
extent.

Specialized personnel engaged exclusively in vocation
guidance or industrial placement are not retained by a1
of these units. Whatever efforts are made in either of th
directions receive their impetus from the interest of 0c
sional officers. Rhode Island is the only State of th
under consideration which maintains a research unit. Tl
unit, however, is not engaged solely in probation resear
but divides its attention between parole and probation.

These departments are showing an increased awaren
in the field of interstate cooperation in the supervision
both probationers and parolees, as is evidenced by the f.
that Rhode Island and Wisconsin have established @
cal,relations with departments Ninother States. Althou

"this problem is discussedatigreaterilengwtlfin the chapter

supervision, it may be pointed out here that the centraliz
State probation systems offer the most fruitful field for t
establishment of regular exchange relationships.

45

Investigation and selection practices.—-—-In the centralizedl

State organizations th__e___f~ifleld_personnel does both investiga-a. /"
tive and superv1sory Work. This fact 15 in contrast With the
pract1ce in some of the metropolitan and large urban sys-
tems Which have specialized personnel for each function.
Of course, this difference in practice is eXplicable When it is
recalled that the latter organizations serve a small area and
a concentrated probation population, thus permitting a
greater specialization of duties.

It is significant, however, that these State-Wide systems '
have not, on the Whole, as yet developed regular and in- 1/! '
tensive investigation services. RhOde Island V provides for
routine preprobation investigation prior to sentence of all
cases in the superior courts, but district court cases are in-
vestigated only in the discretion of‘the court and the pro-
bation personnel. In Vermont only about 5 percent of all
cases are investigated, and most of these inquiries come after
disposition. The sheriffs and prosecutors are relied upon
in Washington to supply facts concerning the defendant’s
criminal record and general reputation; no thoroughgoing
preprobation inquiry is conducted. Manifestly, it is im-
possible for the small staff to perform this service for the
many county superior courts. In Wisconsin the personnel
of the probation department makes preprobation investiga-
ions in about 10 percent of all cases, at the request of the
ourt or prosecution. Assignment of personnel for investi-

ations, Where they are made, is on a geographical or district
asis in these units.

The relative intensity of preprobationinvestigation varies

cm a perfunctory level in Vermont and Washington to
n_ mtermediate or, in some cases, an intensive level 1n Rhode
sland and Wisconsin.

The investigation reports are arranged in topical form in

ermont and Wisconsin, a ghronological basis 1n Washing-
on, and 1n combined form in Rhode Island. An effort is

ade to include all pertinent facts in Rhode Island and
isconsin, While the reports in the other two States contain
ittle more than a brief summary of the elementary facts in
he defendant’s history. The reports in the two former
tates contain some analysis of causal factors, the problems

46

of the particular case and a definite recommendation f
disposition.

Only in Rhode Island is it a routine procedure for t
investigating officer to have a predisposition conferen
with the judge. Both the Rhode Island and Wisconsin d
partments state that the judiciary follows their reco
mendations in the great majority of cases.

Supervision practices—Only Washington and Wiscons
make analysis of the preprobation investigation findings
a preliminary step to actual supervision. In addition, t
Washington department classifies cases into two group
those that need close supervision and those that do 11
Rhode Island attempts a general classification for degr
of supervision on the basis of the regular monthly revi
of cases by the case supervisor.

In Rhode Island and Wisconsin personal reports, gra
ated in frequency from weekly to monthly as the probati
period continues, are required. Washington requires p
sonal reports, either to the probation ofiicer, sponsor,
ea: oflicz'o volunteer supervisor, each month, if possib
However, this unit does accept written reports in lieu
personal reports in some instances. Vermont requires
personal reporting, but does require written monthly
ports. Written reports are asked for each month in VS
consin in addition to personal reports already mention
Rhode Island accepts written reports only in cases wh
the probationer has been granted permission to leave
jurisdiction.

All of the units rely on home visiting, but with vary'
frequency, as an essential part of the supervision progr
In Rhode Island such visits are made at least each mo
and in Vermont every 3 months; in Washington and
cousin the frequency depends on the needs of the case,
case load, and personal inclinations of the oflicer.

Community visits are less generally accepted as part
the supervision program; they are not required in Rh
Island or Vermont, are made semiannually in Washin
and at irregular intervals in Wisconsin.

As a matter of policy, none of the units under consid
tion deems it advisable to visit or communicate with

 

 

47

probationers’ employers, lest employment be jeopardized.
This policy is sometimes disregarded, especially in those
cases in which the probation department secured the employ-
ment for the probationer.

The general practice is to explain the terms of probation
to the offender and.require him to sign a statement embody-
ing those terms. Modification of the terms and conditions
is sometimes resorted to following release, but only in Rhode
Island does this seem to approach a regular practice. Such
action may be taken by the probation department without
formal court order in Vermont, and in Wisconsin in those
cases not involving money payments. It is a practice to
extend the probation period beyond that originally allotted
in Rhode Island and Wisconsin, but such action requires
court approval. -

It is not the policy of the Rhode Island department to
recommend discharge prior to the termination of the pro-
bation period originally allotted. Early discharge is an in-
frequent practice in Vermont and Washington. In Wis-
consin pretermination discharge is sometimes granted, but
only after a minimum of three years has been spent on
probation.

The general practice in these units is to notify probation-
ers in writing of their discharge. Only in Vermont, and
there only in occasional, cases, does the probationer appear
before the court to receive his discharge. However, in Wash-
ington the governor must give his approval before a formal
discharge can be granted, since the law provides that super-
vision continues during the period allotted or until termi-
nated by the governor.

Probation is customarily revoked for admission of guilt i
or conviction of a new offense; on the other hand, revoca-
tion for breach of conditions occurs only after warning in
three States, while in Vermont the policy seems to be to re-
voke without an initial warning.

Records and reporta—Of these four centralized State pro-
bation units, all except Vermont maintain central file rooms
for all records. Each unit has designated personnel solely
responsible for the filing and care of records.

48

Three units follow the practice of routinely having a
records typewritten, but only two, Washington and Rho
Island, have this done on paper of standard size and shap
Exclusive of reference—card indices, all the units file t
record material on cases in individual case file jacket
In filing material, the general practice is to keep all inform
tion on the individual case in one file jacket, which in tu
is filed with the active on inactive cases, depending on t
status of the particular case.

Each one keeps a reference-card index, but only in 0
Washington, does this cover all cases, while in the 0th
three these indices cover only cases supervised. The indie
are not cross referenced for family relationships.

,2 In general, the chronological method of recording data
g’employed, although in Vermont the practice is to ma
periodic summarization of the status of the case. With t
exception of Wisconsin a card index file which shows in bri
form the dates and nature of supervision contacts, is mai
tained for the active cases. This serves as a ready referen
and obviates the necessity, in many cases, of searching t
case file jacket to verify the status of the case at any giv
time.

5The contents of the records of these units, in general, i
dicate that an attempt is made to build and maintain recor
during the beginning of supervision which will be availa
later for use as “tools” in treatment. However, the pract'
is not continued throughout the probation period. Tl
two units, \Vashington and Rhode Island, routinely record
initial plan for treatment, while Wisconsin does so for 01
a portion of its cases. But only one unit, Washingt
periodically makes analyses of developments and evaluati
of services rendered and objectives attained. In essen
the records remain primarily as evidence of the manner
which time was spent in supervision and an accounting of t
activities of the probation ofiicer. Except for Vermont t-h
units indicate the sources of case history information,
only in \Vashington is any record kept of the social agenc
that make reference to or use of the department’s inforn
tion.

49

All of these organizations publish reports, primarily of
a statistical nature. The frequency of issuance varies in the
extreme; in Washington, a monthly report is made, in Rhode
Island, once a year, and in Vermont and Wisconsin, bien-
nially. There is no uniformity in the manner in which
records are kept and some reports contain information which
is not to be found in others. Moreover, there is no simi-
larity in definition of terms. Hence, it is virtually impos-
sible to make any valid comparisons, on the basis of the

statistics furnished. Uniform procedures, recording and;’
presentation of data would go a long way in facilitating“
interpretation and analysis of the probation service ren-i

dered. However, these centralized State units are not alone
in this stage of undeveloped statistics, although it would
seem that they have the best opportunity for establishing
uniform practices in this respect.

CENTRALIZED COUNTY ORGANIZATIONS

Administrative. organization and general facilities.—Pro-
bation systems of the centralized county type customarily
pteridsiheentire probation service, for the county in which
they are located. A few departments have established sep-
arate units for the care of juvenile delinquents but as a
rule in the centralized county organizations juveniles and
adults, misdemeanants and felons are all under the jurisdic-
tion of only one department.

Fairly complete data are available for 14 of these units,8
and, in addition, information of a more limited character has
been secured for about 50 other centralized county organ1za-
tions functioning in 13 States} These 50 units, on the
whole, are less fully developed from a functional standpoint,
although some departments in this group have developed to

 

8Minnesota: Hennepin County, probation department; Ramsey County
court. New Jersey: Common pleas court, Atlantic County; Union County
court; common pleas court, Hudson County; common pleas court, Essex
County. New York: Erie County and supreme court; Niagara County and
supreme court; Monroe County court; department of probation, Westchester
County; Onondaga County court. Ohio: Common pleas court, Cincinnati.
Pennsylvania; Quarter sessions court, Erie County; quarter sessions c0urt,
Allegheny County.

4The States represented are Arizona, California, Colorado, Georgia, Illi-
nois, Indiana, Kansas, Maine, Michigan, Nebraska, New York, Pennsylvania,
and West Virginia.

50

a point where they can be favorably compared with any
organization included in the first group. However, since the
data at hand is more complete for units in the group of 14,
this analysis will be confined almost entirely to a description
of their functions.

In general, a uniform pattern of administration is ob-
servable in these units. In all, full-time administrative ofli-
" cials are employed. A director or chief, sometimes assisted
by other officers who perform specialized services, is in active
charge of the entire probation program. However, as to the
policies and procedures involved in administration, uniform-
ity is not observable. Thus units in adjacent counties will
reveal striking differences in the services rendered, differ-
ences which are often attributable to local peculiarities.
Moreover, in units situated in industrial and more densely
populated areas an increasing degree of development is
seen.

The 14 units employed a total of 23 male and 6 female
administrative oflicials, a fact which is indicative of a
greater tendency toward equality of opportunity for the
sexes than is evidenced in the Federal or centralized State
organizations. The units had a total of 146 field personnel,
including 37 female probation officers, thus in most instances
permitting supervision of female probationers by officers
of the same sex. Altogether, 74 full-time and 8 part-time
clerical workers were employed, with the result that in these
14 units office records are more complete and better kept
than in the less fully developed units where the officers are
without clerical assistance. In many of the 50 of the less
fully developed units, office records are negligible.

With the exception of the unit in Allegheny County, Pa.,
the 14 units have office facilities which permit interviews
to be conducted in private. Regular evening office hours are
kept in most of these departments, but in the majority such
evening office hours are limited to only one night in the
week. Six 5 utilize other public buildings in addition to
their own offices as reporting places for probationers. All
the departments have adequate funds to provide necessary

5 Hudson, Union, and Essex Counties in New Jersey and Niagara and West-
Chester Counties in New York.

 

Wyn. "mutfl-ww. ~ n w v

51

transportation for officers, eight furnishing travel expenses
on a mileage basis and six furnishing fare for public convey-
ances. In six of the units automobiles owned by the depart-
ment are available to oflicers for field trips.6 Since the large
number of partially developed units have less funds and
fewer facilities for transportation, less intensive field super-
vision is possible.

None of these units maintains doctors, psychologists, or
psychiatrists either on a full- or a part-time basis. How-
ever, the units divide about equally in utilizing such services,
either on a fee basis or gratuitously. Specialized services
in the fields of industrial placement, vocational guidance, and
research are not provided except in Essex County, N. J .,
and in the common pleas court of Cincinnati, Ohio. In the
latter unit, one member of the staff devotes part of his time
to employment and vocational guidance problems.

All of the 14 well-developed units maintain reciprocal re-
lations with other departments in the State as well as with
organizations in other States. These relations embrace both
the investigative and supervisory functions. In the less
fully developed units there seems to be no general policy
regarding relations with other departments.

Investigation and selection practices.—Although the 14
centralized county probation organizations show a tendency
toward specialized division of field personnel for investiga-
tive and supervisory work, the majority charges all officers
with the performance of both functions. One unit, Henne-
pin County, has a definite division of its staff assigned to
each phase, while five have a few officers who devote their
time exclusively to either investigation or supervision. In
the large number of partially developed systems, the proba-
tion staffs are too small to permit division of functions.

Six departments 7 conduct preprobation investigations as

‘ a matter of routine in all cases coming before the court for

disposition; seven 3 do so only for cases where it is thought

°New Jersey: Hudson, Union, and Essex Counties; New York: Niagara and
Westchester Counties; Pennsylvania: Allegheny County.

“'Hudson and Essex Counties, N. J.; Erie, Niagara, Monroe, and West-
chester Counties, N. Y. (felonies only, as required by law).

.Atlantic and Union Counties, N. J.; Onondaga County, N. Y.; Hennepln
and Ramsey Counties, Minn; Allegheny County, Pa.; Cincinnati, Ohio.

52

that probation will be granted; and in one unit, Erie Count
Pa., investigations are made only upon the order of t
court. Aside from these 14 departments, only a few of t
other centralized county organizations conduct preprobati
investigations. In some of these all felony cases are inve
tigated; in others only those cases considered for probati
are given this attention. In the less fully developed grou
the investigations, at best, are superficial and perfuncto
and the results cannot be classified as thorough case-wo
diagnoses.

When cases are assigned for investigation in the majori
of the 14 departments, assignments are so distributed as
equalize the work of the officers. In a few units, cases a
assigned primarily upon the basis of the type of offender.
;.' Generally, a period of 3 days to 2 weeks is allowed f
/‘the completion of preprobation investigations. Howev

no hard and fast rules seem to apply, and there is eve
indication that, on the whole, these 14 units allow am
time for the gathering of preprobation information.

A majority of the 14 units studied conduct relatively i
tensive investigations designed to bring to light full inf
m‘ation “for the court’s guidance. About half of these C
partments submit investigation reports on a topical ba
while the others use a combined topical and chronologi
arrangement. Nearly all the units submit detailed repo
of findings, together with an analysis of problems a
causal factors in the behavior of the defendant. Howev
only a few make tentative prognoses or definite recommenc
tions for disposition. Apparently, the departments feel tl
when full information is supplied to the courts, the jud
themselves will be able to evaluate the rehabilitative pos
bilities of defendants and, in the light of all the facts, m‘
an intelligent disposition of each case.

Investigations, when conducted at all, in the less fully
veloped organizations, are perfunctory. Reports are g
erally oral and contain little more than a brief summary
the elementary facts in the defendant’s history, with ma
emphasis upon the circumstances of the present offense.

The well developed organizations do not ordinarily
corporate in their investigation reports a formal or defin

53

recommendation as to disposition but in nearly all of them
it is a routine practice for the investigative officer to hold a
predisposition conference with the judge. Presumably,
some suggestion as to disposition is made at these confer-
ences because all of the 14 departments stated that the j udici-
ary follows the departments’ recommendations either
“usually” or in the great majority of cases.

Supervision practices.—Practically all of the 14 units
make a practice of analyzing the preprobation investigation
findings as the primary step in supervision. Five depart-i

ments 9 classify cases for degree or type of supervision re-
quired.

These organizations uniformly require personal reporting
by the probationer, generally on a weekly basis. However,
many departments follow the practice of requiring less fre—
quent reports as the probation period progresses. It is not
the practice to accept written reports from probationers
though this is sometimes permitted in exceptional cases or
cases where the probationer lives at too great a distance
from the reporting office to report in person. Reports must
generally be made to the probation oflicer assigned to the
case or to another member of the supervising staff. How-
ever, five units 1° allow probationers to report to depart-
mental clerks or secretaries. This practice, if followed regu-

arly and not merely in cases of emergency, is apt to make
ersOnal reporting little more than a formal and perfunc-
ory method of supervision. It cannot be expected to show
nything more than the fact that the probationer is still at
arge within the jurisdiction.

All of these 14 units with the exception of Allegheny
ounty, require home visiting as an essential phase of pro-
ation supervision. The general practice is to require that
uch visits be made once a month or more often, but three
nits require less frequent home visits.

Visits to the community are not required but are left to

he discretion of the officer. Generally, it may be said that

”Union and Essex Counties, N. J.; Erie and Westchester Counties, N. Y.;

incinnati, Ohio.
10 Atlantic County, N. J.; Niagara County, N. Y.; Ramsey County, Minn.:
legheny and Erie Counties, Pa.

54

the supervisory personnel in these units are well acquainted
with the community resources in their respective localities,
so that frequent appraisals of the neighborhood environ-
ment are not as necessary as might otherwise be the case.

Three units 11 make it a practice to communicate with em-
ployers of probationers and to visit the places of employ-
ment. Five departments 12 leave this to the discretion of
the individual officer. In one, Essex County, N. J ., such
visits are made only in exceptional cases and five units 13 do
not follow the practice at all. The advisability of visiting
the employers of probationers is a debatable point. In some
departments visits of officers to the probationer’s place of
employment are deemed inadvisable because of the fear that
they may jeopardize the continued employment of the proba-
tioner. Actually it is questionable whether an employer can
be kept entirely in ignorance of his employee’s status. Such
information is likely to do less damage when imparted by
the probation officer and the employer’s cooperation is en-
listed. In any event, care and judgment must be exercised by
officers as to both the length and frequency of such visits in
order that they do not tend to constitute an inconvenience
to the employer in the conduct of his business.

After a defendant has been placed on probation, it is the
routine procedure in these departments to explain the terms
and conditions of probation to him. It is not customary,
however, to have the defendant sign an acknowledgment of
the conditions. It is a general practice to modify terms to
meet new problems arising after release. Usually modifica-
tion requires the assent of the court, but such approval is
secured customarily as a matter of routine. The majority
of the units follow the practice of extending the original
probation period when this is considered advisable. Seven
departments 1‘ do so essentially on their own initiative with
the automatic approval of the court. In three the advisa-

11 Hudson and Union Counties, N. J .; Niagara County, N. Y.

1’ Erie and Westchester Counties, N. Y.; Hennepin and Ramsey Counties,
Minn.; Cincinnati, Ohio.

13 Atlantic County, N. J.; Onondaga and Monroe Counties, N. Y.: Allegheny
and Erie Counties, Pa.

14 Atlantic, Union, and Essex Counties, N. J.; Niagara County, N. Y.; Aile
gheny and Erie Counties, Pa.; Cincinnati, Ohio.

55

bility of an extension is jointly considered and acted upon
by the court and the department.15 When an extension is
ordered, the probationer does not receive formal written
notification of the action taken.

Discharge prior to the expiration of the allotted probation
period is a customary procedure in all but two departments,
Hennepin County, Minn., and Erie County, Pa. However,
in one, Ramsey County, Minn., discharge is not granted until
a minimum of 1 year has been' spent on probation. Dis-
charge at the end of the period is generally granted without
the appearance of the probationer in court; only in two
departments, Ramsey County, Minn., and Cincinnati, Ohio,
is it customary to have the probationer appear in court. Of
the other 12 units, 5 1" give a written notification of discharge,
3 17 oral, and in 1, Essex County, N. J ., the notification may
be either written or oral. Three units 19 discharge without
notification of any kind.

In revocation proceedings, in practically all instances, the
personal appearance of the probationer in court is required
and the order revoking the probation must be formally en-
tered by the court.19 These departments state that it is their
policy to recommend revocation either on conviction or plea
of guilty to a new offense or for persistent and serious vio-
lation of conditions. Usually, however, revocation is not
resorted to for breach of conditions until after warning.

The 14 units have a fairly uniform policy of referring
terminated cases to social agencies for case work follow-up
treatment, and they also furnish institutions with reports
on those probationers whose probation has been revoked and
commitment ordered. They do not commonly continue ad-
visory service after the probation period has expired.

Records and reporta—All of the 14 organizations maintain
central file rooms for all records. Generally, filino is under
the control of designated clerks who are responsible for

15 Hudson County, N. J .; Westchester County, N. Y.; Hennepin County,
Minn.

1“ Union County, N. J .; Westchester County, N. Y.; Hennepin County, Minn;
Allegheny and Erie Counties, Pa.

17 Hudson County, N. J.; Erie and Onondaga Counties, N. Y.

19 See ch. IX, for more detailed consideration of revocation proceedings.

73115—39—v0L. II 5

 

56

filing, record replacement, and the use of records. All
four units 2° type all records on standard size forms.

Reference indices are maintained in all except one dep
ment, Erie County, Pa.; in 12, these indices cover all ca
handled, and in Atlantic County, N. J ., it includes only c
supervised. The indices usually differentiate between t
cases in which? only an investigation has been made and tl
cases which are or have been under supervision. In t
units, Union County, N. J ., Monroe County, N. Y., and
cinnati, Ohio, cross references are usually made for fa
relationships.

The usual practice is to keep inactive cases filed separa
from current ones. Thirteen units 21 keep all reports on
individual case in one file jacket, but four 22 do not cons
date the information on individual probationers in this
until the case has become inactive. In these four units
supervision history data are kept in the files or notebook
the supervising officers during the period of supervision

The majority of the units use a chronological metho
recording data, supplemented by periodic summarizatio
case history developments. However, two units record
the date and type of each contact made, and three note
the date and name of the person with whom the contact
made. The majority routinely record the sources of
history data, but only about a third of the units indi
which social agencies make use of the departments’ case
tory records. Most of the departments have some systc
cross reference for family relationships in the case rec

The records of these units indicate a greater tendenc
employ records as instruments in the supervision and t
ment of probationers than is observable in many other
partments. In the majority of the fourteen units the rec
contain plans for treatment and periodic summarization
developments in each case in order to determine what 0
tives have been attained and what services have been
dered. This practice is to be encouraged, since only obj e

2t’Atlantlc County, N. J .; Onondaga County, N. Y.; Hennepin County, It
Allegheny County, Pa.

21The exception is the unit in Allegheny County, Pa.

3’ Hudson, Union, and Essex Counties, N. J.; Hennepin County, Minn

57

analysis of this sort can disclose valid criteria for evaluating
efliciency of operation.

Only nine of the well developed units 23 regularly publish
annual reports accounting for the probation work performed.
Four units 2‘ do not publish reports of the work of their indi—
vidual units; and the remaining unit, Cincinnati, Ohio, pub-
lishes reports, but these do not appear at regular intervals.

I of the reports are of a statistical nature. Differences in

he composition and treatment of statistical information
ake comparisons between units based on their own reports
f doubtful validity.25 Such statistics as are published at-

ain maximum significance when viewed in the light of the
eculiarities of the particular department to which they
fer.

METROPOLITAN AND LARGE URBAN ORGANIZATIONS

Administrative organization and general facilities.—
welve probation units are considered in this classification
nd all are located in the larger metropolitan centers in
ight States.26 As a general rule these units are occupied
xclusively with adult probation since in these areas special
ourts have been designated to handle juvenile cases. Either
e municipal or the county government finances the units.
Everyone of the 12 organizations has personnel devoting
11 time to administrative matters. On the whole, the ratio
administrative personnel to field workers seems to be
gher for this group than for the other groups studied.
hese units have, on the average, one administrative oflicer
every three field oflicers, while in the centralized county

2“Atlantic, Essex, and Union Counties, N. J.; Erie, Monroe, Onondaga, and
stchester Counties, N. Y.; Hennepin and Ramsey Counties, Minn.
24Hudson County, N. J.; Niagara County, New York; Erie and Allegheny
unties, Pa.

25 See ch. IX.

Illinois: Chicago municipal and criminal court; Maryland: Supreme Bench
Baltimore; Massachusetts: Sufiolk County superior court, Boston municipal
rt, Roxbury district municipal court (all three serve metropolitan Boston
marily); Michigan: Wayne County circuit court (Detroit); New York:
ngs County court, New York County court of general sessions (both in
tropolitan New York); Ohio: Common pleas court of Cuyahoga County,
veland municipal court; Pennsylvania: Philadelphia municipal court, men’s
ision; Wisconsin: Milwaukee municipal court.

58
organizations the ratio is about one to five. However, in
centralized State group the ratio is often more than one
eight.

Exclusive of secretarial help, the staffs of the 12 units v
from 5 to 48. Except for the Wayne County circuit co
unit, all these organizations employ more than 10 oflic
and with the same exception all employ ofiicers of both se
In fact, the departments in this group apparently o
greater opportunities for women in both administration
field work than the departments in any of the other grou
Volunteers are not used in any of the units under con
oration.

Four units 28 maintain full-time psychiatrists as staff m
bers and in one, Baltimore, Md., such services are avail
on a part-time basis. Medical and clinical services are
rendered by the staff psychiatrists, although one unit, P
delphia municipal court, has doctors on the staff in addi
'to the psychiatrists. Although most of the units do not
:such specialists as permanent staff members, it is signifi
that where they are not attached to the department’s reg
personnel, medical and psychiatric service is available
outside sources, generally without cost to the depart
The increased use of such services in the group of m
politan and large urban organizations is partly explaine
the fact that they are more easily available in large 0
through the cooperation of other municipal departm
However, many other units outside the metropolitan
might have access to such services if more eifort were
to secure them.

In two of the units 29 certain of the staff members d
their entire time to the problem of industrial place
in three other units 3° some oflicers give part-time atte
to the problem. Only one department, Philadelphia mu

”The staff of the unit attached to the men’s division of the Philad
municipal court, is exclusively male but this unit is essentially a part
larger probation unit serving all divisions of this court and women
are on the stanfs of the juvenile and women’s divisiOns.

2' Boston municipal; common pleas court, Cuyahoga County, Ohio
York County court of general sessions, New York; municipal court,
adelphia.

”Boston municipal; Philadelphia municipal.

”These are the two units in Ohio, and Milwaukee County, Wis.

.59

pa], provides vocational guidance by a staff member special-
izing in this field.

In the New York County general sessions unit special pro-
vision is made for full-time attention to research by one or
more staff members.

Oflice facilities in all but four organizations 31 permit com-
plete privacy for interviews. All of the 12 units, except the
Boston municipal court and the Suffolk County superior
court departments, keep evening oflice hours, either by ap-
pointment or from 1 to 5 nights during the week. None of
these departments utilize public buildings such as schools
and libraries as district oflices for the interviewing of proba-
tioners. All such activities are confined to the probation of-
fice proper. Transportation for officers is provided either
by allowances for use of public conveyances or by mileage
allowances. In the two municipal court units in Boston the

aximum yearly transportation allowance per officer is $300;

Milwaukee it is $20 per month, while in Kings County
he transportation allotment for the entire staff is limited to
1,000.

The majority of the 12 organizations under discussion
aintain reciprocal relations with probation departments in
ther States as well as with departments in their own States.
Imestigatz'on and selective practices—The metropolitan
nd large urban departments more than any others tend to-
ard a functional division of personnel for investigative and
upervisory work. In three units 32 such specialization is a
efinite policy. Three other units 33 assign some officers ex-
lusively to investigative work, while the remaining members
f their staffs have combined duties of investigation and
uperwsmn.

In four units 34 all cases appearing before the courts are
vestigated as a matter of routine and in one, Wayne County
urt in Detroit, all felony cases are investigated. In the
ther units preprobation information is secured only at the

81The three Boston units, and the Baltimoreunit.

”Chicago municipal and criminal court; Kings County court, N. Y.; New
ork County general sessions.

33 The two units in Ohio, and Roxbury municipal court.

“Roxbury municipal and Suffolk County superior in Boston, and Kings
unty and New York County general sessions in New York.

60

request of the court or as to cases where the defendant see
to be promising probation material. Usually a maxim
period of two weeks is allowed for’ the completion of
preprobation investigation.

The investigations as a rule cannot be considered intens
although the trend at present is away from the merely
functory and superficial type of examination. Some
tempt is being made to probe for and analyze the ca
factors in the defendant’s conduct.

The reports to the court are generally arranged on a top
basis. In most of the units the reports contain all of
pertinent facts of the case. However, some departm
present only a brief summary, which has little informa
of significance for the purpose of determining disposit
Definite recommendations for disposition are not com
made a part of the formal report. However, predisposi
conferences are held with judges in some units as a ma
of routine, in others, only in exceptional cases. It app
that the courts follow such recommendations as are mad
nearly all cases.

Supervision practices.—-Of the 12 representative de
ments studied, only four 35 routinely make an analysis 0
presentence investigation findings as the primary ste
supervision. An equal number attempt some classifica
of cases for degree or type of supervision required.

The metropolitan organizations uniformly require pr
tioners to make personal reports at least monthly and in
cases weekly. Little reliance is placed on written m
reports, although these are accepted in exceptional cas
where the probationer has been given permission to r
outside the city. Personal reports must usually be ma
the probation officer in charge of the case, to the superv
or to another officer. Five units 3" on occasion permit re p
to be made to a member of the clerical staff.

Home visiting is an accepted procedure of supervisi
these departments, but less stress is placed on this me

“Baltimore; Cleveland municipal; Kings County court and general se
court, New York.

3" Boston municipal, Roxbury municipal, Sufiolk County superior cour
cago municipal and criminal court, Wayne County circuit court.

61

than upon personal reporting. Community visiting is gen-
erally left to the discretion of the individual probation officer.

The majority of the departments consider it inadvisable
to visit or communicate with employers of probationers.
Two units, Roxbury municipal and Boston municipal, make
such visits in domestic relations and nonsupport cases.

Although it is a routine procedure to explain the conditions
of probation to the offender immediately after his release on
probation, only four 37 of the 12 departments require him to
sign a statement acknowledging the conditions and his in-
tent to abide by them. In one, New York County court of
general sessions, an acknowledgment is required only if the
probationer is to live beyond the jurisdiction of the court.
Usually the conditions and terms of release are changed as
the circumstances warrant. In four units 38 such modifica-
tions must be made formally by the court, but in' six 39 the
probation department has authority to alter conditions, sub-
ject, however, in three 4° to the court’s approval when the
change is unfavorable to the probationer or when the latter
objects.

It. is a general practice in the metropolitan organizations
to extend the probation period when thisseems advisable.
This matter is ordinarily left to the discretion of the proba-
ion department and courts tend to grant any extensions
ecommended as a matter of procedural routine.

Pretermination discharge is also granted when warranted
y the circumstances. However, in Kings County, N. Y.,
uch discharge can be granted only after a minimum period,
f 11/2 years in misdemeanor cases and 3 years in felony
ases, has been spent on probation. Discharge at the expira-
ion of the probation period is customarily granted without

court appearance by the probationer. Three units 41 al-

ays send the probationer a written notice of discharge and

8"Boston municipal, Sufiolk County superior court, Baltimore, Milwaukee
unicipal.

3”Roxbury municipal, Chicago municipal and criminal court, Cuyahoga
ounty common pleas court, and Milwaukee municipal.

39Boston municipal, Sufiolk County superior, Cleveland municipal, Kings
ounty court, New York County general sessions, Philadelphia municipal.
“Boston municipal, Suffolk County superior, Kings County court. In the
W0 Boston units, court approval is necessary only if the probationer objects.
41 Suffolk County superior court and the two units in New York City.

62

one unit, Boston municipal, sends written notices when
quested. The other eight units do not send their probati
ers any written notice of discharge. ,

Without exception the probationer must be given a c
hearing before probation may be revoked. In all units
viction or plea of guilty to a new offense in addition to
sistent violation of conditions constitute grounds for r
cation.

The majority of the units render continued advisory 3
ice to probationers no longer under supervision. Te
nated cases are frequently referred to other social agen
when the circumstances indicate that further case wor
necessary. In case of revocation and commitment pr
cally all forward reports to the institution, either upo
quest or as a general practice.

Records and. repm*ts.——Information concerning rec
and recording practices is available for 11 of the metro
tan organizations. Of these, eight 42 have central file ro
for all records and six units 43 have designated clerical
sonnel in charge of filing, record replacement, and the u
records. Eight units 44 type all case records, generall
standard size forms.

All of the 11 departments maintain reference in
which, in the majority of instances, cover all cases han
It is customary in these units to differentiate as to case
vestigated only, cases passed from supervision, and cu
active cases. Only two units 45 make cross reference in
record indices for family relationships.

In filing records, the general practice is to keep the a
cases separate from inactive or closed cases. Without e
tion, all information on the individual case is kept in
file jacket or envelope. The contents of the case file
arranged in chronological order, although in one de
ment, Baltimore, the only information which the cas

‘3 The Roxbury municipal, Boston municipal, and Cuyahoga County
do not have central flle rooms.

‘3 Cleveland municipal, Milwaukee municipal, Kings County court, Ne
general sessions, Boston municipal, Cuyahoga County.

“The units that do not do so for all records are Chicago municip
criminal court, Baltimore, and New York general sessions.

‘5 Boston municipal and Cleveland municipal.

63

contains is the monthly summary of supervision. Periodic
summarizations of case history developments during the pro-
bation period are made by two departmen ,4“ and two
others 4" supplement the chronological information with a
summary when probation is terminated. Most of the units
indicate in their records the source of the information there
set out and the agencies which make use of the department’s
records. Seven departments 48 make cross references in their
records to family relationships.

Although there is some evidence of the use of case records
as instruments in treatment, the general practice appears
to be to consider such records as primarily important for
the account they give of the oflicers’ activities. The records
reveal little in the way of initial plans for supervisiOn, as a
general rule. Only two or three units regularly analyze the
case records for the purpose of recording evaluations of the
services rendered and the objectives obtained.

Annual published reports are issued by seven 49 of the met-
ropolitan departments. The reports are predominantly of a
statistical nature.

SMALLER URBAN AND RURAL ORGANIZATIONS

Administrative organization and general facilitie8.——The
probation departments considered in this group are, on the
whole, less fully developed from a functional standpoint
than those previously considered. This circumstance is
largely attributable to the small size of these departments
and the lack of a centralized supervisory agency capable of
supplementing deficiencies in local service. It can hardly be
expected that an organization which has only one or two offi-
cers or functions primarily through volunteers, in a small
court, and with financing insufficient to care adequately for
even a small case load, will reveal a degree of specialization
and development comparable to departments in large urban
areas.

4" Kings County and general sessions, New York.

*7 Boston municipal and Suffolk County superior court.

48 Those that do not are the following: Roxbury municipal, Suffolk County
superior, Milwaukee municipal, and Kings County.

49Those that do not publish reports are: Boston municipal, Suffolk County
superior, Cleveland municipal, Wayne County, Kings County.

64

The small urban and rural departments are general
‘ financedbythe municipal or county government. As a ru
the department has charge of both juvenile and adult prob
tion service, with the exception of those localities whi
have entirely separate courts for minors. In the majori
of instances some member of the probation staff acts as j
venile probation officer. Some departments also handle 11
official cases for adjustment and supervision in addition
probation work.

Since the Wis usually very small, only the departme
that employ several officers have personnel giving exclusi
attention to administrative matters. In the majority of t
units either one of the regular oflicers devotes part til
to administrative functions or the judge assumes su
responsibilities.

In the more fully developed units the staff usually consi
of two or three full-time salaried officers and generally 0
or two clerical assistants. The other units, which form t
majority in this classification, have part-time, volunteer,
em aficio personnel and little or no clerical assistance.

None of the units have doctors, psychiatrists, or psycho
gists, either on a part or full-time basis, as regular staff me
bers. A few of the more advanced departments utilize co
munity resources on a gratuity basis for such clinical se
ices. In other units these services are not readily availa
While some of the units handle a sufliciently large num
of cases to warrant the use of specialized personnel in cha
of vocational guidance and industrial placement, in m
units, these problems can receive only part-time attenti

Office facilities in the units that have officers available
this phase of probation work permit privacy in interviewi
Offices are generally located in the court house and very lit
use is made of other public buildings for interviewing
reporting. Only a few units keep evening office hours.

Investigation and selection. practices.—As is to be expect
in view of the limited number of officers attached to each 111
the staffs of the small urban and rural departments perfo
both investigative and supervisory functions. Division
labor, as a rule, is not feasible in these small organizations.

65

Only in a few‘of the larger and more fully developed units
are presentence investigations made in all cases. More fre-
quently “first offenders,” cases which seem to suggest the
advisability of probationary treatment, or only cases selected
by the court are investigated. Where full-time officers are
not available, presentence investigations, if any, are made by
the prosecutor, sherifi', or police officials. The inquiry is
usually of a perfunctory nature, although in a few units
thorough findings are made.

Written investigation reports are rendered in only a few
of the departments; the general practice is to make a brief
oral statement of findings to the court. Little attempt is
made at detailed analysis of causal factors. Recommenda-
tions for disposition are given in most units only at the
request of the court; but when made, the court usually follows
them.

Superm’sz’on practices r—Sgpgrlisionef probationers is fre-
quently very haphaza1d and superficial. Only the depart-
ments that have regular professional ofiicers approach the
desired level of efficiency 1n this respect. Since many units
must rely on unsupervised volunteers or oflicials, it is evident
that supervision techniques are not thorough or intensive.
Personal reporting to the probation officer is a general re-
quirement in the more fully developed units, but written re-
ports may be substituted in many instances within the discre-
tion of the officer. No definite policies seem to exist with
regard to visiting home, community, and employer.

Aside from the units that have salaried probation officers,
probation amounts to little more than suspended sentence.
Consequently such practices as modification of probation,
extension and pretermination discharge, which are accepted
techniques in probation, receive little attention. Lacking
active supervision,.violations are not detected unless they are
of a flagrant and public character.

Records and reports.
fair records are maintained. However, no uniformity as to
the method of keeping records exists; some units use cards
and others use file jackets or envelopes. Filing practices are
not systematized as a rule. Usually the records show only
dates and types of contact arranged in a chronological order.

                                

66

In the other units the records are poorly organized and gi
little usable information. In fact, records are practical
nonexistent in many instances. V

Reports are issued only by' the more fully developed 0
ganizations, generally on an annual basis. The reports a
primarily of a statistical nature.

FEDERAL PROBATION ORGANIZATIONS

Administrative organization and general facilities.———T
federal probation units in the various judicial districts a
nuder a dual system of control. Budgetary matters and ge
eral supervision are centralized in the bureau of priso
while séfectlon of officers and routine. administration devol
upon the courts and probation officers. Federal probati
officers do not give exclusive attention to adult probati
work, but devote such time as is necessary to investigati
of juvenile cases, preparole investigations, and parole sup
vision.

In the 18 units 5° considered the staffs vary from one
seven officers and one to four secretaries. Exclusive of sec
tarial workers, the Federal probation personnel consists
most entirely of male officers. The unit in the southern d
trict of New York has one full-time female officer, while
the Boston and Connecticut units the one female secreta
has charge of women probationers. Even considering
relatively small number of women probationers, the Fede
units have fewer female officers than the other types of
ganization studied.51

As a whole, the Federal departments have adequate 0
facilities in the Federal court buildings which permit p
vacy for initial interviews with probationers. Practica
no use is made of other quarters for this purpose. Exclus
of home visits by the officer, the probation offices are

l”Connecticut; Georgia, northern and southern; Illinois, northern; Lo
ana, eastern; Massachusetts; Michigan, eastern; Missouri, eastern and w
ern; New York, eastern, western, and southern; Pennsylvania, eastern
western; South Carolina, western; Texas, northern and western; Wiscon
western.

‘1 In the fiscal year ended June 30, 1936, the total number of women pla
on probation by all Federal district courts was 963 as compared with 11,
males. Federal Offenders, 1935—36, table 80.

67

usual places for personal reporting. However, the Buffalo
and Connecticut units make use of other quarters in addition
to the probation oflice. Only the units in Chicago and the
eastern district of New York keep evening office hours, 1
night a week and 1 night every other week, respectively.
Since the officers have large areas to cover in supervising
probationers, the necessary transportation is available on a
mileage allowance basis. In some instances, however, allot-
ments for this purpose are not sufficient to permit adequate
field supervision.

None of these units maintains doctors, psychiatrists, or
psychologists on a full- or part-time basis. However, in 1936
the Public Health Service arranged to furnish psychiatric
services on a fee basis to certain district courts. For the
fiscal year ended June 30, 1937, this service was established
at the district courts of Baltimore, Boston, Denver, Detroit,
Kansas City, Missouri, New York City, and Philadelphia.
In October 1937 the service was extended to the courts in
Atlanta, Minneapolis, and Pittsburgh. Under this arrange-
ment the Public Health Service has appointed a panel of
qualified specialists subject to call through the probation
officers. The fees for services are paid from Public Health
Service appropriations.£52
. Vocational guidance and industrial placement do not re—
ceive the exclusive attention of specially designated per-
sonnel. However, individual officers give as much time and
attention to these problems as possible. Social research
projects are not undertaken by the units, but some efforts
along this line are attempted by the central office in Wash-
ington.

The Federal units have well established reciprocal rela- ,
tions among themselves, although differences in available '
personnel, case load pressures, and varying standards of work
tend to hamper the free interchange of information and
service. Similar relations with non-Federal departments
are not well developed, on the whole.

Investigation and selection practices.—Of the 18 Federal

units studied, only the St. Louis department has some mem-

5’ For a more complete description of this service, see Federal Probation
(April 1938) 42.

”a"

68

bers of its staff devote full time to investigative functio

Since the stafi's are generally small and some units have on
one officer, a division of work into investigation and supe
vision is not possible.

It is the policy of all units to make presentence investig
tions in all juvenile cases. In regard to adults, however, on
four units 53 conduct presentence investigations in practical
all cases. The usual practice is to investigate only th
cases which are likely to be placed on probation. In so
departments investigations are made only if the court
orders. The time allowed for completion of the presente
investigation varies considerably, but in the majority
units the customary period is from 1 to 2 weeks.

There is no uniformity in the thoroughness of investi
tion, although in nearly all units the inquiries, in most ca
approach the intensive level. In the majority all pertin
facts are presented in a written report arranged on a t
ical basis. Usually an analysis of causal factors is includ
but only about 1/3 of the units make definite recommendati
for disposition. However, when formal recommendati
for disposition are made the courts follow them almost wi
out exception. Predisposition conferences with the jud
are a routine practice in about half of the units, and t
some opportunity exists for making informal suggesti
as to disposition.

Supervision p7'actz'oes.—Eight 5‘ of the eighteen Fed
departments studied routinely make analysis of the
sentence investigation findings as the basic and prim
step in determining the type of supervision the partic
case may need.

The majority of the units require the probationer to rel
monthly in person in addition to monthly written rep
However, personal reports to the office are not required w
the probationer lives at too great a distance. In such 0
written reports are accepted and personal reports are
when the probation officer visits the locality on field t1

“Massachusetts; Michigan, eastern; New York, eastern; South Car

western.
“Georgia, northern and southern; Illinois, northern; Louisiana, eas

New York, southern; Missouri, Western; Texas, northern; Wisconsin, we

69*

All of the units make home visiting an essential phase of
supervision. However, the frequency of visits varies from
weekly to annually, although the general practice appears to
be monthly home visits. Community visits are usually left
to the discretion of the probation officer. The majority of
the Federal units deem it inadvisable to visit or communi-
cate with probationers’ employers on the ground that such
practice might tend to jeopardize continued employment.

After a defendant has been released on probation, it is a
customary procedure to explain the conditions and have him
Sign an acknowledgment of them. Although the terms are
generally so broad that they need be changed only in unusual
circumstances, it is the practice to modify conditions when
necessary. Probationers are not usually continued on proba-
tion beyond the period originally allotted. However, if the
probation department petitions for an extension, the courts
routinely grant the request. Discharge prior to termination
is also an infrequent practice in these units. In general, it
may be stated that the conditions and the probation period
originally imposed are seldom altered as supervision pro-
gresses.

When the probation period expires, it is a routine pro-
cedure 1n these departments to notify the probationer, either
by letter or court order. Formal discharge in open court is
a rare occurrence.

Revocation proceedings require a personal hearing before
the court. Generally, conviction or plea of guilty to a new
offense results in revocation, although in a few departments
revocation proceedings are not instituted if the new offense is
of a trivial nature. Repeated and persistent disregard of
conditions is customarily a basis for revocation.

Since the Federal units, in common with nearly all proba-
tion departments, are limited in personnel, informal super-
vision and advisory service are seldom rendered after termi-
nation of the formal probation period. However, cases are
frequently referred to other social service agencies for fur-
ther case work treatment.

Records and reporta—The majority of the 18 Federal de-
partments maintain central file rooms for all records. Where
the size of the office warrants, designated members of the

7O

clerical force are responsible for the filing and replacem
of records. All records are routinely typed on standard s
forms in about half of the units. _

Reference indices are kept in all of the units but w
varying degrees of completeness. In six departments 55
indices cover all cases that have been handled, includ'
cases investigated only, those passed from supervision,
those currently under supervision. Ten units 5“ have ind'
covering only cases that have been or are being supervi
In two, eastern New York and eastern Pennsylvania, re
ence indices are maintained only for probationers under
tive supervision. It is not the practice to make cross re
ences on the cards to indicate family relationships.

The information on each case is kept in separate
jackets, usually in chronological order. The jackets, in t
are generally filed chronologically, although some few u
have a filing system which is essentially indiscriminate.
is the general practice to keep inactive cases filed separa
. from active ones.

On the whole records do not appear to be used to the f
est extent as instruments in the treatmentof probation
In five units 57 the records indicate that definite initial p
are made for effective oversight. But periodic analyse
treatment progress are made in only three units,58 and i1
instance is an attempt made to evaluate the objectives
tained or the effectiveness of supervision in the light of
probationer’s progress. While sources of information
generally recorded, only about half of the units indicate
identity of social agencies that use the case history infor
tion or make inquiry concerning cases. In the preproba
investigation stage data obtained is at least partially
fied, but the records during supervision do not reveal
practice to any marked extent.

 

“Georgia, northern and southern; Connecticut; Massachusetts; Mic
eastern , New York, southern.

5° Illin01s northern; Louisiana, eastern; New York, eastern; Missouri,
em and western; Pennsylvania, Western; South Carolina, western;
northern and western; Wisconsin, western.

‘7 Illinois, northern; New York, southern; Missouri, eastern and wes
Texas, northern.

“Missouri, eastern; Texas, northern and western.

.J fir).

.
..l
...

..
ti

.171):

.w"

71

All of the Federal units issue annual reports, usually
mimeographed, accounting for the year’s work. Generally
the reports contain some bdescriptive material and recom-
mendations relative to the needs of the respective units, but
in the main the reports consist of statistical summaries of the
monthly records which are submitted to the central office.
Since the central office requires data to be sent in on stand-
ardized forms, the statistical sections of the yearly reports
are uniform and thus facilitate comparison between different
units.

The Bureau of Prisons does not publish an annual report
devoted to probation only. However, in the yearly publica-
tion which reviews the work of the Bureau statistical sum-
maries are included which outline the major aspects of
probation work in the Federal courts.

SUMMARY

The probation agencies in the States are organized pri-
marily on a local basis. Although Rhode Island, Vermont,
Washington, Wisconsin, North Carolina, Kentucky, and
Utah have established centralized State probation systems, in
most of the other jurisdictions probation work is organized

. on a county or municipal basis.

The centralized State organizations show a marked ten-
dency to combine probation and parole wOrk in the same
department This tendency toward consolidation of two re-
lated release procedures is a natural development and, to some
extent, avoids duplication of services with consequent saving
to the State. However, since parole administration is, in
most States, centered in one agency, it follows that consoli-
dation of the two procedures is hardly possible in the absence

of State-wide control of probation. Thus the county and
metropolitan probation departments customarily do not have '

parole duties.

‘, .55": Nearly all of the organizations in each class, with the excep-

tion of the small urban an/d rural departments, have full-

time administrative officials who are responsible for the

conduct of probation work in the department. However, the

degree of administrative oversight exercised appears to vary
73115—39—von. 11—6

4 .1“..-:_....—...__’J..-..

l

.4‘

72

perceptibly. In the centralized Statef units the ratio of
ministrative officers to field officers is about one to eight, wh
in the centralized county units it is about one to five, and
the metropolitan departments there is usually one supervis
officer to three field workers. .

The staffs of the metropolitan departments have a higl
proportion of women oflicers than any of the other grou
The Federal units customarily do not employ women ofiic
although in some instances secretaries are deputi zed to sup
vise women probationers. It is generally agreed that su
vision of the respective sexes should be by members of
same sex. However, the geographical area served and
number of women on probation within the jurisdiction of
department have to be considered before this form of s
cialized supervision can be inaugurated.

. On the whole, very few departments retain doctors,
chiatrists, or psychologists on a full- or part—time basis.
State and county organizations are able to secure these
portant services only on a fee or gratuity basis, and in prac
only occasional cases receive clinical attention from qual'
specialists. Four 59 of the metropOlitan departments 1
full—time psychiatrists as staff members, and some of
Federal units secure such services through the Public He
Service.

It is, of course, true that many probation departments
not afford to employ qualified specialists on a full-time b"
However, it would seem that most departments could
arrangements with some public agency or with private p
titioners whereby clinical examinations might be possible
suspected mental cases. The practice recently inaugur-
in the Federal departments in Atlanta, Baltimore, Bos
Denver, Detroit, Kansas City, Missouri, Minneapolis,
York City, Philadelphia, and Pittsburgh seems to be
ticularly adapted to the needs of the Federal probation s
ice. Under this arrangement qualified private special
selected and paid by the Public Health Service, are avail
on call by the probation officer. Possibly State and co

”These units are those serving the Boston municipal court, the co
pleas court of Cuyahoga County, Ohio, the New York County court of 3
sessions, and the Philadelphia municipal court.

. ,. ‘ ......—as..<..‘-......_.-u . 4 ‘

 

‘vs'fii .: «as w — nay—er.»~.

 

73

departments could work out similar arrangements with State
agencies or institutions.

Thorough presentence investigations are indispensable to
effective probation work. Regrettably, this important phase
of probation service is nonexistent or performed in a per-

functory fashion in many departments. The centralized 4:”

county and the metropolitan organizations are most ad-
vanced in this respect. Of the organizations studied, six 6°
centralized county units, four ‘51 metropolitan departments,
four 62 Federal units and a fe11? small urban and rural de-
partments conduct presentence investigations as a matter of
routine in all cases. In Rhode Island all cases in the supe-
rior courts are investigated, but district court cases are in-
vestigated only in the discretion of the court or probation
personnel.

Aside from Rhode Island, in the other centralized State

departments studied preprobation investigations are made"

in only a small percentage of the cases. This circumstance
may be partially due to the fact that the probation officers
are not in regular attendance at the various courts in the
State vested with power to grant probation. Where the de-
partment serves many courts throughout the State, it is a
physical impossibility for oflicers to be in regular attendance
unless the staff is large enough to permit assignment of at
least one officer to each court. If courts in adjacent counties
do not hold sessions at the same time, it may sometimes be
possible for one oflicer to handle investigations for more than
one court. Otherwise, the officer is forced to undertake su-
pervision without the benefit of presentence investigation
findings or, as in Washington, with the aid of the super-
ficial social inquiries conducted by sheriffs or prosecutors in
some cases.

While relatively few departments conduct presentence in-
vestigations in all cases appearing before the courts they

 

”Hudson and Essex Counties, N. J.; Erie, Monroe, Niagara, and West-
chester Counties, N. Y.

“Roxbury municipal court and Suffolk County superior court in Boston,
and the Kings County court and New York County court of general sessions
in New York City.

a Massachusetts; Michigan, eastern; New York, eastern; South Carolina,
western.

_____._.v . ....

n..— ..._.—_. «1—, -4...”

74

serve, many others investigate certain offenders. Thus
the centralized county and metropolitan departments
defendants who appear to be likely probation material
investigated. Frequently, the courts order investigation
be made. In other units felony cases are investigated
matter of routine. These practices, at least, assure that s
defendants released on probation will have been investiga
" The intensity and thoroughness of presentence investi
tions vary in the extreme. For the units as a whole, the
quiries are relatively superficial and perfunctory. Howe
in the centralized county, metropolitan, and Federal, dep
ments it is encouraging to note a tendency toward inten
and searching investigations that cover all pertinent fac
in the criminal, social, and personal history of the
fondant.63

Usually, written reports of investigative findings
submitted to the courts. However, in many of the sm
departments only brief oral statements are made by the
vestigating officer. Recommendations as to disposition
not made, as a rule, in the formal report. There seems t
a hesitancy in this matter on the part of some probation
partments. Perhaps the probation department should
undertake to suggest the specific disposition which it f
should be made, but it would seem desirable that the dep
ment indicate whether or not it considers probation a
able form of treatment for the particular case. The co
follow such recommendations in the great majority of c
If the investigations have been thorough, the depart
should feel qualified to recommend for or against probat
the added responsibility might, in fact, stimulate more
haustive inquiries.

Many departments still rely primarily upon volun
sponsors and ea: ofiicz'o personnel for the active supervi
of probationers. In Washington this is the rule, since
four field oflicers employed by the department cannot e
cise close oversight of probationers, as well as parolees, i
parts of the State. Small urban and rural departments
use volunteers and nonprofessional supervisors. Even s

63For a detailed treatment of the elements of a complete lnvestigatio
infra, ch. V.

75

of the Federal units supplement the services of full-time ofli-
cers with unpaid and unofficial sponsors. The centralized
county and metropolitan departments do not utilize volun-
teers.

While it is true that volunteer supervisors can be used
effectively in adult probation, the quality of volunteer serv-
ice depends upon careful selection, training, and direction of
the sponsors used. But the departments which rely most
heavily upon volunteer services are least able to select spon-
sors with care and closely supervise their activities. On the
whole, unofficial sponsors and volunteers are not able to de-
vote much time to their task and are seldom likely to exer-
cise more than cursory surveillance over probationers; at
best, they are poor substitutes for trained, professional, full-
time case workers.

It is the usual practice in all types of organizations to re-
quire probationers to make periodic personal reports. The
frequency of reports varies both from one department to
another and from case to case. Generally, monthly reports
are required, although the frequency is decreased toward the
end of the probation period. Personal reports are sometimes
accepted if made to some member of the clerical staff or to
any officer who happens to be on duty when the probationer
comes to the oflice. In either event, there is danger that per-
sonal reporting will degenerate into a meaningless formality.

A few departments require only written reports in all
cases, but in most instances written reports are accepted only
if the probationer is too far from the office or has received
permission to leave the jurisdiction. The metropolitan and
centralized county departments place little reliance upon
written reports.

Home and community visiting are generally considered to
be important phases of supervision. However, the organiza-
tions with small staffs and large territory perforce cannot
expect the officer to visit the probationer’s home and com-
munity very frequently. Usually, home visiting is recom-
mended, but the frequency of visits is left largely to the dis-
cretion of the officer.

Most of the departments deem it inadvisable to visit or
communicate with the probationers’ employers, on the

 

i
.-‘_ ,5
\ >1, J

76

ground that such contact-s might jeopardize continued e
ployment. Although the advisability of this practice i
debatable point, still the importance of employment as
factor in rehabilitation and the desirability of fosterin
sympathetic and cooperative attitude toward probation
the community, suggest that probation departments mi
advance both objectives through tactful relations W
employers.

Although most States limit the length of the probat
period,“ in practice the time during which a probatio
remains under supervision is a matter generally determi
by the probation department. The usual devices availa
for altering the original period fixed by the court are ext
sion and pretermination discharge. While it is customa
necessary to obtain formal court authorization in either c
the courts tend to grant approval as a matter of rout'
Thus the use of these devices, which are calculated to fa
tate individualization in treatment and to accommodate
duration of probation to circumstances as they arise, depe
upon the initiative of the supervisory agency or officer.
same is true with regard to modification of terms and
ditions. The metropolitan and centralized county organ
tions utilize these three devices more frequently than oth
a fact which may indicate that closer attention is give
the needs of the particular case. ‘

All of the departments have adopted the policy of rec

. mending revocation of probation if a new offense is c

mitted or if the probationer persistently disregards the
ditions of release. However, strict adherence to this po
is not found. In many departments the supervisory sta
so small and active oversight is so superficial that it is
sible to detect only the most flagrant violations; moreo
the interpretation of “persistent violations” varies from
unit. to another.

Generally most of the organizations, with the exceptio
some small urban and rural departments, maintain per
nent records of their work. ~Recording techniques, how

are not standardized. While routine methods of recor

“ See infra, ch. VII.

77

data must of necessity be accommodated to the size and work
of each department, the content of records should, in every
case, permit of objective analysis. Unfortunately, it is prac-
tically impossible to make evaluations and comparisons as
to the effectiveness of supervision on the basis of record con-
tents. Some departments make initial plans for treatment,
periodically summarize case history developments, analyze
problems, indicate objectives attained, and, when supervision
terminates, evaluate achievements. On the other hand, the
records of too many departments reflect only the frequency
and nature of contacts.

Undoubtedly one reason for the tendency to relegate record
keeping to a perfunctory level is the fact that staffs are un-
dermanned and clerical assistance is inadequate. But com-
plete records are necessary before objective analysis of serv-
ices rendered can be made. While the small organization
may be able to do constructive work without adequate

records, in the large units with many officers supervising at

small army of probationers it is obvious that accurate and
fairly detailed accounts of work performed are essential. It
must be emphasized, however, that elaborate records are only
means to an end and not ends in themselves.

.The inadequacy of records naturally is reflected in the 3‘
eriodic reports published by most of the larger departments.

n the main, these reports are statistical summaries of ac—
ivities for a given period. Except for the Federal units,
hich base their reports primarily on the standardized sta-
istical forms required by the central office, there is no uni-
ormity in the reports as to the quantity or quality of
nformation given, method of presentation, or definition of
erms. Comparisons, therefore, are difficult and frequently
possible.

In conclusion, examination of the facilities and character-
stics of probation organizations reveals widely varying
evels of service between departments similarly organized as

ell as types of organizations. The need for further devel-
pment of specific standards of service, procedures, and
echniques is everywhere apparent.

\/,

CHAPTER III
PROBATION PERSONNEL

INTRODUCTION

The importance of the qualifications, selection, and training
of probation officers has frequently been affirmed by leading
authorities on the subject of probation. It has been stated
that the “progress or retrogression of probation will be at-
tributable, in the final analysis, not so much to probation
itself, but to the intelligence and capability, or stupidity and
incapacity, of those who guide its destinies.” 1 Elsewhere it
has been intimated that the efiiciency of probation as one of
the institutions of criminal justice depends upon “the manner
in which it is organized and administered,” as well as “the
character, experience, skill, training, and similar character-v
istics of its personnel.” 2 The National Commission on Law
Observance and Enforcement concluded that “only persons
possessing adequate technical training and experience should
be selected to serve as probation officers.” 3 More recently the
executive director of the National Probation Association
stated that, among other minimum standards required for
successful service, “oflicers must be Well educated and have
special‘training and experience before entering the service.” ‘

Besides emphasizing the need for properly qualified per-
sonnel—qualified by both training and experience—the au-
thorities also associate the lack of adequate qualifications with
the failures of probation. Undoubtedly much of the current
criticism of probation should be confined to the inadequacies
and inaptitudes of its practitioners, since “the mechanics and
quality of administration” are more valid subjects for criti-

1Cooley, Probation and Delinquency (1927) 37.

2Michael and Adler, Crime, Law, and Social Science (1933) 318, 319.

aPenal Institutions, Probation and Parole (1931) 173, Report No. 9 of the-
Nationul Commission on Law Observance and Enforcement.

‘Proceedings, Governor’s Conference on Crime, the Criminal and Society
(N. Y. 1935) 986.

(79)

80

cism than probation principles.5 The charge has been ma
«that inefficient probation officers turn probation into a far
Further, it has been suggested that-probation outcome
closely dependent upon the qualifications of probation o
cers.7 Certainly, “one cannot discuss supervision with
touching upon the qualifications of probation officers,
without ‘a capable staff good supervision of probation
cannot be secured.” 8

Although inadequately trained probation officers constit
" a serious weakness in the administration of criminal justi
not infrequently the fault lies with the courts’ use of the p
bation oflicer. “Many courts use him for clerical purpo
others use him in a perfunctory way as a sort of court fac
tum.” 1° These shortcomings of probation in practice
ultimately involved in such adverse evaluations of probat
as a “blundering ahead,” 11 “a more or less hit-or-miss aff
with various standards of practice,” 12 and as an un
financed gesture 13 which is “becoming increasingly identi
with the older traditional processes of the criminal law.”1

Another reason why probation has “fallen short of
promise in the United States so far” is attributed to the
that probation officers have been “chosen with little eye
their fitness.” 15 It is known that “judges have appointe
probation officers relatives or friends who needed a job
the necessity of suit-able training and experience for the p
tion has been disregarded.” 1“ In the State which gave bi
to probation and which ds considered as having an effic'
system, the Judicial Council has seen fit to comment 11

 

5Sutherland, Criminology (1934) 351.

“Gillin, Criminalogy and Pe-nology (1935) 601.

TPenal Institutions, Probation and Parole, op. cit. supra. note 3, at
Cantor, Crime, Criminals, and Criminal Justice (1932) 339.

3Johnson, How Can Good Case Supervision be Secured for Adults on
but-ion! (1923) Yearbook of the National Probation Association, 167.

9 Glueck, Probation and Criminal Justice (1933) 4.

1° Stearns, The Personality of Criminals (1931) 117.

11 Haynes, Criminology (1935) 439.

1” Cooley, op. cit. supra note 1, at 29.

1’ Penal Institutions, Probation and Parole, op. cit. supra note 3, at 186.

14 Glueck, Psychiatric Treatment and Probation (1923) Yearbook of
National Probation Aswciation. 57.

‘5 Penal Institutions, Probation and Parole, loo. cit. supra note 13.

1° Report of the Special Crime Commission (Mass. Senate Document No.
1934) 19.

81

the selection of probation persormel in these words: “By and
large, we believe the district court judges endeavor to exer-
cise this power of appointment wisely but there have been
some unfortunate choices and we feel that the needed qualifi-
cations are not always well understood or present.” 1" Lack
of a high degree of efficiency among paid probation officers,
is due, among other things, to the fact that “the positions
are sometimes used as rewards for political service.” 18

Since probation, in theory, is “the application of modern,
scientific case work to individuals, outside institutions,” 19
it follows that “training in social work technique is of prime
importance” for its practitioners.” 2° “Good probation pro-‘_
cedure now rests upon the principles of social case work of 7
which it is a specialized branch. It is the application to a
particular type of behavior problem of the technique already
recognized and applied in dealing with maladjusted human
beings in general.” 21

In view of the emphasis placed upon the need for proba-
tion personnel thoroughly trained and experienced in scien-
tific case work it is necessary not only to ascertain the extent
to which qualification requirements are considered “stand-
ard,” but also to ascertain the extent to which such possible
standards are applied in practice. It is the purpose of the
present chapter (1) to examine the existing qualification
standards for probation work; (2) to ascertain the extent to
which such standards are currently applied in the selection
of probation personnel on the basis of (a) selection by purely
appointive authority and (6) selection through civil service
procedure; and (3) the extent, as well as methods of con-
tinued “in-service” training of probation personnel. In view
of the foregoing objectives, it is advisable first to examine
qualification standards proposed, regardless of the extent to
which such standards may be applied in current procedures
of selecting probation officers.

1" Tenth Report of the Judicial Council (Mass. 1934) 27.

1' Sutherland, Criminology (1934) 359.

19 Penal Institutions, Probation and Parole, op. cit. supra note 3, at 185.
2”Bates, Prisons and Beyond (1936) 282.

’1 Morris, Criminology (1934) 302.

82
STANDARDS FOR PROBATION SERVICE

Existing qualification standards.—Standards of quali
tion for the probation service have been formulated and
posed. As early as 1923 a joint committee of the Un'
States Children’s Bureau and the National Probation A
ciation proposed the following minimum qualifications
probation personnel: 22

a. Education—Preferably graduation from college or
equivalent, or from a school of social work.

b. Ewperience.—At least 1 year in case work under su
vision.

0. Good personality and character, tact, resourcefulness,
sympathy.

The author of a leading text on probation prefaces
standards he proposes with the introductory remark tha
must not be overlooked that the application of the stand
and principles given below presupposes a backgroun
much of the modern conception of human behavior an
working knowledge of effective ways of altering human
duct, in addition to an understanding of the method
social diagnosis and case work.” 23 The author then outl
the following requirements for the service: 24

The qualifications of probation oflicers should include,
erably, graduation from college, or its equivalent, or fro
school of social work and at least 1 year’s experience in 5
case work under supervision.

Definite requirements as to character and vocational
tude should be required of those who seek to become p
tion officers. Good personality, tact, resourcefulness, and
pathy are essential. Merit and fitness alone should be
basis of appointment.

By reading, studying, and attendance at conferences, p
tion oflicers should endeavor continually to increase
knowledge and capacity in order to measure up to the
responsibilities of their work.

 

2’Juvenile Court Standards (U. S. Children’s Bureau Publication No.
1923) 7. In the same year the Committee on Training for Probation
National Probation Association, recommended that workers trained in pr
social work, if selected as probation officers, would help put probation
on a more scientific basis. '

2$Cooley, Probation and Dclinquch-y (1927) 319.

“Id. at 322.

83

One of the outstanding probation departments in Califor-
nia has compared its 1928 requirements with those of 1937.
In 1928 “* * * only a high school education or its equiva-
lent was required and only a year’s experience in directing
and working with boys or girls as a leader, especially with
the wayward and delinquent.” By 1937, however, this de-
partment had raised its requirements to “graduation from
university or college or a recognized school of social work,
or 5 years paid experience with a recognized case working
agency.” 25 The director of one of the divisions of this pro-
bation department proposed, in 1932, that “the field workers
supervising probationers should have the following qualifi-
cations: 1. Wide practical social work experience. 2. Thor-
ough college education. 3. Diplomacy. 4. Alertness to new
methods of approach. 5. Tact to, guide—never drive.
6. Friendly attitude. 7. Firmness when necessary. 8. Famil-
iarization with community resources.” 2“

More recently, the United States Department of Justice
established the following qualification requirements as the
minimum standards for personnel entering the United States
Probation Service: 27

In view of the technical nature of the duties of probation
officers, and the preparation and training necessary to fulfill
adequately the requirements of such positions, the following
minimum standards for the selection of probation officers are
promulgated for the guidance of all concerned:

(a) They should be citizens of the United States.

(b) They should be graduates of a college or university of
recognized standing or have equivalent practical training in
probation work or in an allied field. One year of study in a
recognized school of social work may be substituted for 2 years
of college training. ’

(0) They should have had at least 2 years full-time experi-
ence in probation work or 2 years full-time experience as a case
worker in an accredited professional family service agency or
other social case work agency, or equivalent experience in an
allied field.

a5Monthly Leaflet No. 3 (September 1937) Probation Oflice, Los Angeles
ounty, Calif.

2'3 Miller and others, Adult Probation (Proceedings, Adult Probation Section,
nstitute of Government, University of Southern California. 1932) 37.
2”(Minimum Standards for United States Probation Service (U. S. Depart‘
ent of Justice, Circular No. 3072, January 18, 1938) 5, 6.

84

((1) They should not have reached their fifty-third birthd

(6) They should have a personality which will inspire c
fidence and enable the oflicer to secure the cooperation of th
under his direction and secure the respect and trust of
court. They should have a good reputation in the commu
from which they come, and their previous record for tempera
and integrity must be such that the good order and discip
of the probation service will not be brought into disrepute.

(f) They should be in such physical condition that they
pass an appropriate physical examination given by a represe
tive of the United States Public Health Service and meet
physical standards prescribed by that Service.

It is of particular interest to note that all of the quali
tion standards presented consider some training and exp
ence in social case work as essential for probation service.
would be of value, at this point, to consider the extent
social-work training deemed necessary.

Social-work training for probation semice.—It is ge
ally agreed by all who are versed in the problems of pr
tion service that personality, love of the work, and a kin
disposition are no longer the sole, basic qualificati
“When we talk of the education of the probation wor
many immediately think of social case-work training.
other words, a probation worker should be, if possibl
trained social worker. * * * We say that a proba
worker should be something more than a mere so
worker. * * * The problems which confront the pr
tion worker are different, if not more difiicult, than thos
the general social worker. If this be true, then the trai
which the future probation worker is to receive must be
ferent, in that it must delve at least into the subject
abnormal psychology, as well as the subjects usually
si’dered necessary in social-work training. * * * I
unnecessary to enumerate the traditional courses which
vide the ordinary social case work background. *
Such courses as Principles of Social Case Work, Social
tistics, Community Organization, The Family, Race and
migration Problems, Labor Problems are more or less st
ardized in all schools of social case work.” 2“

"Petit, The Training Course for ProbatiOn Warkers at Notre Dame (
Yearbook of the National Probation Association, 219.

J.

 

 

 

 

 

a . ‘ ~ .
.. _ _.. _,_‘ . .. '. . _. :
. .a—m‘ .—..»-.~.—. W~_»r—r

85

Another educator in the field of social work states that “it
is inevitable that eventually the long time training of proba-
tion personnel will be largely in the professional schools of
social work or in departments of social work in certain uni-

versities. Probation as a method of treating delinquency ’
cannot be separated or differentiated from the field of generic -

case work either in practice or in training, and as a special
phase of the larger sphere of generic case work, its training
programs fall logically within the function of professional
schools.” 29

Despite the tendency to designate probation work as a
special type of case work, it remains fundamentally in the
field of social case work, bearing the same relationship to
general social work that other special fields such as medical
social work, family case work, child guidance, or psychiatric
case work, bear to the general professional field of social
service. The acceptance of this premise has been clearly
evident at conferences of probation personnel, in profes-
sional papers dealing with probation problems, and in evalu-
ative studies made of probation. “The only use of designa-
tions such as children’s case worker, probation officer, family
case worker, psychiatric case worker, is for explanatory
purposes to classify the type of problem with Which the
agency concerns itself.” 30 Another probation administrator
comments, “Basically case work with adults on probation
does not differ from case work with any other type of
socially maladjusted individuals. I mean that the ultimate
object. is the same, namely, realignment of the client to his

proper place in society’s pattern. The procedural steps are

the same: Investigation, diagnosis, and treatment.” 31
Qualification standards of professional social work—Inas-
much as probation work is basically social case work, its pro-
fessional qualification standards should be no lower than
those of professional social work. The standard “require-
ments of education, professional training, experience, and
performance” established for membership in the American

29Mayo, The Training and Recruiting of Probation Officers; id. at 226.

30Reeves, Case Work with the Adult Probatvioner (1936) Yearbook of the
National Probation Association 222.

81 Crawley, Aiding the Adult Probationor; id. at 233.

86

Association of Social Workers indicate the most represent
tive “minimum equipment for the profession of social wor
The membership requirements, as set out in the by-laws of t
Association, can be summarized briefly as “graduation fr
a 4-year college plus completion of a 2-year graduate cou
in an approved school of social wor ,” or “completion of
least 2 years’ work in an approved college” and “5 additio
years in general education, technical training, or employm
in an approved agency.” Comparison of the foregoi
standards for professional social work with those previou
presented for probation work indicate that qualificati
standards for probation service are on a lower level than th
for general social work. Such disparity is particularly no
worthy in view of the fact that probation leaders recogn
social case work as basic in probation service.

Until the qualification standards for probation work
raised to the higher professional level of social service pro
tion will not have attained its true professional status. H
ever, since the standards proposed present specific objecti
for attainment and facilitate comparative evaluation, it
desirable to examine the extent to which these standards h
been established in practice. In the following three secti
will be considered (1) the predominant qualification requ'
ments applied in the selection of probation officers, (2)
methods of selection and discharge, and (3) the current p
tices relating to “in-service” or continued professional tr
ing of probation officers.

The p1ocedure adopted 1n presenting the data is the s
as that followed in chapter II. The information secu
from the representative probation departments studied
the Survey furnished the basis for the analysis of quali
tion requirements, methods of selection and discharge,
“in-service” training practices. The probation departm
studied are classified into the same five groups as in cha
II: Centralized State, centralized county, metropolitan
large urban, smaller urban and rural, and Federal organ
tions. Thus in each of the three following sections
analysis proceeds by type of organization.

87
EXISTING QUALIFICATION REQUIREMENTS

Centralized State orga-m'zatz’ons.—The qualifications re-
quired of applicants for the service by the probation units
considered under this classification are not uniform. Two of
the units essentially require a college education with major
work in the socialpsciences as the minimum standard?"2 In
Wisconsin a combination of college education and social-
work experience is considered an acceptable substitute. In
both of these units higher positions in the service require
relatively greater experience in social case work.33 The other
two probation units in this group 34 have no particular re-
quirements with regard to experience, and only the Vermont
department sets up the completion of high school as an edu-
cational requirement. .

In addition to the above qualifications, these units require :
applicants to have adequate personality,35 good character,
and physical fitness. In one unit no particular age limit is
set; 36 in another ofiicers to be employed in the future must
be under 35 years.37 One of the centralized State organiza-
tions will employ as officers persons between the ages of 25

 

32Probation department, State Board of Control of Wisconsin and division
of probation and criminal statistics, State of Rhode Island.

83111 Wisconsin, four levels of probation work are classified: These are
junior probation officers, probation oflicers, assistant supervisor, and supervisor
(these are classified by the civil service class specification of 1933). The
minimum requirements presented are for the position of junior probation
officer. In addition to these minimum requirements, 2 years of service as a
junior probation ofiicer, or 5 years of supervised social case work, or any
other equivalent combination of training and experience are necessary to
qualify for the position of probation oflicer. Five years’ experience showing
ability to carry on social service investigational work, at least 1 year of
which was in actual case work in a probation department with acceptable
standards is required, in addition to the minimum requirements, for the posi-
tion of assistant supervisor. The supervisor’s position requires 2 years more
of experience than that required for assistant supervisor.

In Rhode Island, 2 years of professional social work experience is required,
in addition to college completion with major work in the social sciences, for
the position of supervisor.

34Vermont State Board of Public Welfare and Washington State Parole
Board.

35While the term “adequate personality” is used in a general manner to
cover many personality factors, the civil service specifications in Wisconsin
make a more specific statement of personality characteristics required. These
specifications require “sympathetic understanding ct‘ modern approved methods
of supervising probationers; tact; firmness; resourcefulness; good judgment.”

3“ Probation department, State Board of Control of Wisconsin.

3’7 Vermont State Board of Public Welfare.

73115—39—v0L. II 7

 

88

and 50 years 38 and in another officers must be “adults
The use of volunteers and ea: oflioz’o personnel in the su
vision of probationers is generally‘ accepted only by
Washington unit.

Comparison of the highest minimum requirements'app
to selecting personnel for probation work in these units
the qualification standards for probation service shows
in practice a lower selective standard is followed. The
mum requirements applied in practice do not include ac
social case-work experience in addition to college comple
or its equivalent.

Centralized county organizationa—Of the 14 units stu
which are classified under this organization category, 0
units do not require some particular educational or 8
work training or experience qualifications for entering
service.40 Five units specify varying educational quali
tions but require no specific social-work training or ex
ence.41 The remaining seven units have established sp
minimum qualification requirements relative to both ed
tional attainment and social—work training or experienc

These applied standards vary with reference to both
imum educational background and social-work trainin
experience required. The variations for the eight unit
quiring completion of a high school education are as foll
Three units require an additional year of paid social-
experience;42 three units require an additional 2 yea
such social-work experience ;43 one unit requires an addit'
3 years of social-work experience ;44 and one unit requir
additional 2 years of training at a school of social work
a year of experience.45

”Division of probation and criminal statistics, State of Rhode Island

”Washington State Parole Board.

“Hennepin County Probation Department, Minnesota; quarter s
court, Erie, Pa.

“Erie County and supreme court, New York; Niagara County a
preme court, New York; common pleas court of Atlantic County,
Union County court, New Jersey; quarter sessions court, Allegheny C
Pa.

“Monroe County court, New York; Niagara County and supreme
New York; common pleas court, Cincinnati, Ohio.

4' Common pleas court of Atlantic County, N. J .; Union County court
Jersey. common pleas court of HudSOn County, N. J.

“Department of probation, County of Westchester, N. Y.

“Common pleas court of Essex County, N. J.

’’’’’
-.

89

Of the group of units requiring higher educatiOnal quali-
fications, some do and others do not require additional so-
cial-work experience. Of the three units which require a
partial college education 46 only the unit in Essex County,
N. J ., requires, in addition to such education, 1 year of social-
work experience; of the group requiring college comple-
tion,47 one unit prefers some social-work experience in addi-
tion,48 while another requires 1 year of such experience, or
substitution of graduation from a school of social work.49
It should be noted that some of the probation units allow sub-
stitution of higher educational attainment in lieu of social-
work experience.50

Also the qualification requirements relative to age vary
among the centralized county probation organizations. Six
of the units do not specify any particular age requirement,51
and two of these six units have no qualification requirements
relative to education and experience.52 The remaining eight
units set the following age Specifications: Three require appli-
cants to be over 21,53 three departments require applicants to
be 21 years or older, but not over 55 years of age ;54 the unit
in Cincinnati, Ohio, sets a minimum age requirement of 25
years; and in Ramsey County, Minn, candidates for the posi-
tion of probation officer must be between 25 and 30 years of
age. Although all units have the customary general require-
ments with regard to personality, character, and fitness, four
units specifically require applicants to pass a physical exami-

“Common pleas court of Atlantic County, N. J.; Union County court, New
Jersey; common pleas court of Essex County, N. J.

‘7 Quarter sessions court, Allegheny County, Pa.; department of proba-
tion, County of Westchester, N. Y.; Ramsey County court, Minnesota.

4‘BRamsey County court, Minnesota.

«’Department of probation, County of Westchester, N. Y.

“Union County court, New Jersey; common pleas court of Atlantic
County, N. J.; common pleas court of Essex County, N. J.; department of
probation, County of Westchester, N. Y.

“Common pleas court of Hudson County, N. J.; Monroe County court,
New York; Onondaga County court, New York; Hennepin County Probation

.Department, Minnesota; quarter sessions court, Erie, Pa.; quarter sessions

court, Allegheny County, Pa.

K2Hennepin County Probation Department, Minnesota; quarter sessions
court, Erie, Pa.

“Common pleas court of Atlantic County, Union County court, and com-
mon pleas court of Essex County, N. J.

54Erie County and supreme court, Niagara County and supreme court, and
department of probati0n, County of Westchester, N. Y.

90

nation.“ The department in Erie County, N. Y., requi
applicants to pass a mental examination also. The use
volunteers and ea: oflicz'o personnel in the supervision of pi
bationers is not a general practice in the centralized co
departments.

In summary, it appears that a majority of the centraliz
county organizations require applicants to be not less than
years nor more than 55 years of age and to have a high sch
education plus 1 to 3 years of social-work experience. Wh
these probation organizations meet the proposed qualificat'
standards for probation service insofar as social case-w
training or experience are concerned, they do not meet
proposed educational standards for attainments required
applicants. .

Metropolitan and larger urban organizatiorw.—Of the
units classified under this organization category, 6 set up
known SpeCific minimum qualification requirements relat
to education, training, or experience.58 Of the remaining
units, the department in Kings County, N. Y., requires 0
high school completion, while the other five units insist u
a college education.“ In addition to the minimum ed
tional requirements indicated, four of the units also req
social-work experience, as follows: One unit 58 require
minimum of 1 year; the Kings County, N. Y., departn
demands 2 or 3 years; and two require training in a scl
of social work as well as social-work experience.59

Eight of the units provide no qualification requiren
with respect to the applicant’s age.60 Two units require

 

“Common pleas court of Atlantic County, Union County court, and
men pleas court of Hudson County, N. J.; Erie County and supreme c
New York.

5"Municipal court of the city of Boston; superior court of Suflolk Co
Mass; probation department of the supreme bench of Baltimore city,
criminal and municipal court of Chicago, 111.; circuit court for the c
of Wayne, Mich.; municipal court of Philadelphia, Pa.

“One of these units, the municipal court of the Roxbury district 0
city of Boston, Mass, will consider experience in probation work in
stitution for college education.

58 Common pleas court of Cuyahoga County, Ohio.

I“‘Court of general sessions, county of New York, N. Y.; municipal
of Cleveland, Ohio. The Cleveland unit demands 2 years of experience.

°°In addition to the units referred to in footnote 56, the followin
included: The municipal court of the Roxbury district of the city of B
Mass, and the municipal court, Milwaukee County, Wis.

91

plicants to be not less than 21 nor more than 50 61 or 55 ”3
years of age. The remaining two units raise the minimum
age level to 25 years and lower the maximum age to 35 years 63
and 45 years.64 In addition to the foregoing specified quali-
fication requirements, these units also establish the usual
general requirements of physical fitness, adaptable person-
ality and good moral character. None of the units use volun-
teers or ex ofllez'o personnel.
In conclusion, of the 12 metropolitan departments studied,
8 many require no particular qualifications as apply specific
riteria. Among the latter, the predominant requirements
re as follows: Educationally, college completion is neces-
ary; in addition, from 1 to 3 years of social-work experi-
nce or equivalent combination of training and experience
8 specified; and the age level preferred ranges from 21
o 55 years. The majority of the metropolitan and larger
rban probation units which apply definite criteria in the
election of probation officers require educational and social-
ork training or experience, qualifications that are equiva-
ent to or slightly higher than the standards which have
een proposed for probation service. On the other hand, an
qual number of the units in this group apply no specific
ualification standards in selecting personnel.
Smaller urban and rural organizationa—The units in-
uded and studied under this classification, as a group, ap-
y no known specific qualification criteria in' the selection of
rsonnel for the service. In the majority of instances,
osecuting officials, sheriffs, other law-enforcement officers,
volunteers act as probation officers. On the whole, qualifi-
tions for probation work in the smaller urban and rural
partments are an unrelated or incidental consideration in
e selection of probation personnel.
Federal organization—Of the 18 units considered and
udied as representative of the Federal probation service,

61 Court of general sessions, county of New York, N. Y.
Kings County court, New York.

83Municipal court of Cleveland, Ohio.

“ Common pleas court of Cuyahoga County, Ohio.

92

9 “5 maintain no known specific criteria relative to nec
qualifications with regard to age, education, or special t
ing and experience. Besides the foregoing units, the de
ment in the northern district of Illinois does not speci .
particular minimum educational requirement. The re
ing eight units maintain varying educational criteria.
these, two units specify a minimum of high school co
tion,“ one unit requires some college training, but not
sarily completion; 6" two units require college co
tion; 58 and three units prefer but do not actually r
college completion “9 on the part of applicants.

In respect to special training or experience of a quali
nature, the northern Illinois unit, which specifies no
tional minimum, requires some social-work training
perience. Four other units require or prefer such expe
or training in addition to the minimum educational q
cations specified. Among the latter four, the unit in e
Missouri makes some social-work experience essential,
in the other three units 7° applicants with such experie
training are given preference. Of particular interest
fact that the unit in eastern Michigan requires satisf
completion of a probationary or trial period in actual
ice for qualification, in addition to the specified pref
for college completion and some social-work experien

Attention has been directed to the qualification sta
for the United States Probation Service, promulga
January of 1938 by the Department of Justice.
standards undoubtedly will influence the extent of a
tion of definite criteria in the selection of Federal
tion personnel in the future. The degree of influenc

“The following U. S. District Courts: Northern District of Geor
trict of Connecticut; Eastern District of Louisiana; District of M
setts; Western District of New York; Eastern District of Penns
Western District of South Carolina; Northern District of Texas;
District of Wisconsin.

“U. S. District Courts for the Western District of Pennsylvania
Southern District of Georgia.

“U. S. District Court for the Western District of Missouri.

”U. S. District Courts for the Eastern District of Missouri and
em District of Texas.

”U. S. District Courts for the Eastern District of Michigan, the
District of New York, and the Eastern District of New York.

7° U. S. District Courts for the Eastern District of Michigan, the
District of New York, and the Southern District of Georgia.

93

remain uncertain, however, in view of the fact that qualifi-
cation standards set by the Civil Service Commission when
applicants could be appointed only after examination seem
to have had little effect.71

While 13 of the units establish no age criteria, 5 units do
specify definite age ranges. There is greater variation with
respect to the minimum acceptable age than with respect to
the maximum limit. The minimum age level is set at 26
years by one unit,72 at 27 years by another,73 at 28 years by
two units,” and at 30 years by the fifth unit.” Four units
set the maximum at 40 years, while in the Southern District
of New York applicants must not be more than 35 years of
age. For the 13 units which set no age limitations, appar-
ently the previously established age range of 21 to 55 years is
still in effect. Citizenship, suitability of character, physical
fitness for the work and lack of a criminal record can be con-
sidered also as requirements customarily demanded by the
Federal service. Examination reveals a fairly general ac-
ceptance of the use of volunteers in the supervision of proba-

 

'1 Qualification requirements were established by the U. S. Civil Service
Commission relative to examinations held for United States probation oflicer
in 1926, 1927, and 1928. These examinations were open for the country
at large (except the District of Columbia) ; for the States of Georgia, Illinois,
Kentucky, New Jersey, and Pennsylvania; and for San Francisco, Calif.,
respectively.

The 1926 examination was limited to citizens between the ages of 21 and 55,
who had completed high school or had 14 credits for college entrance or were
able to pass a mental test; in addition, 1 year of paid experience in proba-
tion work, or 3 years of social work experience were required.

The 1927 examination required the following qualifications from appli-
cants: 1 year paid experience in probation work; or 2 years of experience
in social work; or 1 year of attendance at college or a school of social
work; or 3 years of experience as a volunteer probation oflicer with at
least 500 hours of work each year. The age range of acceptability was 21—55
years.

The 1928 requirements called for a high school education, or 14 credits
toward college entrance, or passing of a mental examination by those other-
wise qualified, in addition to the following: 1 year of paid experience in
probation or social work; or, completion of 1 year at college or a school
of social work; or, 2 years of experience as a volunteer in probation or
social work for at least 500 hours of work a year; and the age level for
qualification was 21—55 years. Of the 18 probation units considered in this
section of the analysis, the majority do not require an equivalent or higher
minimum of educational attainment, or equivalent qualifications of educa-
tion and experience combined.

'3 U. S. District Court for the Northern District of Illinois.

“'3 U. S. District Court for the Western District of Pennsylvania.

74 U. S. District Courts for the Eastern and Western Districts of Mis-
souri.

'5 U. S. District Court for the Southern District of New York.

94

tioners among the Federal units. It is of interest, howev
to note that, of the 10 units using volunteers, 7 limit t
practice to a small number,76 in contrast to 3 units whi
use volunteers extensively."

Summary of standards applied—The centralized Sta
probation units do not generally apply qualification criter'
Those units which do apply such standards require a c
lege education but do not call for social case-work traini
or experience. The use of volunteers by these units is not
general practice. The preferred age level is from 25 to
years.

The centralized county units generally establish the f
lowing qualification requirements: High school completi
is the required educational minimum; social work traini
or experience of from 1 to 3 years is demanded; the
ceptable age is from 21 to 55 years. Volunteers are
used in the service.

Only about half of the metropolitan and larger urb
probation departments have established specific minim
qualification requirements. Where standards of qualifi
tion are applied they generally include a minimum educat'
of college completion in addition to social-work training
experience of from 1 to 3 years, or an equivalent combinat
of such education and experience. Likewise these probat
units do not use volunteer services. The age range p
ferred by these units is 21 to 55 years.

The smaller urban and rural probation departments g
erally do not apply any specific qualification criteria in
selection of probation oflicers. They make fairly extens
use of volunteer and ea: oyficz’o personnel.

The Federal units, for the most part, require no spec
qualifications. Those units which do apply qualificat

'0 The units referred to are listed, with indication of the number of v
teers used during the approximate year period of 1935—36 in parentheses
the individual unit: U. S. District Courts of the Northern Distric
Georgia (1), the Northern District of Illinois (8), the Western Distric
Missouri (15), the Western District of New York (20), the Western Dis
of Pennsylvania (12), the Western District of South Carolina (18),
the Western District of Texas (12).

77 The U. S. District Courts of the Southern District of Georgia (160),
Eastern District of Michigan (75), and the Eastern District of Mis
(425).

95

criteria to the selection of personnel generally demand only
a high-school education, although candidates with college
training receive preferential consideration. Social-work
training or experience is not required but is given pref-
erence. The practice of using volunteers in the service to
assist the paid personnel is generally accepted. The ac-
ceptable age level is generally 21 to 55 years.

Considering the entire group of probation departments
studied, the following conclusions can be reached relative to
the extent of application of qualification standards in the
selection of probation personnel:

1. Only a minority group of the probation departments
apply definite qualification criteria in the selection of pro-
bation officers.

2. Qualification criteria, when applied in the selection of
personnel, generally require:

(a) High school completion rather than college training
as the minimum education necessary.

(6) No particular training or experience more generally
than training or experience in social case work.

(0) That the applicants be within the age range of 21-55
years.

(d) The customary general requisites of suitable per-
sonality, good moral character, and physical capacity for
the work.

Comparison of the above findings with the existing quali-
fication standards proposed for probation service, which
were presented in the initial phase of the analysis, clearly
indicates that the service has not as yet attained a standard
of qualification approaching the professional level.

METHODS OF SELECTION AND DISCHARGE

Selection of probation personnel—Although there are
varied methods used in the selection of probation person-

nel, in the majority of instances the judiciary is the final '

selective authority. However, the field from which courts

are free to choose oflicers is sometimes narrowed by civil

service requirements. In States where the probation service
is organized on a State-wide basis under a centralized de-

96.

partment, the trend seems away from vesting the appointiv
power in the judiciary.

The centralized State organizations studied do not revea
a uniform selective procedure. In Vermont the commis
sioner of public welfare, with the approval of the Governo
constitutes the appointive authority. In Washington, wher
the same agents supervise probationers as well as parolee
the State board of prison terms and paroles selects oflicer
The chief of the probation division is the appointing at
thority in Rhode Island. In Wisconsin initial selection '
through civil service examination and final appointme
from the list of eligibles is vested in the State board
control in conjunction with the administrative head of t
probation department.

In the centralized county organizations, the predomina
and fairly uniform method of selecting probation personn
is through civil service qualification with appointment
eligible applicants vested in the judiciary. In the Wes
chester County, N. Y., department the final appointive a
thority is shared by the judiciary with the administrati
head of the department. In the four units not under ci
service regulation the following selective procedures exis
The judges en banc select probation oflicers in Hennep
County, Minn.; the judge alone in Erie, Pa.; and the ju
ciary in conjunction with the administrative chiefs of t
departments in the remaining two units.78 Thus in 10
the 14 centralized county departments studied the selecti
of personnel is primarily controlled by civil service requi
ments.

Of the 12 metropolitan and larger urban departme
studied, in 5 the selection of personnel is through ci
service examination. In four of these the final appointi
authority is vested in the judiciary 7" whereas it is vest
in the chief probation officer in the New York County G
eral Sessions Court. In the non-civil-service units the s

'18 Ramsey County court, Minnesota, and quarter sessions court, Allegh
County, Pa.

”Municipal court of Cleveland and the common pleas court of Cuyah
County, Ohio; municipal court, Milwaukee County, Wis; and Kings Cou
Court, New York.

97

appointive authority is vested in the judiciary.80 Such au-
thority, however, is limited in three instances, as follows:
The judicial selection requires approval by the Governor
in the Wayne County, Mich., unit; selective power in
the Sufl'olk County superior court, Massachusetts, rests with
a connnittee of the bench, candidates being recommended by;
the chairman of the State board of probation; and the selec-
tion by the justice of the Roxbury district municipal court!
in Boston must receive the approval of the committee of the
bench of the district courts as well as that of the State board
of probation.

The judiciary has sole appointing power in the majority
of the smaller urban and rural units maintaining full-time
probation personnel. None of the units included in this
study was under civil service. Only occasionally is the
appointing power handled jointly by the judge and pro-
bation chief,81 and in some instances the judicial power is
otherwise limited.82 In a large number of these units where
the probation personnel consists of volunteers or ea: ofli’cz'o
probation ofiicers, the selective power rests with the judi-
ciary or ex ofiicz'o officers.83 Such selective authority is de-
cidedly limited in view of the fact that services have to be
volunteered.

Of the present probation personnel in the Federal organ-
ization, only a few were selected through civil service exam-
ination.84 The general selective authority in the Federal

8° Probation department of the supreme bench of Baltimore city, Md;
criminal and municipal court of Chicago, 111.; municipal court of Philadelphia,
Penn; municipal court of the city of Boston, Mass; circuit court for the
County of Wayne, Mich.; superior court of Suffolk County, Mass; municipal
court of the Roxbury district of the city of Boston, Mass.

InFor example, the eleventh district court of St. Louis County, Minn.

32 In a number of the smaller district courts in Massachusetts the selection
made by the judge requires approval of the committee of the bench of district
courts as well as that of the State board of probation.

8'In the State of Oregon, the judges, district attorneys, or peace oflicers,
at times, act as ea: ofi’z‘cio probation officers; in the ninth judicial district
court of Wyoming, probationers report personally to the court semi-annually;
in the circuit court of Jackson County, Mo., sponsors of the applicants for
probation appear before the county parole board which consists of the circuit
judges and the prosecuting attorney; in the intermediate court of Kanawha
County, W. Va., the county sheriff appoints a deputy sheriff as probation
oflicer.

“The original Federal Probation Act required appointments to be made
from the civil-service register. In 1930 this requirement was removed. 46
Stat. 503 (1930).

98

units is vested in the judiciary, which has complete contr
In the Northern Illinois and Eastern Missouri units, tl
judiciary, on their own initiative, select personnel fro
eligible candidates who have passed examinations drawn
by a selected committee of citizens. The central oflice
the Federal probation organization has exerted some infl
'ence on personnel selection. Such influence, however, h
been indirect for the most part. The standards recently p
mulgated are indicative of a more active influence by t
central administrative oflice on future selection of person
With respect to the volunteers used in the service, th
selection rests generally with the paid probation perso
subject to the customarily perfunctory judicial approval.

-Methods of discharge of probation personnel—In view
the fact that the discharge power is generally vested in
authority which has the power of selecting personnel, i
unnecessary to consider separately the practices in each t
of probation organization. Where the selective power r
solely and exclusively with the judiciary, probation ofli
serve only at the pleasure of the court. In the departme
under civil service, the power of discharge is usually ves
in the civil service authority rather than in the final
pointing authority. Where officers have civil service sta
dismissal proceedings are instituted before the civil ser
authority, which customarily will proceed with a hear
of the issue involved. In other instances, particularly w]
the selective power of the judiciary is limited, there '
similar limitation of the judiciary’s discharge power.
example, probation officers in the district courts of Ma
chusetts can be discharged only on cause determined by
bench committee of the district courts.

Qualification standards in departments under etvz‘l s
tea—The majority of the probation departments studied
without benefit of civil service in the selection of person
in only 16 of the units considered most probation 0
have civil-service status. An additional two can be
sidered under a voluntary merit system since candi
must pass examinations drawn up by a selected comm
of citizens. Although in the minority relative to all
units studied, the group under civil service embraces

99

majority of departments that apply qualification criteria in
the selection of personnel.

The civil-service units require higher educational attain
ment and more social-work training or experience than the
units not under civil service. Of the units preferring or
requiring college training in addition to social-work ex-
perience, six are under civil service 85 and four are not.86
Eleven of the units under civil service require high school
or partial college training in addition to social-work ex-
perience, whereas none of the units not under civil service
falls into this category. The units requiring only educa-
tional qualifications do not include any under civil service.
Of the non-civil-service units that accept applicants without
training or experience in social work, three require a college
education 87 and four require high school or partial college
completion.88 On the other hand, none of the non-civil-
service units requires only social-work experience, while the
Federal units in the northern district of Illinois, which is
under a voluntary merit system, accept candidates with ex-
perience in social work only. Generally, however, the quali-
fication standards applied in departments operating under
a merit system seem to approach more closely a professional
level. . _ -

Defects in selection methods—Whether probation ofiiccrs
should be appointed and selected directly by the court, by
a centralized authority or through civil-service procedure
is a difficult matter to decide. Judicial selection is the usual
method, and since probation is so intimately connected ._
with court procedure, it may be the most logical. However,

$5Probation department, State Board of Control of Wisconsin; municipal
court of Cleveland, Ohio; common pleas court of Cuyahoga C0unty, Ohio;
municipal court, Milwaukee County, Wisc.; court of general sessions, county
of New York, N. Y.; and the U. S. District Court of the Eastern District of
Missouri. .

86Division of probation and criminal statistics, State of Rhode Island;
Ramsey County court, Minn; the U. S. District Courts of the Eastern Dis-
trict of Michigan and the Southern District of New York.

57 Quarter sessions court, Allegheny County, Pa.; municipal court of the
Roxbury district of the city of Boston, Mass. (this unit allows substitution
of probation-work experience for college education); and the U. 8. District
Court of the Eastern District of New York.

88Vermont State Board of Public Welfare; U. S. District Courts of the
Southern District of Georgia, the Western District of Missouri, and the
Western District of Pennsylvania.

100

all of the current practices in selecting oflicers present cer
tain inadequacies that need to be mentioned.
Where oflicers are appointed solely by the courts, a va
riety of factors tend to inhibit the full development of pro
bation. Tenure is at the pleasure of the court, a fact whic
- not infrequently forces the oflicer to accommodate his po '
cies and practices to the philosophy of the judge and th
exigencies of politics. The tenure of judges is relativel
short in many jurisdictions and this in turn is apt to exe
a detrimental influence on the work of the probation oflice
Moreover, the development of uniform and general stan
ards is seriously handicapped when the many judges in
State, with varying degrees of sympathy for and unde
standing of probation, are free to select probation officer
Although many States provide that some State agen
shall exercise supervision over the practices in the vario
probation departments, actually the influence of th
boards or commissions is, in most instances, limited a
indirect. Even in New York, where the division of prob
tion of the department of correction has power to establi
general rules applicable throughout the State, standards a
not uniformly observed. Thus the secretary of the N
York State probation commission recently stated that “T
State division of probation has formulated rules and reg
lations, and they have the force and effect of law. Th
have been distributed to the various probation departme
throughout the State, but at the present time in numero
instances the various probation departments have not
cepted these standards, are not carrying them out, and
some cases the judges are flagrantly ignoring the rules a
the laws in their own courts.” 89 The value of State super
sion cannot be overlooked, but in order to be effective
would seem necessary for the State “not only to have d
nite powers concerning supervision and control of probati
work, but to assist probation financially, and to be in
position to withhold its financial aid if satisfactory sta
ards of probation service are not maintained.” 9°

l”Remarks of Edward J. Taylor, in Proceedings, Governor’s Conference
Crime, the Criminal and Society (N. Y. 1935) 988.
9° Penal Institutions, Probation and Parole, op. cit. supra note 3, at 201.

101

Although appointment through civil-serviCe procedure as:

sures some observance of definite qualification standards and
establishes more secure tenure for officers, defects are ap-
parent. A. customary restriction in civil-service departments
which has frequently retarded the development of proba-

tion is that which limits eligibility to residents of the county. V

“Crime does not stop at county limits and neither does de-
liquency.” It seems, therefore, that “if we are to meet the
problem at all, we must emphasize the necessity of ourselves
not stopping at county limits in order to get the very best
service that is available for our probationers.” 91 The merit
system alone has not always resulted in uniform standards;
an independent survey of probation in New Jersey stated
that the provision placing probation officers under State
civil-service regulations “has not been sufiicient to secure
throughout the State a uniformly efficient system of proba-
tion.” 92 Another weakness in civil-service systems lies in

the tendency to emphasize formal qualifications and to

overlook the more intangible factors of suitable personality
and character.

Selection and final appointment of officers by a centralized
State department makes possible the development of uniform
standards for the probation service within the State. How-
ever, this possibility is not realized when no definite quali-
fication standards are set. Only one of the centralized State
departments studied, that in Wisconsin, utilizes civil-service
examinations in the selection of ofiicers. Without the guid-
ance of established objective criteria, personnel selection by
a. centralized authority operates under many of the handi-
caps observed in a judicial appointive system.

“IN-SERVICE” TRAINING OF PERSONNEL

.The development of “in-service” training programs for
probation personnel is a necessity in view of the limited pro-
fessional qualification standards proposed and the infre-
quent application of these standards in practice. The very

91 Remarks of Agnes C. Sullivan, in Proceedings, op. cit. supra note 89, at 989.
92 Carpenter and Stanford, Report on a Survey of Probation in New Jersey
(Princeton University, School of Public and International Affairs, 1934) 15.

102

"concept of, probation as a professional field, or even ap-
proaching the level of a profession, demands that probation
service be dynamic and not static. The close relationship
of this service to the allied fields of social work and to the
fields of sociology, psychology, psychiatry, and medicine,
requires probation officers to be at least aware of develop-
ments in these sciences. Probation officers cannot remain
static in their techniques and therapies, or occupational
knowledge, and expect to keep abreast of the progress and
developments in fields closely associated with probation
service. -

The extent and methods of “in-service” training have a
direct bearing upon the progress of probation. “In-train-
ing” is not necessarily restricted to formal training courses
conducted by the individual probation units, but involves
other less formal and indirect procedures and practices.
These in-training procedures and the extent of their appli-
cation by the units in the different types of probation
organization merit examination.

Centralized State organizationa—Only the Rhode Island
Probation Department, of the four centralized State units
studied, conducts a regular staff training program, on a
continued basis, and makes attendance by the staff com-
pulsory. This unit, and the Wisconsin department, encour-
age continued formal professional study and have members
of their staffs taking courses in social work; they maintain
professional reference libraries; and they subscribe to pro-
fessional journals in the field of social case work as well as
in related fields.

Both the Rhode Island and Wisconsin units encourage
staff participation in community social-service projects.
Staff attendance at regional or State conferences of social
work is actively encouraged in both instances by providing
the transportation costs and not deducting time thus spent
from annual leave. However, only the Rhode Island unit
maintains agency membership in the local and State associa-
tions of social agencies, encourages periodic conferences with
cooperating agencies, and stimulates staff members to active
participation in community leadership.

103

Centralized county organizationa—Three of the cen-
tralized county units 93 conduct regular staff training courses,
attendance at which is compulsory in the Essex County,
N. J ., department. The Hudson County, N. J ., unit pro-
vides a lecture series to acquaint its officers with new de-
velopments and techniques in the field. Nine of the units
actively encourage members of the staffs to continue with
further professional study ;94 the remaining units show but
slight interest in this direction. In eight of the units staff
members are enrolled in formal courses in social case work
or criminology, and these oflicers constitute over one-third
of the combined total staff of these units.95 Reference
library facilities are maintained by eight units.96 With the
exception of three units 9" the centralized county group sub-
scribe to such current periodicals, besides Probation, as The

uroey, The Family, J ournal of Mental, Hygiene, Social
Service Review, and the J oarnal of Criminal Law and
Criminology.

The staff members in eight units and only the adminis-
trative officers in five departments 98 participate in com-
munity social service projects. The Onondaga County,

. Y., unit does not take part in such activities. With the
xception of the Hennepin County, Minn., department, at-

ndance at State or regional conferences of professional

orkers in the field of social service is the general practice;

93Common pleas court of Essex County, N. J.; department of probation,
ounty of Westchester, N. Y.; Hennepin County Probation Department,
innesota.

“Union County court and common pleas courts of Essex County, Atlantic
ounty, and Hudson County, N. J.; Erie and Niagara County and supreme
ourts, Onondaga and Monroe County courts, and the department of pro-
ation, County of Westchester, N. Y.

9‘iUnion County court and common pleas court of Essex County, N. J.;
rie and Niagara county and supreme courts, and the department of proba-
ion, County of Westchester, N. Y.; Hennepin County Probation Department
nd Ramsey County court, Minn.; quarter sessions court, Allegheny County, Pa.
96Union County court and common pleas courts of Essex County, Atlantic
ounty, and Hudson County, N. J.; Erie County and supreme court, Monroe
ounty court, and the probation department, County of Westchester, N. Y.;
ommon pleas court, Cincinnati, Ohio.

"Onondaga County court, New York; Hennepin County Probation Depart-
ent and Ramsey County court, Minnesota.

“Common pleas court of Atlantic County, N. J .; Erie County and supreme
urt and the department of probation, County of Westchester, N. Y.; Ramsey
ounty court, Minnesota; and common pleas court, Cincinnati, Ohio.

73115—39—von. 11—8

104

furthermore, for the majority of these units, such co
ferences are held oftener than once a year. Nearly all
the units hold agency membership in local or State orga
zations of social agencies, and most of them hold perio
conferences with related social agencies. Several of th
units also confer periodically with the police or prosecuti
authorities. It is apparent that the centralized county u
actively participate in community leadership.

Metropolitan and larger urban 07*gam'zatz'om.—Of th
units, five 9" conduct regular training programs for th
stafl’s, two of the units making attendance compulsory
Encouragement of further professional study is evidenced
the fact that oflicers in five units 101 are enrolled in for
courses in social case work, their number being about 0
fourth of the combined total staff of their units. In the
jority of the metropolitan and larger urban units contin
professional training is provided for by either departme
training programs, or formal study by individual 0ch
Reference library facilities are provided by six of the unit
two others 1‘03 partially providing reference shelves. Mos
the units subscribe to the current professional periodi
previously mentioned.

Six of the units sponsor active participation by their 8
members in community social service projects and act
ties; 10“ in five other units such participation is primarily

 

”Municipal court of the Roxbury district of the city of Boston,
municipal court, Milwaukee County, Wis; Kings County court and cou
general sessions, County of New York, N. Y.; and municipal court of

adelphia, Pa.
100 Municipal court, Milwaukee County, Wis.; municipal court of Ph’

phia, Pa.

101 Superior Court of Suffolk County, Mass; probation department 0
supreme bench of Baltimore city, Md.; common pleas court of Guy
County, Ohio; Kings County court and the court of general sessions, C
of New York, N. Y.

102 Probation department of the supreme bench of Baltimore city, Md.;
mon pleas court of Cuyahoga County and the municipal court of Clev
Ohio; municipal court, Milwaukee County, Wis; court of general ses
County of New York, N. Y.; and the municipal court of Philadelphia,

103 Kings County court, N. Y.; municipal court of the city of Boston,

104 Probation department of the supreme bench of Baltimore city, Md.;
mon pleas court of Cuyahoga County, Ohio; municipal court, Milw
County, Wis; Kings County court and court of general sessions, Coun
New York, N. Y.; municipal court of Philadelphia, Pa.

105

stricted to the administrative officers.105 With the exception
of the Baltimore department, these units encourage staff at-
tendance at State or local conferences of social work. The
frequency of these conferences, for the most part, is an-
nually. Six of the units 1°“ maintain agency membership in
State or local associations of social agencies. However, only
two of the units confer periodically with associated social
agencies,107 and but two hold similar periodic conferences
ith the police authorities.108
Smaller urban and rural organizationa—Only a few of
he more fully developed units in this class make any
ttempt at formal staff training. In the majority “in-serv-
ce” training is informal and is more of an apprenticeship.
ontinued formal study by individual officers is left essen-
ially to the initiative of the oflicer. It must be noted that
pportunity for such continued professional study is more
imited for officers in these organizations than for those in
he other organizations. These units, on the whole, do not
aintain reference libraries, nor do they as a group sub-
ribe to the professional periodicals in. the field. Agency
embership in related professional organizations, likewise,
the exception rather than the rule. The task of keeping
breast of current developments rests primarily with the
dividual probation oflicer.
Federal organization—For the Federal units, as a group,
0 “in—service” training program is established, nor do the
its actively encourage continued professional formal
udy by their officers. In two units one or two officers
ere enrolled in courses of study in social case wor .1”

105 Municipal court of the city of Boston, municipal court of the Roxbury
trict of the city of Boston, and the superior court of Suffolk County, Mass;
unicipal court of Cleveland, Ohio; and the circuit court for the County of
ayne, Mich.

1°“Common pleas court of Cuyahoga County and municipal court of Cleve-
nd, Ohio; municipal court, Milwaukee County, Wis; Kings County court
d court of general sessions, County of New York, N. Y.; and the mu-
cipal court of Philadelphia, Pa.

10" Common pleas court of Cuyahoga County and the municipal court of
eVeland, Ohio.

10$Common pleas court of Cuyahoga County, Ohio; municipal court of Phil-
elphia, Pa.

10" U. S. District Courts for the Eastern District of New York and the
orthern District of Texas.

106

Plans for a professional training program sponsored by t
central administrative office continue to await the occasi
when funds will permit accomplishment. The limited a
irregular field visits by administrative officials of the cent
ofl'ice hardly serve to coordinate field practices or stimul‘
steady improvements in probation techniques.
Professional reference library facilities are provided
two of the units.11° Five units do not subscribe to pro
sional publications,111 although an equal number 112 do
ceive such periodicals as the Survey, Journal of Psycholo
Journal of Criminal Law and Criminology, Social Ser
Review, and The Family. The latter five units also rece
Probation, but the remaining eight units receive no pro
sional periodicals other than Probation. The Federal
bation units have access to the volumes and publication
the central library in the Bureau of Prisons, but in prac
little call is made upon this library by the probation
sonnel in the field. The matter of keeping informed
current developments in probation and allied fields of w
is left primarily to the initiative 0 fthe individual offi
Among the Federal units only five encourage the sta
take part in community social service activities and p
ects,113 and in an additional five units such participatio
largely limited to the administrative personnel.114 The
practically no participation of such a nature on the par
the remaining eight units. Except for three units,115

.—

110 U. S. District Courts for the Eastern District of Michigan and the W
District of Pennsylvania. The regular law libraries available in F
and other courts are not here considered as professional reference libr
Only libraries dealing with such subjects as social service, psych
sociology, criminology, social welfare, and other related fields are t
professional reference libraries.

111 U. S. District Courts for the Northern District of Georgia, the D'
of Massachusetts, Eastern District of New York, the Northern and W
Districts of Texas.

113 U. S. District Courts for the Eastern District of Louisiana, E
District of Michigan, Southern District of New York. Eastern Distri
Missouri and the Western District of Pennsylvania.

113 U. S. District Courts for the Eastern and Western Districts of Mi
Western District of South Carolina, Western District of Texas, an
Western District of Wisconsin.

11“ U. S. District Courts for the Southern District of Georgia, Norther
trict of Illinois, Eastern District of Michigan, Eastern District of New
and the Western District of Pennsylvania.

115 U. S. District Courts for the Western District of Missouri, Wester
trict of South Carolina, and the Northern District of Texas.

107

Federal departments foster staff attendance at annual State

or regional social work conferences. However, attendance

at such conferences is often limited, since costs must usually

be borne by the individual oflicer. In some instances the

local unit or the central oflice bears the expense, but this is
ot a general practice.

Eight units hold periodic conferences with associated
ocial agencies; 116 regular meetings with the police authori-
ies are held by only three of the units; 1" and five depart-

ents maintain such relationship with the prosecuting au-
horities in their respective jurisdictions.118 A somewhat
loser relationship with social agencies is evidenced by the
act that nine of the units maintain agency membership in
ocal or State associations of social agencies.119 At best, par—
icipation in community leadership by the Federal units is
oticeably limited; certainly there would seem to be room
or greater use of social case work facilities in their juris-
'ctions.

Summary of extent of “in-service” training—The cen-
ralized State probation units do not as a group maintain
in-service” training programs for their personnel. Only
wo of the departments encourage their ofiicers to continue
rofessional study and provide facilities to assist such self-
evelpment. These two units also show some tendency
oward participation and leadership in matters affecting the
eneral community social welfare.

A few of the centralized county probation units maintain
aining programs. The majority encourage professional
udy by staff members and provide facilities helpful to such
rofessional progress. Furthermore, the majority of these

113 U. S. District Courts for the Northern District of Illinois, Eastern Dis-
‘ict of Louisiana, Eastern District of Michigan, Eastern and Western Dis-
icts of Missouri, Southern and Western Districts of New York, and the
astern District of Pennsylvania.

11' U. 8. District Courts for the Eastern District of Louisiana, Eastern
istrict of Michigan, and the Western District of Wisconsin.

“3 U. S. District Courts for the Northern District of Illinois, Eastern Dis-
‘ct of Louisiana, Eastern District of Michigan, Western District of Penn—
lvania, and the Western District of Wisconsin.

11“ U. S. District Courts for the Southern District of Georgia, Northern Dis—
ict of Illinois, Eastern District of Louisiana, Eastern District of Michigan,
astern District of Missouri, Southern and Western Districts of. New York,
e Eastern and the Western Districts of Pennsylvania.

108

units participate actively in community welfare and soc
service activities.

The metropolitan and larger urban departments do not,
a rule, provide “in-service” training programs. Appro
mately half of these probation units, however, encour
professional study and provide facilities helpful to s
advancement. The staff members in only about half
units take an active part in community social and welf
projects.

The smaller urban and rural organizations provide
clearly evident “in-service” training programs. Contin
professional study by officers, or encouragement of s
pursuits, are not noticeable. Active participation in c
munity social welfare leadership likewise appears negligi

The Federal organizations constitute another group
probation units which conduct no “in-service” training
grams and offer little active encouragement or assistanc
their officers to continue their professional study. Onl
minority of the Federal units foster staff participation
social service activities in their respective jurisdictions.

In considering the entire group of probation units stu
the following conclusions can be made relative to the ex
of “in-service” training provided probation personnel:

1. Only a minority of the probation departments con
any regular training programs for their personnel.

2. Approximately half of the units encourage and pro
facilities for continued professional study by officers. H
ever, for the most part, the undertaking of such contin
professionaldevelopment is left to the initiative of the i
vidual probation officers.

3. Only a minority of the departments participate in
broader aspects of social service or general community 8
welfare activities. The probation units, usually, are incl'
to work independently of other recognized social agenci
their communities.

4. The limited relationship with other social ser
groups clearly restricts the possibilities for informal
indirect training or development through cooperativ
associated activities on a professional level.

109
SUMMARY

Although social case work is the basic element in proba-
tion service, the qualification standards established and ap-
plied in probation work do not meet the requirements set for
professional social case work. In fact, only a minority of
the probation departments studied apply definite qualifica-
ion standards in the selection of probation oflicers. The de—

artments under civil service regulations appear to have
igher educational and experience requirements than non-
ivil service organizations.

" In the majority of the departments studied, officers are
elected by the courts. However, in the centralized State
rganizations the appointing power is generally vested in
he agencies charged with administering probation. In a
ew departments the final appointing authority is limited
y civil service regulations. With few exceptions, officers
re not chosen on the basis of uniform and clearly defined
ualifications. Unrestricted selection, either by the judiciary
r some other authority, carries with it the danger of po-
'tical pressure, non-uniform standards and insecurity of
nure. Civil service provisions, however, frequently nar-
ow the range of selection to residents of the county.

With low or non-existent qualification standards, the need\

r “in-service” training of probation oflicers is readily ap-
arent. Unfortunately, however, only a few departments

nduct regular training programs; in fact, many do not
pear to encourage or facilitate continued professional ad-
ancement. The majority of the departments studied do not
articipate actively in community-welfare projects.

The qualifications, methods of selection and training of
ersonnel are factors of primary importance to the proba-

on service in any department. High objective standards
ust be established and applied to assure the selection of
telligent and experienced officers with the character and
rsonality equal to their task. The mechanics of selection
ust be so devised that a uniform, secure, and professional
rvice based upon merit will be attained. Opportunities
d facilities for continued training of those in the service
e essential if probation is to keep abreast of advancements

110

'in allied fields. Moreover, departments and officers n

achieve closer relationships with other recognized
agencies and to assume a more active part in com
welfare projects in order that the aims of probation
instrument of criminal justice may be realized.

CHAPTER IV

THE SELECTIVE PROCESS—ELIGIBILITY FOR
PROBATION

STATUTORY PROVISIONS RELATING TO ELIGIBILITY

The eligibility of offenders for probation is determined by L/
statutory provision in most. of the States. HoweVer, the
statutory regulations pertaining to the selection of proba-
tioners vary greatly from State to State, and the lack of
uniformity in the statutes seems to be dictated rather by an
arbitrary legislative discrimination than by reason. The
most recurrent and striking difference is to be found in the
matter of judicial discretion in the selection of probationers,
some jurisdictions entrusting the subject entirely to the wis-
dom and sound judgment of their courts, while others have
surrounded their judges with a mass of restrictive and par-
ticular exceptions, allowing little latitude to the courts in
the matter. The desirability of such restrictions will be con-
sidered elsewhere in the chapter; here it is proposed to note
only the type and variety of statutory direction which
courts must follow in selecting material for treatment by
the probation method.

Actually, it is true that, in the final analysis, the question
of whether or not probation shall be granted in a partic-
ular instance lies with the court.1 This is true in almost all

tates with the exception of Iowa and Missouri. In Iowa
here exists a dual system of authority and control of pro-
bationers; the State parole board, as well as the courts, may
order the release of persons on “parole” prior to commit-
ment.2 In some counties in Missouri the exclusive “parole”
power has been vested in boards, generally consisting of the
criminal or circuit court judges and the sheriff or prosecut-

1Gonun.v.Arbach,113 Pa.Super.137,172 AIL 311 (1934).
’Iowa Code (1935) §§ 3788, 3800.

(111)

112

ing attorney.3 Generally, the grant_ of power to the co
is phrased in the statutes, at least in the initial sectio
permissive or directory terms. Almost uniformly
statutes set forth certain general, basic elements on w
the courts must satisfy themselves before granting
bation to an offender. These general provisions occur
in those States where judges possess the widest discretio
determining the question of eligibility.

As a rule the considerations outlined in the statute
inherent in the probation concept itself and include no
such general admonitions to the courts as that there sha
circumstances in mitigation of punishment, that the en
justice, the good of the community and of the defen
shall be subserved by the court’s action, and that there
be a prospect of reform in the offender.4 A typical p
sion is that of California, that “if it shall determine
there are circumstances in mitigation of punishment
scribed by law, or that the ends of justice would be subs
by granting probation to the defendant, the court shall
power in its discretion to place the defendant on prob
as hereinafter provided * * *.”5 A similar pro
is found in the Minnesota law to the effect that “whe
the court is of the opinion that by reason of the cha
of the person or the facts and circumstances of his cas
welfare of society does not require that he should
the penalty imposed by law, so long as he is thereaf
good behavior.” 6

The question of the extent to which such general
tory directions are binding on the judges has seldom
raised. However, in Illinois, in construing a pro
which reads, “if it shall appear to the satisfacti
the court that there is reasonable ground to expec
" the defendant may be reformed and. that the intere
society shall be subserved,” 7 the court held that satisf

3Mo. Stat. Ann. (Vernon, 1932) §§ 8518, 14825—14829, 14830—14836

‘See, 6. 9., D. C. Code (1929) tit. 6, § 425; N. D. Comp. Laws Ann.
§ 10950; Ohio Code Ann. (Throckmorton, 1936) § 13452—1; Ore. Co
(Supp. 1935) § 13—1144; 18 U. S. C. § 724 (1934).

50211. Pen. Code. (Deering, 1937) § 1203.

°Minn. Stat. (Mason, Supp. 1936) § 9936.

7 III. Stat. Ann. (Jones, 1936) § 37—772.

113

on one of these points alone would not suffice. The court
said: “Whether release on probation shall be granted always
rests in the discretion of the court,‘ but before the court
has the right to grant the request it must be satisfied that
there is reasonable ground to expect that the petitioner
may be reformed and that the interests of society will be
subserved. Satisfaction on one of these points will not suf-
fice. The court must be satisfied by the report of the pro-'1
bation oflicer and by other evidence that both grounds for
release on probation are present.” 3

Another general rule laid down by legislatures in a ma-
jority of States is the requirement that guilt be ascertained,
either by verdict or plea of guilty, before the accused is
eligible for probation.9 In a few jurisdictions this require—
ment is carried even further in the case of minor offenses
and it is provided, at least by implication, that sentence
must be imposed before a defendant can be released on pro-
bation.10 In relatively few States may probation be granted
prior to conviction. The Massachusetts Superior Court may
place on probation anyone before it “charged with crime.” 11
This includes any crime and may be before or after convic-
tion. Such jurisdiction is not extended to district and mu-
nicipal court-s in Massachusetts which may exercise proba-
tionary powers only after conviction.” Rhode Island
courts possess some power provisionally to release defend-
ants on probation before sentence.13 The only other States

8People v. Penn. 302 111. 488, 493, 135 N. E. 92, 95 (1922).

9D. C. Code (1929) tit. 6, § 425; Ind. Stat. Ann. (Burns, 1933) § 9—2209;
Iowa Code (1935) § 3800; Me. Rev. Stat. (1930) ch. 147, § 12; Md. Ann.
Code (Bagby, Supp. 1929) art. 27, § 577; Mich. Comp. Laws (Mason, Supp.
1935) § 17371; Minn. Stat. (Mason, Supp. 1936) § 9936; Mont. Rev. Codes
Ann. (Anderson & McFarland, 1935) § 10722; Neb. Comp. Stat. (1929)
§ 29—2213; N. J. Laws 1929, ch: 156, § 1; N. D. Comp. Laws Ann. (1913)
§ 10950; Pa. Stat. (Purdon, 1936) tit. 19, § 1051; Tenn. Code Ann. (Wil-
liams, 1934') § 11802.1; Utah Rev. Stat. Ann. (1933) § 105—36—17; Vt. Pub.
Laws (1933) § 8872; Va. Code (Michie, 1936) § 1922b; W. Va. Code Ann.
(Michie, Supp. 1933) § 6134; Wis. Stat. (1935) § 57.01 (1); 18 U. S. C.
§ 724 (1934).

10 Kan. Gen. Stat. Ann. (1935) § 62-2202; Mo. Stat. Ann. (Vernon, 1932)
§ 3810.

In both states the provisions read: [any person] “against Whom a fine
has been assessed or a jail sentence imposed. * "' *”

11Mass. Gen. Laws (1932) ch. 276, § 87.

12Iln'd.

13 R. I. Acts and Resolves 1932, ch. 1930, § 1 (3).

114

whose statutes give evidence of a power in the court
grant probation before a determination of guilt has
arrived at are Kentucky, Where again probation is exten
to any person “charged with crime,” excepting, of co
certain enumerated offenses,14 and Maine where in
county, in certain instances, one accused of a misdeme
may receive probation without arraignment.15

Whether it would be desirable for other jurisdiction
follow the example of Massachusetts and a few other S
and permit defendants to be placed on probation before t
has been any determination of guilt is questionable. I
earlier writings on probation some regret was expr
that this phase of the Massachusetts procedure had been
carded by other States in passing probation legislation.
advantages of using the probation treatment prior to
viction are generally all on the side of the offender.
cused persons who are willing to forego a determinati
the question of guilt and to accept instead a period of
bation avoid altogether the stigma which attaches to
viction and may retain whatever civil rights they
have forfeited as a result of their conviction for crime

For the State and society the advantages are not so cl
defined. Of course if probation is successfully conclude
State may be spared altogether the expense of a cr'
trial, but conversely, if probation proves unsuccessfu
there arises the need for revocation and subsequent '
ceration, the State will be at a serious disadvantage
order to mete out a just punishment to the offender
would have to be at this point a formal determinati
guilt, and if the accused should plead not guilty, the
would have some difficulty in securing a jury conv
after a long lapse of time has scattered its witness
caused their memory of events to grow dim.

Moreover, the mechanics of such a procedure are
illogical, for it would seem unquestionable that in all
tion cases, when the moment for revocation arrives
should be no necessity for a trial before the executio

1‘ Ky. Stat. (Carroll, 1936) § 979b—5.
115M6. Priv. and Spec. Laws 1905, ch. 346, 36.

:1 A ,' . .
.....~<....._..._~....4.. .-... ..

‘ 115

sentence of penal servitude can be ordered. Again, proba-
tion prior to conviction presents a possibility of over-loading
that case workers in the field since the trial process will of
necessity eliminate many offenders from the possibility of
probation, either by acquittal or some other means.

The probation statutes of many States, after a statement ,
as to the general considerations which shall guide the courts i
in the selection of probationers, list in addition certain
excepted crimes, conviction of which bars the defendant
from receiving the benefits of probation. While, in some
instances, there is a notable lack of uniformity in the selec-
tion of excepted crimes, as a rule, the States have followed
in broad outline a somewhat similar policy and the crimes
excluded fall into a few broad classifications as to type",

A consideration of the excepted crimes falling within these
groups leads to the conclusion that, regardless of the wis-
dom of the policy behind thus limiting judicial discretion,
the legislatures have not in all cases merely compiled meanJ
ingless lists with no justification for their existence. In the

» main, the crimes for which no judicial discretion in the

matter of probation exists are either those which society
generally most abhors or with which law-enforcing agencies
have found it particularly difficult to cope. In a few scat-
tered instances, particularly with regard to mercenary
crimes, this is not the case, but generally, it is believed, such
a conclusion is demonstrable. As such excepted crimes are
classified in this chapter, they fall into the following
groups: (1) Crimes of violence, (2) crimes involving the
use of a deadly weapon, (3) crimes against morals, (4)
mercenary crimes, (5) crimes against government, and (6)
crimes carrying a certain penalty.

Crimes of violence.—These crimes comprise homicide in
the various degrees, rape, felonious assault, burglary, rob-
bery, arson, kidnapping, and a few others. Twenty of the

’ thirty-eight jurisdictions having legislation on the subject,

deny probation to one convicted of murder in the first-de-

1' The classification adopted is our own and the creation of the categories

under which offenses have been classified was dictated primarily by con-
Venience.

116

gree.17 In 14 States arson 18 is excluded, and in the sa
number, rape.19 Burglary is an excepted crime in
States.20 Robbery 21 falls within the exceptions in n'
States and kidnapping 22 in six. Administering poison is
crime rendering its perpetrator ineligible in four States
In only one State, California, is mayhem one of the excep
offenses, and in the same State it is provided that probati
be denied to one who in the perpetration of the crime
which he was convicted inflicted great bodily injury or t
ture.“ Wisconsin excludes offenders convicted of seco
degree murder where the death occurred as the result 0
duel and places in the same category one convicted as an
cessory before the fact in duelling. 25

Crimes invoking the use of a deadly weapon. —In t
category fall crimes which involve directly the use of
deadly weapon and crimes an element of which is bei
armed with a deadly weapon. In two States the except'
of crimes from a possible grant of probation includes b

1" Murder: Arizona, see past note 45; California, also attempt to
mit murder if armed with a deadly weapon; Colorado, also second-de
murder; District of Columbia, any homicide regardless of degree; Id
Illinois; Indiana; Iowa; Kansas; Michigan; Missouri; Montana; Nebra
North Dakota; Ohio; Pennsylvania; Rhode Island; Washington; Wisco
also second- and third-degree murder and causing death by burning a (1
ing house in the nighttime; for Federal courts, see post note 44.

18Arson: California, if armed with a deadly weapon; District of Colum
Illinois; Indiana; Iowa; Kansas; Missouri; Montana; Nebraska; North
kota; Ohio; Pennsylvania; Rhode Island; Washington, first-degree arson

19 Rape: California, if armed with a deadly weapon; District of Colum
Illinois; Indiana; Iowa; Kansas; Missouri; Montana, assault with in
to rape; Nebraska; North‘ Dakota; Oiiio, rape without consent;

‘ sylvania, also assault and battery with intent to ravish; Rhode isl
- Washington.

”Burglary: California, it armed with a deadly weapon; Illinois, bur
of an inhabited dwelling house; Indiana; Kansas; Michigan, breaking
entering an occupied dwelling hOUSe in the nighttime; Montana, bur
of an inhabited dwelling house; Nebraska, burglary from a dwelling
at night; North Dakota, burglary of an inhabited dwelling house;
burglary of an inhabited dwelling house, Pennsylvania; Rhode Island;
ington, first— degree burglary; Wisconsin, breaking and entering a ban
trust company.

”Robbery: California, it armed with a deadly weapon; Iowa; Ka
Missouri; Nebraska, robbery or larceny from the person; Pennsylv
Rhode Island; Washington; Wisconsin, assault with intent to murde
rob.

”Kidnapping: California, if armed with a deadly weapon; Distri
Columbia; Illinois; Indiana; Pennsylvania; Wisconsin.

23Administering poison: Montana; North Dakota; Ohio; Pennsylvania.

“ Cal. Pen. Cede (Deering, 1937) § 1203.

3“Wis. Stat. (1935) § 57.04.

117

ary with explosives.26 California and New York have ap-
rently more legislation on this point than other States. .
cluded in California are offenders guilty of felonious
sault with a deadly weapon, those who' at the time of the
rpetration of the crime or at the time of arrest were
ed with a deadly weapon (unless having a lawful right
carry such weapon), and a defendant who used or at-
pted 'to use a deadly weapon in connection with the
petration of the crime of which he was convicted.27 In
w York, persons convicted of a felony committed while
ed with a weapon may not be granted probation.28 This
vision has been subjected to many amendments and in-
pretations, but it seems that it prohibits probation in the
e of persons convicted of felony while armed with a
pon both as to the crime itself and also in regard to the
reased punishment prescribed for being armed. How-
r, persons convicted of attempted felony or an attempt
any crime while armed with a deadly weapon, or con-
d of a crime, or attempted crime, committed while .an
pant of a stolen automobile, or one with fictitious license
tes or one which has been used in the commission of
e, may be placed on probation as regards the punish-
t for the crime itself, but not as to the additional pun-
ent prescribed because of the circumstances under which
as committed.29 Massachusetts denies probation in the
of any crime an element of which is being armed with
eadly weapon.30 In Michigan robbery while armed is
uded 31 and in Wisconsin assault and theft while armed
ell as breaking and entering while armed are excepted.32
'mes against morals—In this group are all sexual
es listed in the statutory exceptions except rape.33 The
ses in this group found to be most commonly excepted

a1. Pen. Code (Deering, 1937) § 1203; Wis. Stat. (1935) § 57.04.

al. Pen. Code (Deering, 1937) § 1203.

. Y. Penal Law § 2188, as amended N. Y. Laws 1933, ch. 197 and ch. 513.
ee volume I of this survey for a complete treatment of the New York
ions on this subject.

ass. Gen. Laws (1932) ch. 279, § 1, as amended Mass. Acts 1936, ch.
§ 2.

ich. Comp. Laws (Mason, Supp. 1935) § 17371.

is. Stat. (1935) § 57.04.

upra, note 19.

118

by the statutes are incest and sodomy.84 In Washin
conviction of carnal knowledge of a“ female child unde
years of age bars a defendant from probation,35 and co
tion of pandering has a like effect in Wisconsin.86

Mercenary crimea—Here are those crimes in which
primary motive or immediate result may be said to be p
for the ofl'ender. There is great disparity among the S
in the exception of crimes of this nature and this fact w
seem to lend some basis to the criticism which has
levelled at the legislative policy of restricting the co
discretion in regard to the kinds of offenses eligible for
bation. It is hard to discover a really good explanatio
the fact that in California grand theft and feloniousl
ceiving stolen goods 37 are excluded while in Illinoi
same effect is given to conviction of larceny and emb
ment of a sum over two hundred dollars.88 Kansas 0
other hand excepts larceny of a motor vehicle or live
in certain situations.”

Grimes against government—In a few States ce
crimes threatening either the State as an entity; suc
treason,40 and oifenses under the election laws 0
State,‘1 or crimes threatening the courts and the ad
tration of justice 42 have been considered as of such a 8
nature as to render probation impracticable. Along si
lines, California has denied probation by statutory pro
to any public official of the State or political subdivisi
the State, who in the discharge of his duties or offic
guilty of giving or accepting a bribe, or of embezzling
money, or of extortion.43

Crimes carrying a certain penalty—Many States
denied to their courts any power to place on pro

W 3* Illinois; Montana; N01th Dakota; Ohio; Pennsylvania, also bugger

'5 Wash. Rev. Stat. Ann. (Remington, 1932) § 2280.

”Wis. Stat. (1935) § 57.04.

37 Cal. Pen. Code. (Deering, 1937) § 1203; these crimes are excep
it defendant is armed with a deadly weapon.

3“Ill. Stat. Ann. (Jones, 1936) §37—772.

'0 Kan. Gen. Stat. Ann. (1935) § 62—2203.

‘0 Treason: Idaho, Indiana, Iowa, Michigan, Nebraska, Rhode Island.
cases are very rare in any jurisdiction within the United States.

‘1 Ill. Stat. Ann. (Jones, 1936) § 37—772.

‘9 Ibid., willful and corrupt perjury or subornation of perjury.

“Cal. Pen. Code (Deering, 1937) § 1203.

119

fl’enders found guilty of crimes carrying certain penalties
rescribed by the legislature. In many of these situations,
uite apart from any question of probation, the court would
e without discretion as to the sentence where the jury has
eturned a verdict which must always carry with it the
ame penalty, as in the case of verdict of first-degree mur-
er which in many States carries with it a mandatory sen-
nce of death. The situations of this type which in a large
ercentage of the States are excluded from the possibility
f probation are crimes carrying a sentence of death or of
'fe imprisonment,“ crimes for which the jury fixes the
unishment,“£5 and crimes for which the maximum penalty
rescribed by law exceeds a certain period.46
Restrictions because of previous criminal record—A com-
on statutory restriction upon the power of courts to grant
robation is found in statutes which limit the right to pro-
ation because of the previo ' a1 record of the de-
ndant. Under such statut lusion from probation
eatment because of previous conviction of crime is gener-
ly accomplished in one of three ways. In a few States
y first offenders are eligible for probation; 47 in the
rger number of States exclusion is made either on the
sis of previous convictions of felony 48 or of previous
prisonment for crime.49 Where first offenders alone are
igible for probation, even prior conviction of a misde-
eanor operates as a bar.50 In a few States a second con-
ction of the same crime renders an offender ineligible as in
diana where a second conviction of' robbery has such
ect,51 and in Connecticut, where an exception of those

  
 
 
 

Delaware, Iowa, Maine, Massachusetts, New York, North Carolina, West
ginia, Federal courts.

Arizona; Kentucky.

Minnesota (10 years) ; Tennessee (5 years).

7Delaware, until 1925 only first offenders were eligible; this limitation
s abolished in that year, Del. Laws 1925, ch. 214; Idaho, all first felony
enders except those guilty of treason or murder are eligible, Idaho Code
11. (1932), § 19—2501; Washington, only a person who has never before
11 convicted of a felony or a gross misdemeanor, Wash. Rev. Stat. Ann.
emington, 1932) § 2280.

California, District of Columbia, Illinois, Iowa, Kansas, Massachusetts,
chigan, Missouri.

9Montana, North Dakota, Pennsylvania.

See Washington, supra, note 47.

1Ind. Stat. Ann. (Burns, 1933), § 9—2209.

7 3115—39—v0L. II 9

 

120

otherwise eligible is made in the case of conviction
drunken driving twice within a period of 6 years.52
California statute provides that probation shall not
granted to any defendant “unless the court shall be satis
that he has never in any place been previously convicte
a felony.” ‘3

It is not clear whether the California provision requ
that the prior conviction in another State be for a or
which is a felony in that State or for a crime which
felony in,California. A somewhat similar provision e
in Colorado, but in that State the law specifically prov
that whatever the offense may have been considered in
other State, if the same offense is a felony in Colorado,
defendant is ineligible.“ In Idaho, only first-felony
fenders are eligible.55 In Michigan “no person who has
twice convicted of a felony” 5" is eligible, but again the
some doubt as to the i f the provision since it In
apply equally well eith 1) persons whose present
viction constitutes the second felony or (2) those who
been two or more times convicted of felonies prior to
present conviction. In Massachusetts one convicted
felony is ineligible if he has previously been convicted
felony.57 The Kansas provision would seem to carry
restriction still further since in that State only m
meanants are eligible for probation or in the case of
viction of felony only first offenders not convicted of ce
excepted crimes.58 Illinois grants probation only to pe
never before convicted of a crime greater than a m
meanor, except petit larceny and embezzlement,59 wit
statutory exceptions of present convictions already note

   
 

62Conn. Gen. Stat. (Supp. 1931) § 172. In Iowa a second or subs
violation of the liquor laws rendered a defendant ineligible, Iowa Code
§ 3800.

”Cal. Pen. Code (Deering, 1937) § 1203.

“Colo. Stat. Ann. (Michie, 1935) ch. 140, § 1.

‘5 Idaho Code Ann. (1932) § 19—2501.

mMich. Comp. Laws (Mason, Supp. 1935) § 17371.

57 Mass. Gen. Laws (1932) ch. 276, § 87, ch. 279, § 1, as amended.
Acts 1936. ch. 434, § 2. ,

“Kan. Gen. Stat. Ann. (1935) §§ 62—2202, 62—2203.

60111. Stat. Ann. (Jones, 1936) §§ 37—772, 37—773.

121

In Montana defendants are ineligible for probation if
previously imprisoned for crime in Montana or elsewhere “0
and the same limitation applies in Pennsylvania.61 North

akota statutes deny the courts the right to place an offender

n probation who has ”been previously imprisoned, but the
tatute is silent as to whether the provision applies merely
o imprisonment in North Dakota or whether it applies
0 imprisonment in any State.62 New York prohibits pro-
ation to fourth—offenders, that is, persons who have three
imes previously been convicted of felony or attempt to com-
iit felony. “3

It 1s to be noted that while many States do not by specific

tatutory provision deny probation to those previously con-
icted of or imprisoned for crime, the probation statutes of
any of the States specifically require that the probation
fficer in making his investigation shall particularly in-
uire into the defendant’s pr criminal record and in-
lude the facts as to such rec the report to the court.
uch is the case in Kentucky 64 and Vermont “5 and in Cum-
erland county in Maine. 66

While the number of offenses excepted specifically and by
ame in the statutes would at first consideration appear to
e not so large, it must be remembered that the exclusion of

imes punishable by death or life imprisonment in many
tates increases this number appreciably. The penalty of
ath or of life imprisonment is not confined in all States to
urder and treason which come first to mind in thinking of
e death penalty. First-degree burglary 3" and rape “8 are
pital offenses in some States and in recent years kidnaping

s been made punishable by death or life imprisonment in

any jurisdictions.69

 
 
 

6°Mont. Rev. Codes Ann. (Anderson & McFarland, 1935) § 12078.
61Pa. Stat. (Purdon, 1936) tit. 19, §§ 1051, 1081.
62N. D. Comp. Laws 'Ann. (1913) §§ 10950, 10951.
63N. Y. Penal Law §§ 2188, 1942.
“Ky. Stat. (Carroll, 1936) §979b~6.
Vt. Pub. Laws (1933) § 8872.
“Me. Rev. Stat. (1930) ch. 147, § 12.
6"See, e. 9., N. C. Code Ann. (Michie, 1935) § 4233.
”Del. Rev. Code (1935) § 5166; N. C. Code Ann. (Michie, 1935) § 4204.
6”18 U. S. C. § 4088. (1934); Del. Rev. Code (1935) § 5174; Iowa Code
35) § 12983. About two—thirds of the States inflict the death penalty
life imprisonment for kidnapping. See Note (1936) 26 J. Crim. L. 762.

122

DESIRABILITY 0F STATUTORY RESTRICTIONS ON
ELIGIBILITY

Statutory provisions excluding certain offenders from
probation are, in the main, designed to weed out the persons
who are not suitable material for the processes of probation.
, In other words, the limitations set out in the previous sec-
tion of this chapter are based upon the premise that some
defendants cannot be safely released on probation. Un-
doubtedly, it is true that “drug addicts, persistent alcoholics,
and feeble-minded prisoners with strongly developed crimi-
nal habits are not easily amenable to probationary treat-
ment. It also seems clear that prisoners who have had long
previous experience in criminal activity, who have had wide
contacts with the underworld, courts, police, and prisons, are
less amenable to probation than are those who come to the

.courts as first timers.” 7°
However, the statutor’r‘

 
 
 

lotions on eligibility for pro-
bation are not confined to rug addicts, confirmed alcoholics,
or feeble-minded prisoners. As a matter of fact, few of the
States prohibit the use of probation in such cases, but phrase
their statutory probation eligibility restrictions in terms of
the technical names of the crimes committed rather than in
terms of the behavior, physical, or mental characteristics of
offenders. Such restrict-ions seem to rest on the assumption
that ofienders who have committed certain types of crimes
are not amenable to probationary treatment.

Taken alone, the specific offense committed is an insuffi-
cient criterion for determining whether a prisoner should
' be released on probation. 71 An analysis of some factors in-
fluencing outcome on probation set out in detail in chapter
X of this Survey shows that there IS no clear indication that
offenders who have committed the so- called more vicious
crimes are poorer probation risks than others who are found
guilty of the less serious offenses. The Survey analysis of
the records of nearly 20,000 terminated probation cases

7° Penal Institutions, Probation and Parole (1931) 155, Report No. 9 of the
National Commission on Law Observance and Enforcement.

“This was recognized many years ago. but seems to have made little
impression up0n legislators. See Towne, Judicial Discretion Versus Legislation
in Determining Defendants Suitable for Probation (1912) 2 J. Crim. L. 666.

123

taken from the files of 25 probation departments in 16 States
and the District of Columbia does not reveal any universally
significant relationship between the nature of the offense
committed and behavior on probation.

Although the statutory provisions excluding from pro-
ation persons with records of prior criminal activity direct
ttention to the individual rather than the offense, it should
ot be assumed that the fact of recidivism, as defined and

ited by these provisions, is a reliable test for denying
robation treatment. The majority of such restrictions are
imed at offenders who have previously been convicted of
r imprisoned for felony. Only a few States deny proba-
ion to persons whose records reveal a prior history of mis-
emeanor convictions. The statutory distinctions between
elonies and misdemeanors are frequently arbitrary and
rtificial. It seems questionable therefore, to focus atten-

ion upon persons with prio'ny convictions and to
ore persistent misdemeanan . '

When the term “recidivist” is defined to include all per-
us who have served at least one period of incarceration in
y penal or correctional institution, whether for felony
misdemeanor, there is some evidence that recidivists do
t respond so favorably to probation as do offenders who
ve no known record of previous criminality. The Survey
alysis of recidivism and outcome on probation indicates
at first offenders have better behavior records during the
obation period than second and subsequent offenders.
owever, the fact that “repeaters” are less likely to respond
probationary treatment does not warrant the arbitrary
clusion by statute of every person with a previous crimi-
1 history. Even under present. methods of selection and
pervision many recidivists have good behavior records
ile on probation. With more discriminating selection
6. intensive supervision, it should be possible to segregate
e recidivists who are good probation risks. Although
cidivism should be considered, it should not be considered
the exclusion of many other factors or, such as employ-
nt, age, marital status, and individual characteristics of
e offender.

 

124

Rigid statutory restrictions on eligibility for probation
lead to subterfuge and circumvention as when a particular
case falls within the legal inhibition, and the court accepts
a plea of guilty to a lesser offense for which probation
is permissible if it appears that the defendant is susceptible
to probationary treatment. Such practices are not un—
known,72 and although a desirable result may be achieved
in the particularcaSe, the legislative restriction is defeated.

As long as probation is viewed as a form of leniency, it is
natural to assume that certain offenders will be denied pro-
bation purely on the basis of the crime committed. More-
over, the ideas of punishment, vindictiveness, and revenge,
still current in the philosophy of the purpose of the crimi-
nal law, attach more strongly to the offenses which are
commonly found in the classes of crime for which probation
may not be granted.73 Ev though practical considerations
require that some limit be fixed upon the number of
probationers, eligibility probation should not be deter-
mined by inflexible statutory provisions. The soundest solu-
tion to the eligibility problem is that which grants the
court broad discretion in the matter of probation. How-
ever, that discretion should be exercised only in the light of
intensive investigation of the merits of each case and with
the assurance that thorough supervision will be maintained
over the probationer. The eligibility of offenders for pro-a
bation should be based upon the findings of trained and
qualified probation oflicers equipped to investigate offenders,
rather than upon arbitrary and unrealistic statutory
restrictions.

   
 

"3 Instances of actual disregard of the statutes, without the formality of
accepting a plea to a lesser offense, are cited in Sutherland. Defects in Adult
Probation (1915), 6 J. Crim. L. 279. See also Houston, The Right Selection
of Probation Cases (1922), 12 J. Crim. L. 577.

73 See Chute, The Progress of Probation and Social Treatment in the Courts
(1933), 24 J. Crim. L. 60, 65: “There has been fear of giving too much dis-
cretion to judges in applying a system which mistakenly was thought. to be
one of leniency. These laws [forbidding use of probation after previous con-
viction or imprisonment] were enacted on theoretical grounds to increase the
deterrent fear of punishment rather than because of shown abuses of
probation."

CHAPTERV

HE SELECTIVE PROCESS: LAW AND THEORY
OF PROBATION INVESTIGATION

IMPORTANCE OF INVESTIGATION FOR PROBATION

However greatly statutory restrictions on eligibility have
een deplored and whatever their ultimate merit may prove
be, their importance in the selective process is far out-
eighed by the influence which presentence investigation,
the lack of it, may exert on the general success of the
robationary treatment of criminals. It may be that legis-
tion denying probation to various classes of offenders
1er on the basis of the name and type of their present
ense or on the mere numericgount of previous convic-
ons will exert a tremendous uence on final success in
ping with the problem of crime. An approach from this
gle would necessitate a consideration of the ultimate pos-
ble and probable results of a penological process which
events the social salvage of large numbers of wrongdoers
ithout regard for more basic considerations than the tech-
cal legal name of the offense of which convicted or the
mes and numbers of prisons which were formerly the
ylums of the defendant. These last considerations are
cessary in a study looking to an eventual recodification
d reorganization of criminal laws and administration.
e present study must concern itself primarily with an
amination of present probation practices and needs, needs
at can to a large extent be fulfilled within the existing
islative framework. Here the concrete fact of investiga-
n processes looms far larger than the highly controversial
bject of legislative restrictions as to offense, previous con-
ctions, and imprisonment.
Before probation stretches forth a hand to enlarge its
isdiction it must examine the comparative success and
ciency with which it now operates within the field already
cupied. Until those furrows have been well ploughed any

(125)

\‘\

blindly or summarily.

126

further extension will display pretensions unjustified
performance.

Even in those States where eligibility provisions have n
rowly restricted the selective powers to be exercised by
courts the necessity of selection of offenders from within
eligible classes remains. Naturally, in States where the q
tion of eligibility has never been predetermined in any m
ner by legislative enactment, the courts face a problem In
complex in nature due to the increased number of elig'
classes and to the seriousness of the transgressions for wh
probation is possible. In either situation, an adequate
vestigative process will be indispensable to effective pro
tion practices. In choosing or rejecting the human mate
for probationary treatment the courts are dispensing
obligation to society and to the criminal. The fate of b
may hang in the balance the former remotely, the la
more immediately. Such bligation cannot be perfo

 

“Probation is in essence a method of individualizatio
Any method of individualization, whether of educat
psychotherapy, or penological treatment, demands tha
program be predicated upon knowledge of individual
sons and circumstances from which broad aims may be
rived upon which to formulate specific measures.

b/ It is, then, the initial problem of a probation syste

provide for the selection of persons suitable to probatio
treatment. In large measure this burden falls upon
courts; an intelligent discharge of this duty on their
will simplify and obviate many of the possible problem
the subsequent phases of the probation system. No pla
human rehabilitation can succeed where the subject is
fitted by health and mentality or by the pressure of
whelming environmental influences for any progra
supervision, no matter how wise and enlightened.

It is the purpose of a. preprobation investigation t
pose the factors which will make for or against succe
response to probation methods in order that the courts

1Penal Institutions, Probation and Parole (1931) 156, Report No. 9
National Commission on Law Observance and Enforcement.

127

weigh and evaluate them and reach a conclusion that is at
least enlightened by knowledge.
“N o investigation of personal history is required in courts
when punishments are based on the crime committed, but
hen there is choice of punishments and particularly when
ne of the punishments like probation is fitted only to cer—
ain types of criminals, it is obvious that a thoroughgoing
nvestigation is a necessary part of the judicial procedure.” 2

STATUTORY PROVISIONS FOR INVESTIGATION

Recognition of the importance of investigation in the
robation' process is to be found in the statutes of many
urisdictions.3 Obviously, if the investigation is to have
ny bearing on the question of selection it must be accom-
lished before sentence is pronounced. Not many States
xplicitly require, however, that the investigation which
heir statutes contemplate be Ct’iucted and its results con-
idered by the court before the question of sentence is
etermined.

Perhaps the most complete statutory consideration of the
atter of investigation is that of the California law. There
efore a defendant can be given probation the court must
fer the matter to the probation officer for investigation.‘

Illinois an investigation is mandatory before probation

granted.5 Felony offenders in Michigan must be investi-
ted before sentence is imposed.6 Before suspending sen-

2 Robinson, Penology in the United States (1922), 202.

318 U. S. C. § 727 (1934); Cal. Pen. Code (Deering, 1937) §§ 1203,
03.10; Colo. Stat. Ann. (Michie, 1935) ch. 140, § 5; Conn. Gen. Stat. (1930)
6516. 6226; Del. Rev. Code (1935) § 4317; D. C. Code (1929) tit. 6,
26; Ga. Code (1933) § 27—2702; Ill. Stat. Ann. (Jones, 1936) § 37—773; Ind.
at. Ann. (Burns, 1933) § 9—2213; Ky. Stat. (Carroll, 1936) § 979b—6; Me.
v. Stat. (1930) ch. 147, §§' 11. 12, Me. Priv. and Spec. Laws 1905, ch. 346,
5, 6; Mass. Gen. Laws (1932) ch. 123, § 100A, ch. 276, § 85, ch. 279,
4A; Mich. Comp. Laws (Mason, Supp. 1935) § 17384; Neb. Comp. Stat.
929) §§ 29—2211, 29—2213; N. J. Laws 1929, ch. 156, § 2; N. Y. Code Cr.
oc. § 931, N. Y. Penal Law § 2188; N. C. Laws 1937, ch. 132, § 2; Ohio
de Ann. (Throckmorton, 1936) §§ 13451—2, 1554—2; Ore. Code Ann. (Supp.
35) § 13—1145; Pa. Stat. (Purdon, 1936) tit. 17, § 691, tit. 19, §§ 1053,
53, tit. 48, § 135; Utah Laws 1937, ch. 122. §§ 11, 15, 16; Vt. Pub. Laws
33) §§ 8868, 8872; Va. Code (Michie, 1936) § 1922b; W. Va. Code Ann.
chie, Supp, 1933) § 6134.

Cal. Pen. Code (Deering. 1937) §§ 1203, 1203.10.

Ill. Stat. Ann. (Jones, 1936) § 37—773.

Mich. Comp. Laws (Mason, Supp. 1935) § 17384.

‘..a

128

tence in any case Minnesota courts may require an investi-
gation into certain aspects of the defendant’s character and
life; 7 the statute evidently contemplates an investigation
before a decision concerning probation is reached but the
requirement is not mandatory. In New York no one may
be placed on probation, nor in felony cases may sentence
be suspended, until the report of the probation officer con-
cerning the results of the investigation is filed.8 North
Carolina’s new probation statute contains some provisions
with regard to presentence investigation, in that When the
services of a probation officer are available probation may not
be granted in felony cases until the report of an investiga-
tion has been presented to and considered by the court.“
In other cases the investigation is required (the services of
an officer being available) unless the court directs other-
wise.” The Oregon law directs that no person may be placed
on probation unless a prel' inary investigation is complete.
The effect of this provision s nullified, however, by a provi-
sion that the court may dispense with the investigation in
its discretion.11

. In other words, in only three States, California, Illi-
._ nois, and New York, do the statutes make preprobation
investigation mandatory before a defendant may be re-
leased on probation; in two, Michigan and North Caro-
lina, presentence investigation is mandatory as to felons.
In a few jurisdictions, although the statutes do not specifi-
cally require investigation prior to placing a defendant on
probation, probation officers are directed to investigate and
report to the court and are frequently required or permitted
to make recommendations to the court.

Where a statute contemplates a recommendation on the
part of the probation officer it would seem fairly clear that
the intention is that the investigation he conducted before
sentence is pronounced as an aid in determining the suitabil-
ity of the defendant for supervised release. This would

7Minn. Stat. (Mason, Supp. 1936) § 9936. see also Minn. Stat. (Mason,
1927) § 10915—6.

8N. Y. Penal Law. § 2188.

9N. C. Laws 1937, ch. 1312, § 2.

10 Ibid.

11Ore. Code Ann. (Supp. 1935) § 13—1145.

129

eem to be a fair interpretation of statutory language in
he Federal Probation Act, in Colorado, Connecticut, Dela-
are, the District of Columbia, Indiana, Maine, Massachu»
etts, Minnesota, Missouri, Nebraska, New Jersey, Utah,
ermont, Virginia, and West Virginia. Except in those‘?
tates where presentence investigation is mandatory, inves-
'gations need not be conducted unless the courts direct the
fiicers to make them.13
In two-thirds of the 38 jurisdictions which have legisla-
°on on the subject of adult probation, the statutes give some
nsideration to the investigative process.“ In many of
ese jurisdictions the statutes do not indicate what the
ope of the contemplated investigation shall be but leave
is matter to the wisdom of the court and the probation
cer in each case.15 In Pennsylvania the statute is en-
rely silent as to investigation. However, in most of the
tates where the question of invfitigation has received stat-
tory treatment, some standards have been set up as to
atters which should be brought to the attention of the
urt and probation officer as a result of the investigation.
In California, when the court directs an investigation to
undertaken, “the probation officer must thereupon make
investigation of the circumstances surrounding the crime,
(1 the prior record and history of the defendant * * *” 1“
e must further inquire into “the antecedents, character,
story, family environment, and offenses of such person.”17
Illinois a presentence investigation must ascertain the
sidence, occupation, previous convictions, and previous
obation of the defendant.18 In its discretion the court
ay order that additional information be secured concern—
g thepersonal life and dependents "of the defendant “and
ch other facts as may aid the court” either in determining
e propriety of probation or in fixing conditions.19 When
Illinois court orders an investigation to be made, it need

Supra, note 3.

See supra note 3 for citations to applicable statutory provisions.
481mm, note 3.

Federal courts, Indiana, Missouri, Oregon, Pennsylvania, Virginia.
t’Cal. Pen. Code (Deering, 1937) § 1203.
7Id. § 1203.10.

111. Stat. Ann. (Jones, 1936) § 37—773.

Ibid.

130

not delineate to the oflicer the duties prescribed by statute.20
New York probation oificers must investigate the circum-
stances of the oifense, the criminal record, social history,
and the results of any mental, physical, or psychiatric exami-
nation of the offender.21 “The antecedents, character, and
circumstances” of every person charged with felony must
be investigated by Michigan probation officers before sen-
tence is imposed.22 In North Carolina the investigation
must include the circumstances of the offense and the crimi-
nal record, social history, and present conditions of the de-
fendant.28

4 In most jurisdictions one of the important tasks of the
- investigation is to ascertain the defendant’s previous crimi-
nal record and conduct. Such provisions are found in the
statutes of 14 States.24 Other factors in the defendant’s
history toward which the statutes have directed the investi-
gative processes are the 1defendant’s antecedent,25 social
history,26 previous or general character or conduct,27 cir-
cumstances in general 28 and the circumstances surrounding
the offense?9 Misdemeanants in one county in Maine may
be released by the probation officer without arraignment
after an investigation into the defendant’s employment and
dependents.30 Directions as to the necessary investigation
in the Massachusetts law are concerned solely with the
offender’s previous criminal record.81 In Nebraska the
court must, through the probation ofiicer, ascertain the age

2"People v. Miller, 317 Ill. 33, 147 N. E. 396 (1925).

mN. Y. Code Cr. Proc., § 931.

mMich. Comp. Laws (Mason, Supp. 1935) § 17384.

=3 N. C. Laws 1937, ch. 132, § 2.

2‘ California, Connecticut, Georgia, Illinois, Kentucky, Maine (Cumberland
Connty), Massachusetts, Minnesota, Nebraska, New Jersey, New York, North
Carolina, Oregon, Vermont.

25California, Delaware, Michigan, Nebraska.

20 California, Connecticut, Georgia, Kentucky, Minnesota, New Jersey, New
York, North Carolina, Oregon, Utah. .

2" California, Connecticut, Delaware, Georgia, Michigan, Minnesota, Nebraska,
Vermont.

”Kentucky, Maine, Michigan, Utah, Vermont.

29 California, Illinois, Kentucky, Nebraska, New York, North Carolina, Oregon.

3° Me. Priv. and Spec. Laws 1905, ch. 346, § 6.

31 Mass. Gen. Laws (1932) ch. 276, § 85, ch. 279, § 4A.

131

f the defendant, whether this is his first offense, and the
xtent of moral turpitude involved.82

Physical, mental and psychiatric emamz'nations.—Some -

tates have made provision for physical, mental, and
sychiatric examinations as a part of the probation investi-
ation. In those States where probation may be granted to
ersons convicted of prostitution who have a venereal
isease only on conditions which will insure medical treat-
ent and prevent the spread of the disease,83 some exami-
ation is, of course, necessary to determine the existence of
e disease. Of the States having such statutory provisions,
owever, only Connecticut has any direct provision as to
1e examination which is vital to the successful application
the statute.“ Although New York has not expressly
ovided for such an examination in its statutes, the New
ork Court of Appeals has held that the examination
hich may be ordered by the trial court in connection with
ostitution cases is not an unconstitutional invasion of the
fendant’s rights but a valid exercise of the police power.85
The value of psychiatric and psychological examinations
s received greater recognition in Massachusetts than in
y other State. There an examination for the mental con-
ion of persons indicted for a capital offense, or for any
ense more than once, or convicted of a felony, is required
law.36 Such an examination and the facts which it may
close is required not merely to determine suitability for
obation but also to guide the courts in selecting the char-
er of punishment to be imposed. The examination be-
es a part of the presentence investigation in probation
es and probation officers must report any relevant facts
their possession to the department of mental diseases.37
ew York requires physical, mental, and psychiatric ex-
inations to be made “whenever desirable facilities exist
refor.” 38 The New York law further charges courts with

Neb. Comp. Stat. (1920) § 29-2211.

See post ch. V, footnotes 222—225.

Conn. Gen. Stat. (1930) § 6226.

People V. Johnson, 252 N. Y. 387, 169 N. E. 619 (1930).
Mass. Gen. Laws (1932) ch. 123, § 100A.

Ibid.

N. Y. Code Cr. Proc. 931.

\T

132

the duty, in cooperation with the proper fiscal authorities,
to provide, when practicable, clinical facilities and to adopt
necessary rules for the use thereof for such physical, men-
tal, and psychiatric examinations and reports as are within
the scope of efficient investigation and supervision.39 When
such an examination is made, probation officers must report
in writing regarding the results 4° and a copy of the report
must be sent to the warden of the institution to which the
defendant is committed if sentenced to a term of more than
3 months}1
In Ohio the court may appoint two psychologists or psy-

chiatrists to make reports.42 The trial judge, in Pennsyl-
vania, has the power to require a mental examination of
the defendant and a report by a psychiatrist from any State
institution.43 Under the 1937 statute which set up a depart-
ment of adult probation the Utah board of corrections is
charged with the duty to establish clinics for the purpose
Of thoroughly investigating the social, mental, and physical
condition and background of those charged with crime. The
board must conduct examinations wherever required and,
upon completing such an examination, file a copy 'of its find-
ings and formal clinical report with the court having juris-
diction.“ Four States, Kentucky, New Jersey, North Caro-
lina, and Oregon, have statutory provisions directing their
courts to require physical and mental examinations “when-
ever practicable” or “when facilities exist therefor.” 45

» Reports of preprobation investigation—The primary pur-
pose for which a preprobation investigation should be em-
ployed is to inform the court on the factors which will assist
it in determining whether or not to grant probation. For
this reason, a report of his findings by the probation officer
is an indispensable complement of the investigative pro-
cedure.

89Id. § 939.

4"Supra, note 38.

“Ibid.

4~‘-’Ohio Code Ann (Throckmorton, 1936) § 1554—2.

‘3 Pa. Stat. (Purdon, 1936) tit. 19, § 1153.

“Utah Laws 1937, ch. 122, § 11.

“Ky. Stat. (Carroll, 1936) § 97911—6; N. J. Laws 1929, ch. 156, § 2; N. C.
Laws 1937, ch. 132, § 2; Ore. Code Ann. (Supp. 1935) § 13—1145.

133

In the probation statutes of many States there is a bare
ention of the necessary reports. Thus in the Federal
ourts,46 Indiana,47 and Virginia,48 the officer is directed to
ake an investigation and “report thereon to the court.” In
ndiana, however, the rules of the State division of proba-
ion require the report to be in writing and in case the
efendant is committed to an institution, a copy of the
robation oflicer’s report must be sent to the head of the
stitution.49 Several States make no statutory provision
or reports of investigation findings.50 Many of these
tates do not by statute direct or require an investigation,51
ut in some of them investigations are in fact conducted
nd reports of findings submitted by the probation officers

the court.52 Probation officers in Colorado must make
full report to the court without unnecessary delay.53 In
onnecticut 5“ and Delaware 55 officers are required to report

the court the facts and information secured on investiga-
'on. The Maine statute simply requires the probation

cer, at the time of sentence, to give to the court, upon
quest, such information as shall be in his possession.56

The special Maine statute relating to Cumberland County
quires the officer to obtain certain information which he
all furnish the court; 57 the officer must also report to the
urt on the investigation of the facts set forth in the
fendant’s application for probation in misdemeanor
ses.58 Courts in Ohio may order an investigation and re-
rt.5° In Oregon the investigation is to be conducted by
obation officers who then report to the court; no defend-

18_ U. S. C. § 727 (1934).
71nd. Stat. Ann. (Burns, 1933) § 9—2213.
8Va. Code (Michie, 1936) § 1922b.

Gen. Rules Governing Probation (Indiana Division of Probation, 1935)
es 2, 3.

Arizona, Georgia, Illinois, Iowa, Kansas, Maryland, Michigan, Missouri,
nsylvania, Rhode Island, Wisconsin.

1 See ante, pp. 127 et seq.

See post, ch. VI.

Colo. Stat. Ann. (Michie, 1935) ch. 140, § 5.

Conn. Gen. Stat. (1930) § 6516.

Del. Rev. Code (1935) § 4317.

Me. Rev. Stat. (1930) ch. 147, § 12.

7 Me. Priv. and Spec. Laws, 1905, ch. 346, § 5.

Id. § 6.

Ohio Code Ann. (Throckmorton, 1936) § 13451—2.

134:

ant may be placed on probation, unless the court directs
otherwise, until the report of the investigation is com-
plete.60 Courts in Vermont may require (a report to be
made 61 and in West Virginia the court may refer any case
to the sheriff for investigation and report.62
A few States require that the reports be presented in
writing but with no further direction as to form or sub-
stance.63 In North Carolina, while the statute merely directs
that the report be written it further provides that when the
services of an officer are available probation may not be
granted in felony cases nor in other cases unless otherwise
directed by the court, until the report of the investigation
has been presented to and considered by the court.“ In
Nebraska the officer must report to the court in writing as
to defendant’s antecedents, character, and the circumstances
of the offense, both mitigating and aggravating.65 Officers
in New York must report in writing,66 and no one may be
placed on probation, nor in felony cases may sentence be
suspended, until such report is filed.67
. Recommendations by oflicers.——The most complete statu- ‘
tory treatment of the subject of preprobation investigation
reports is that of the California law. In that State the
probation officer, after investigation, must “make a written
report to the court of the facts found upon such investiga-
tion and must accompany said report with his written rec-
ommendations as to the granting or withholding of proba-
tion to the defendant and as to the conditions of probation
if it shall be granted and the report and recommendations
must be filed with the clerk of the court as a record in the
case.”68 The court must consider this report and make a
statement to that effect when it renders its decision granting
or denying probation to the ‘ applicant.69 Apparently a

800re. Code Ann. (Supp. 1935) § 13—1145.

61Vt. Pub. Laws (1933) § 8868. _

62W. Va. Code Ann. (Mickie, Supp. 1933) § 6134.

'53 Ky. Stat. (Carroll, 1936) § 979b—6; Minn. Stat. (Mason, Supp. 1936)
9936; N. J. Laws 1929, ch. 156, § 2; N. C. Laws 1937, ch. 132, § 2.
“Supra, note 63.

05Neb. Comp. Stat. (1929) § 29—2213.

“N. Y. Code Cr. Proc. § 931.

07 N. Y. Penal Law § 2188.

”Cal. Pen. Code (Deering, 1937) § 1203.

am

135

recommendation for or against probation is mandatory in
California although the correctness of this conclusion may
be challenged, in spite of the language quoted, since the
section of the California probation law relating to the
duties of officers merely requires the officer to make a recom-
endation “when directed.”70
Three other jurisdictions have statutory provisions which
ontemplate a recommendation on the part of the investigat-
ng officer.71 In Massachusetts the statutory language is
erely permissive but the probation officer need not wait
til his recommendation is requested by the court before
resenting it.72 However, the only information which the
assachusetts statute directs the officer to secure and present
the court (apart from information as to mental state.
hich is a part of the general criminal law and not peculiar
probation procedure) is information relating to the previ-
s criminal record of the accused.73 A recommendation
enable the court to decide for or against probation is re-
ired in the District of Columbia»74 In Utah the board of
rrection, under the new statute, must file “a copy of its
dings and a formal clinical report with the court and
ake such recommendations to the court as it shall see fit.” 7‘
Time allowed for preprobation investigation—In only
0 jurisdictions do the statutes attempt to set up any stand-
ds as to the time which shall be allowed for an investiga-
-n and even there the language is general. The Colorado
tute provides that the report of the investigation must
made “without unnecessary delay.” 76 In New York
cers must report. promptly."7 This matter is generally
lated by local practices within the jurisdiction.78
Nonseleotz've use; of investigative data.—The data secured
the probation officers on investigation are not employed
Ibid.
Id. § 1203.10.
District of Columbia, Massachusetts, Utah.
Mass. Gen. Laws (1932) ch. 276, § 85.
Id. ch. 276 § 85, ch. 279, § 4A.
D. c. Code (1929) tit. 6, § 426.
Utah Laws 1937, ch. 122, § 11.
Colo. Stat. Ann. (Michie, 1935) ch‘. 140, § 5.

N. Y. Code Cr. Proc. 5 931.
See post ch. VI.

73115—39—v0L. n———10

136

solely for the purpose of determining the desirability of
probation. In many jurisdictions the law provides that
some permanent record of the oflicers’ reports be kept, some-
times as a part of the court records, or as a record of the
probation department. In a few States a. copy of the report
is sent to the institution to which the defendant is com-
mitted, if probation is withheld, to be utilized there in
classifying the prisoner and in planning a constructive
program for the period of his incarceration.

In New Jersey fingerprints and photographs of defend-
ants may be obtained except in cases where juveniles or adults
are being investigated for judges having jurisdiction in chil-
dren’s cases.79 Connecticut requires a record of the facts
investigated to be preserved for identification and other
purposes. These records are part of the court records and
are open to the inspection of all officers.80 The California
provision has already been noted.81 The probation officer
in Delaware must keep a file of the records of information
secured on investigation.” In Illinois the data secured is to
be used to aid in fixing conditions as well as in selecting
probationers.83 In two States, Kentucky 34 and New York,85
the law provides that a copy of the report is to be forwarded
to the institution to which the defendant may be committed,
although this is true in New York only if the offender is
sentenced to a term of more than three months.86 Reports
of investigation are sent to the head of the institution in
case the defendant is committed in Indiana, although the
requirement is to be found not in the statute but in the rules
of the probation department.87 '

Investigation, methods prescribed—In only a few States
do the statutes attempt to outline the procedure or methods
to be followed by the probation officer in making the investi-
gation. The Connecticut law requires the officer merely to

79 N. J. Laws 1929, ch. 156, § 2.
80 Conn. Gen. Stat. (1930) § 6516.
“1 Supra pp. 134—135, and note 68.
82Del. Rev. Code (1935) § 4317.
33111. Stat. Ann. (Jones, 1936) § 37—773.
‘ 3‘ Ky. Stat. (Carroll, 1936) § 979b—6.
85 N. Y. Code Cr. Proc. § 931.
a“Ibid.
8" Gen. Rules Governing Probation (Indiana Div. of Probation, 1935).

137

confer with the accused; report the facts found to the court;
preserve a record of these facts for identification and other
purposes.88 In Missouri, in counties having “parole” boards,
hearings are conducted and the prosecuting attorney is di-
rected, by statute, to make such investigations as the board
deems necessary.89 The new Utah probation law requires the
county attorney, on issuing a criminal complaint, to forward
to the board a copy of the complaint and other informa-
tion.“ The State bureau of identification and investigation
must provide upon request a copy of the record of any de-
fendant.91 Generally, however, the methods to be pursued
in securing the information which the court desires are not
delineated in the statutes but are left to the discretion of
hose charged with the duty of conducting the investigation.

FACTORS INFLUENCING INVESTIGATIVE PROCEDURE

I Introductory—In the foregoing paragraphs there has
een set forth in substance all the statute law on the subject
f probation investigationf Statutory treatment of this sub-
ect must of necessity be. brief and at times sketchy and
ague since this part of the probation procedure does not
eadily lend itself to treatment and crystallization in hard ‘
nd fast statutory rules. When a critical analysis of the
cope and value of investigation has been made and when,
urther, some survey of the present use of the investigation
rocedure has been completed, it will doubtless be seen that
hatever faults are at present existent in this phase of pro-
ation, the least of the contributing causes in any State is
e statutory set-up. '

Many statutes are imperfect, some are misleading or am—
iguous, others too vague. :A practical consideration of
resent investigative practices leads to the conclusion that"
efects can be remedied almost entirely without the enact-

ent of any new provisions into existing probation statutes,

those statutes contain provisions which permit the use of
robation officers. The remedies for whatever abuses that

88Conn. Gen. Stat, (1930) § 6516.

89 Mo. Stat. Ann. (Vernon, 1932) § 14827.
90Utah Laws, 1937, ch. 122, § 15.

91 Id. § 16.

138

:may obtain lie in the improvement and augmentation of
personnel, the education of courts 130‘ the value and indis-
pensability of presentence investigation, and a revision and
clarification of methods and record keeping, not in new
legislation.

Uses of the gore-probation investigation—“The degree to
which probation will fulfill its objectives depends in large
part on the quality of the preliminary investigation, which
in the last analysis is the medium through which this broad
social philosophy is applied.” 92 Initially, the practice of
conducting investigations into the personal history of pro-
bation applicants, was inaugurated with the primary pur-
pose of assisting the courts in deciding whether to grant
or deny release under supervision. In the course of over
40 years’ development new and important uses for the in-
formation supplied by investigation have been found.

An accurate and adequate knowledge of an offender’s
present life and past history will not only assist the. courts
in determining eligibility and in fixing conditions, but will
enable the officer to diagnose the social maladies for which
he must attempt to effect a cure and will assist him in map-
ping out a plan of treatment in each case. The investi-
gation will further forewarn the officer as to the progress
which he may expect of the probationer under his supervi-
sion. '

Even where probation is denied and theofiender is sen-
tenced to a term in prison, a report of the information col-
? lected by the probation officer can be utilized by prison au-
thorities for purposes of classification and treatment. A
copy of the probation oflicer’s report can perform useful
service in the determination of the desirability of pardon
and parole. And whether the offender becomes a proba-
tioner or a prisoner, social agencies which may be called
upon to assist him or his dependents will find in the report
of probation investigations information of practical value
to them.

As in the earliest days of probation, however, the chief
function of the investigation conducted by probation oflicers

mSullivan, Principles and Values in Case Recording, Yearbook, Nat. Prob.
Ass’n (1936) 240, 244.

139

remains that of placing before the judge information which
will assist him to reach a proper decision in each case. It
was the conclusion of the report of the Wickersham Com-
mission that, “adequate sentence by the court is more likely
to be achieved if a complete history of the individual is
placed before it,” 93 and the Commission quoted with ap-
proval the opinion expressed by the New York Crime Com-
mission in 1927: “The conclusion seems warranted that on
right investigation depends right sentencing in important
cases, and on right sentencing depends the effectiveness of
he whole process of criminal prosecution itself.” 94
Minimum eligibility requirements in all probation stat-
tes demand that the question of probationary release be
etermined on an appraisal by the court of the mitigating
ircumstances surrounding the offense, the hope of reform
n the offender and the possibility of danger or safety to
ociety and the community.95 Courts are not qualified to
ake such an appraisal except on the basis of adequate
formation impartially collected for them and presented
0 them in an unbiased manner. In jury cases the rules of
vidence will enforce appreciable limitations on the type
nd amount of information which the judge may elicit from
itnesses.96 Where a plea of guilty has been accepted even
8 information will be atthe court’s disposal.
To fulfill the statutory duty, however, it is incumbent
pon the court to make some estimate of the defendant’s
aracter, situation, and tendencies. The judge who is con-
ious of the social implications of probation desires to
ake this form of treatment available only to those who
n reasonably be expected to benefit by it. He may already
ve formed some. opinion of his own as to the likelihood
the defendant’s success, but if he is wise and conscientious
his duty he will be wary of taking action until he has
his disposal facts to support his decision.

”Penal Institutions, Probation and Parole (1931) 157, Report No. 9 of the
tional Commission on Law Observance and Enforcement.

94Report of the Crime Commission (1927) 272 (N. Y. Legis. Doc. 94).

95 See ante ch. IV.

9° “That is, the case history placed before the court by the probation officer
bringing into the records a body of information which may not be other-
se admitted.” Penal Institutions, Probation and Parole, loo. cit. supra
te 93.

140

In the words of Judge Ulman: “In the modern techn
of probation * * * the first essential step is the rig
careful selection of probation material. Every case is po
tially a case for probation. But in no case should proba
be used until a thorough investigation by skilled 8
workers has convinced the judge that the human entity
stands before him, convicted of crime is reasonably li
to respond favorably to that form of treatment * . *
The result of such study may merely confirm and stren
the courtroom impression obtained by the judge during
trial. It may, on the other hand, utterly negative
impression.” 9"

When courts grant probation Without any certain kn
edge as to the history, character, and habits of the often
probation becomes worse than leniency.98 Subsequent
forts on the part of the probation officer will be wa
where the subject with whom he is attempting to de
unfitted by reason of mental defects or fixed antis
habits to respond to any kind of salutary suggestion 0
follow steadily a constructive program of rehabilita
In Cooley’s opinion, “As a direct result of the blunde
unscientific preliminary investigations in vogue in
courts, unsuitable persons are placed on probation and
probation officer has added to his own deficiencies an
the problems arising from his lack of equipment the fur
difliculty of attempting to reconstruct material for w
the probation process is totally unsuited. In courts w
mental and physical examinations are not made, the fe
minded with fixed antisocial habits, the diseased, the
addict, and the emotionally unbalanced are undoubt
placed on probation when there are no facilities avail
to the probation officer for their proper treatment. U
such conditions as these it is not to be wondered that
bation results in failure.” 99

Only by actual inquiry into the facts of an offender’s
can the authorities know something about what made hi

 

9“ Ulman. Public Opinion and Judges’ Attitudes, Yearbook, Nat. Prob.
(1932—33) 57, 60.

mChute, The Development of Probation in the United States in G1
Probation and Criminal Justice (1933) 225, 237.

9"Cooley, Probation and Delinquency (1927) 29.

141
criminal and what the chances are of making him anything
different.1°° “The rehabilitative potentialities of the individ-
uals placed on probation are major factors in determining
the success or failure of probation treatment, and the pro-
bation officer and the court have a responsibility to the com-
munity to choose with discrimination the candidates for
robation.” “’1
' “The study of the individual is necessary to know in what J
ocial situation he is most likely to make an adjustment, as
ell as to discover which individual will succeed on proba—
ion.” 102 The investigation made by the probation officer is
ignificant not only with respect to the question of eligibility /
ut also with respect to What may be done after release.
ome knowledge of the environment into which he is re-
urning the offender will enable the judge to prescribe con-
itions of a constructive as well as a deterrent nature. For
e probation officer, data secured on investigation serve as
basis for initiating treatment and for further inquiry into
e factors which are necessary to the complete understanding
f the probationer’s problems and situation.”3 Treatment
ould always be based on actual needs and these can only be
ought to light by thorough examination of the probationer,
's surroundings, family, and circumstances.
The investigation is not made entirely for the court. “The
urt happens to be the first agency to use the information,
t many other agencies, particularly the probation depart- ..
ent, the correctional institution, the parole department,
d other public or private welfare societies, who may later
called upon to give specialized services, need and have a
orht to the preliminary investigation in their treatment
ograms.” 10“ If the offender is sentenced to serve a term in
ison “the matter of his parole plans can be more easily
rked out because the probation officer can make available

0°Barnes, Punishment or Treatment for Criminals! Yearbook, Nat. Prob.
s’n (1932-33), 1, 4.

°1 Sullivan, loc. cit. supra, note 92.

02Brown. Social Causes and Cures for Delinquency, Yearbook, Nat. Prob.
’n. (1930) 9, 21.

°3 See Sullivan supra, note 92, at 245.

0‘ Sullivan, supra note 92, at 247.

142

to the prison and the parole board all the information he
has gathered for the Court.” 105 *

Time when investigation should be made—If the data
secured on investigation has its primary importance in rela-
tion to the selective process, it is axiomatic that only in-
vestigations conducted prior to the pronouncement of sen-
tence can exert any influence in this respect. Statutes re-
quire investigation preliminary to the determination of the
question of sentence or probation in only a few States.
But the opinion that probation initiated without an ade-
quate inquiry into the history of the candidate will fre-
quently result in a complete failure to rehabilitate has long
been held by probation leaders and workers.106

Writing in 1924, Sutherland said that the “laws of most
States require that before an offender be placed on proba-
tion an investigation of his character and conditions be
made and the results submitted to the judge.” 1‘" As has
already been pointed out, in only a few States do the pres-
ent statutes expressly make such a requirement.103 In many
jurisdictions the requirement may be assumed to be incor-
porated in the law by implication.109 Sutherland, however,
pointed out that as a matter of fact “many judges do not
wait for this investigation, even when the laws require that
they do so.” 11° (Certainly in many instances “the prelimi-
nary investigations by which judges are guided are frequently
inadequate and rather perfunctory.” 111

Where adequate investigations are made and the facts
presented to the judge before he makes final judgment in

105 Upton, Supervision of Federal Probationers in Northern California, Pacific
Coast International (Nov. 1937) 34.

10° See Bolster, Adult Probation, Parole and Suspended Sentence (1910) 1
J. Crim. L. 438, 440, 444; Chute, The Progress of Probation and Social
Treatment in the Courts (1933) 24 J. Crim. L. 60, 70; Hughes, Probation
Progress, Yearbook, Nat. Prob. Ass’n (1932—33) 259, 264; Penal Institutions,
Probation and Parole (1931) 194, Report No. 9 of the National Commission
on Law Observance and Enforcement; Cooley, Probation and Delinquency
(1927) 29, 438, 439; Sullivan, Principles and Values in Case Recording,
Yearbook, Nat. Prob. Ass’n (1936) 240, 244; Chute, The Development of
Probation in the United States in Glucck, Probation and Criminal Justice
(1933) 225, 238.

10" Sutherland, Criminology (1924) 564.

103 See ante, pp. 127-128.

109 See ante, passim.

11° Sutherland, loo. cit. supra note 107.

111 Penal Institutions, Probation and Parole, op. cit. supra note 93, at 194.

143

the case, his disposition of the defendant will be less a
matter of guesswork, and in relation to the thoroughness
f the investigation, more a matter of exact knowledge.112
In answer to a questionnaire recently sent out by Chute,
eplies from 28 States indicated that the chief function of
probation department in any community was to do “a
ood piece of work for the court,” that is, to make careful .
ocial investigations to assist in determining the best treat-
ent for as many cases as possible.113
The device of presentence investigation is one of the.
ajor contributions of probation to the administration of
riminal justice. Gradually, the realization has come that
e presentence investigation has implications far beyond
3 mere determination of the question of granting release
nder supervision. The Wickersham Commission saw in
is technique “a contribution toward socializing court
ethodology * * * of great value for the future.” 11“
ne writer believes that “no court should ever undertake
e disposition of an offender without being fully advised
rough an investigation concerning his antecedents, en-
ronment, and personality, including his physical and men-
1 condition. Only when these facts are correctly presented
11 the court act intelligently and constructively.” 11‘
One of the recommendations of the 1927 New York crime
mission was that there be a wiser selection of persons
aced on probation aided by a complete investigation be-
e sentence.116 If, in Judge Ulman’s words, “the first
ential step is the rigidly careful selection of probation
terial,” 1” obviously investigations must be completed be-
e the material is culled. Data to be considered later in
'3 report lead to the conclusion that the use of presen-
ce investigation to determine the feasibility of probation
he exception rather than the rule.118

‘See Ferris, The Case History in Probation Service in Glueck, Probation
Criminal Justice (1933) 135, 145.

3 Chute, Probation in a Community Social Welfare Program, Yearbook, Nat.
b. Ass’n (1932—33) 20, 22.

4Penal Institutions, Probation and Parole, op. cit. supra note 93, at 157.
5 Smyth, Organizing a County Probation Department, Yearbook, Nat. Prob.
’n (1931) 91 et seq. See also Barnes, supra note 100 passim.

6Report of the Crime Commission (1927) 251, 275 (N. Y. Legis. Doc. 94).
7Supra note 97.

8 See post ch. VI.

144

Many factors contribute to the existence of this condition;
among them the lack of judicial understanding of probation
in general. But in many cases the direct cause of the fail-
ure to utilize presentence investigation in the determination
of eligibility, is the court’s resentment of the concomitant
delay in disposing of the case which prosecution of investi-
gation demands. It is natural that courts should desire
to dispose of cases with all possible dispatch. Proper inves-
tigation requires time in which to check all available
’ sources of information. Statutes do not as a rule set any
maximum or minimum limits on the time which may be
allowed to carry out a preliminary inquiry.119

Perhaps a statutory provision setting a minimum period
which must elapse between the application for probation
and the court’s determination of the question would in some
measure prevent judges from disposing of such cases hastily
and summarily. Such a provision would at least give the
probation officer opportunity to collect some data for the
court’s consideration. Since at present no minimum period
has been set, impatient courts often grant release without
notification to the officer that the question is pending.

Actually the time required for a thoroughgoing investiga-
tion is not so long as to cause serious delay or congestion
in the dispatch of court business. Most authorities agree
on a period of 1 week to 10 days as adequate.120 “The
time will vary according to the size of the community, the
case load of the probation officer, and the nature of the prob-
lem.” 121 In any event investigations cannot be handled over-
night by the probation department or officer. Many sources
must be investigated, and a sufficient period should be al-
lowed for clearance of the case through the social service
exchange. “Certainly the more time allowed for collecting,
correlating, and interpreting available social data, the more
adequate and therefore the more useful will the preliminary
investigation be.” 122 But in order that the information

119 Supra p. 135, notes 77. 78.

12° See Ulman, loo. cit. supra note 97.

121 Sullivan, supra note 92, at 246. This author suggests a minimum period
of from 1 to 2 weeks.

122Ibid.

145

hich the probation officer must supply the judge may not
e fragmentary, misleading, or vague, sufficient time for- in-
estigation must be provided during the continuance of the
ase by the court.123
A practical consideration often obtrudes itself at this
oint. What is to be done with the offender while the court
3 awaiting the results of the investigation? Obviously, the
ourt must hesitate to grant an interval of complete freedom
hile the inquiry is in progress. The offender already
ands convicted of antisocial conduct for which the officer’s
eport may recommend imprisonment. If the ofiicer’s re-
ort is favorable to release on probation many judges con—
der it unfair to retain a defendant in custody during the
terim of investigation. Where an offender can furnish
il this problem does not assume much importance. That
e longer detention of offenders in jail which the making
thorough presentence investigation demands may some-
es be beneficial is the opinion of at least one judge : 124
My own belief is that, in the great run of cases, this week
or 10 days [during the time the investigation is being made]
is most advantageously spent by the offender in jail. I know
that there may be vigorous differences of opinion on this point.
A great deal depends upon the jail which is available for the
purpose. * * * There is not much likelihood that a week in
jail will break their [young offenders’] spirits or educate them
in the ways of crime and criminals. But it will, and I believe
it does, impress upon them and upon their families, the serious-
ness of the whole situation. It tends to make them realize that
being put on probation is part of a serious plan for their re-
habilitation; and by giving them a taste of the nature of incar-
ceration, it instills in them.a wholesome dread of the conse-
quences of a violation of the order of probation.
hat this practice'must not be followed blindly in all
es need not be pointed out. Certainly the practice is
t regarded with favor by all social workers. “Incarcera-
n of a potential probationer between trial and disposition
uld be avoided whenever possible. Its dangers far out-
igh any benefits.” 124“ If continued incarceration will

3 Glueck, Probation and Criminal Justice (1933) 3, 16.
4 Ulman, supra note 97, at 60.
81 Sullivan, supra note 92, at 246.

146

result in loss of employment for the offender his social
situation will only be complicated by~such procedure.”‘5 In
several courts throughout the country, however, the device
is used in order to impress the prospective probationer with
the gravity of his situation.126

Just as information gathered on presentence investiga-
tion is valuable for many purposes apart from the actual
grant or denial of probation, so investigation carried on
after the offender has been released to the probation ofiicer
will find many uses. While the better practice demands
complete and accurate investigation before release, it must
not be supposed that postsentence investigation will be
utterly valueless. As the period of supervision progresses
new problems will arise from time to time which will require
additional facts for their proper interpretation. Increased
contact with the probationer and his environment may re-
veal to the officer hitherto untapped sources of information.

Moreover, where probation has been granted hastily and
without any preliminary inquiry, it will be incumbent upon
the oflicer to make some examination of the defendant’s
character, history and present situation before he can under-
take any affirmative program of rehabilitation. Some
diagnosis is essential and inevitable sooner or later if there
is to be any active supervision of the case. For these rea-
sons investigations made after sentence are important. Al-
though belated they cannot fail to throw some light on the
problems confronting the officer in dealing with his charge.

By whom should the investigation be made?——Probation ~
demands a specialized kind of investigation. Actually, this
investigation amounts to the compilation of a social case
history of a particular type. It requires, on the part of the a.
compiler, the ability to select from a mass of details and iso-
lated incidents phenomena significant for an understanding
of the defendant, and further, the ability to assimilate the
data collected so that a clear and concise picture of the de-
fendant, the causes of his difficulties and distress and the
influences in his surroundings and life which give‘hope for
improvement will emerge.

1251bid.
12° See post, ch. VI.

147

Probation compels the court through its investigation “to v
earch into the background of the individual, his relation
ith the world as a whole. Questions of the most intimate
nd personal sort are asked. Why did he become acriminal?
hat can be done about setting his steps right in the world
gain? Is it a personality difliculty subject to correction?
s it a family difficulty? Is it a physical deformity, occu-
ational maladjustment, or some combination of these?
Vhat is the man’s previous history, not necessarily as a law-
reaker, but as a human being?” 127 To secure and assemble
ccurate answers to these and many other questions is the
sk of the investigator. It is not an assignment that can
fely be entrusted to amateurs. Delicate situations must be
andled; material collected must be sifted and selected;
rsonality and character judgments must be formed.
nly persons trained in the technique of social work can be
pended upon to perform this service with consistent satis-
ction to the courts and the supervising officers who must
bsequently make use of the information supplied.
In far too many courts this important phase of the proba- ,
n procedure is entrusted to peace ofiicers or to regular
embers of the court staff. vThe faults inherent in the prac-
of utilizing law enforcement officers for this purpose
ve been pointed out many times. Leaders in probation
rk have consistently objected to it. However, because of
inadequate number of local probation officers it is often
possible for courts to obtain any investigation at all
ess the task is assigned to detectives, the sheriff, or the
lice.
he first important objection to the use of peace oflicers w
an investigative capacity for probation purposes is that
ost universally they lack the proper training to do the
well. “In the investigation bureau of Kings County,
ere county detectives do the investigating, adequate con-
tion of what social history meant was not evident. One
ht search the records in vain for any such thing.” 128
0nd, in spite of whatever ability they may possess in
s direction, by the very nature of their position as a part

Penal Institutions, Probation and Parole, op. cit. supra note 93, at 156.
Report of the Crime Commission (1927) 251, 257 (N. Y. Legis. Doc. 94).

148

of the law enforcement agency, they are disqualified from
establishing a proper confidential ‘relationship with the
offender and others from whom they hope to gain the neces-
sary information. The offender’s “attitude concerning the
probation officer must be such that he can be studied.” 129 As
a part of the probation investigation “the offender’s delin-
quency and criminal record should be carefully compiled
* * *. The primary purpose of this information is not
to assist the court in prosecuting the offender as an habitual
criminal but to understand him in his reactions to society
and his conceptions of society.” 13° But it will be very hard
to convince the defendant, his family, and friends that this
information is not being elicited for the purpose of subject-
ing him to further prosecution, when the inquirer is well
known to the parties as an arresting officer. Moreover, the
temptation to the oflicer to make nonprobationary uses of
the information thus secured must be great.

The use of law enforcement officers in probation work
must not, however, receive wholesale condemnation. Cer-
tainly where no other agency is available for investigative
work, it is better practice for judges to employ peace officers
for this purpose than to have no investigation made at all.
The officer should be able to bring together some facts for
the court’s guidance.

Peace officers can temporarily perform a real service for
probation but‘their services should be dispensed with as soon
as the services of a full-time, properly trained probation
officer are available. It must be remembered that those who
serve the community in a police capacity must devote their
major efforts to their law enforcing duties; probation work
for them will always remain incidental and of minor
importance.

The logical person to make the investigation is the pro-
bation officer, especially when that officer comes to his task
with thorough training in the technique of social work and
probation practices. The necessity for skill in handling in-
vestigation has been emphasized by many writers in the

1”Brown, 100. cit. supra, note 102.
13° Ferris, op. cit. supra, not? 112. at 148.

149

field."-‘”"1 “It takes a trained person to get the right elements
f a social history and to rightly record them.” 132
Since the early days of probation, investigation has been J
assumed to be one of the most important functions of pro-
ation officers.133 The development of new techniques in the
nvestigation, the information on specialized subjects now
emanded from the inquiry, have made of investigation a
rocedure in which the employment of specialists is essen-
ial.134 The investigator must be alert to utilize the variety
f new sources of information which were not available a
uarter of a century ago. He must know, not only what to u
ok for, but where to look for it. “Sutherland has suggested
at “it would be preferable to have special investigators for
is purpose.” 135 In all jurisdictions where probation serv-
e is well organized and effective the probation officer does
e investigating.
It has been further suggested, that since probation investiaa,
ations are “utilized not only by probation Officers but by i
stitutions and parole officers,” 136 this service should be “a ‘
rt of the court machinery and not at all a part of proba-
n.” 137 In other words, the probation officer should be ex-
cted to perform no duties other than those connected with
ervision for probation is complicated by “having its
nction enlarged to include investigation.” 138 It was the
inion of Miss Hoey, who made this suggestion, that
estigation should be a part of the court machinery at
disposal of the judge for the examination of any and
cases regardless of the type of treatment contemplated

1See Ulman, Public Opinion and Judges’ Attitudes, Yearbook, Nat. Prob.
‘11 (1932-33) 57, 60; Hughes, Probation Progress, id. at 259, 264; Ferris
Case History in Probation Service in Glueck, Probation and Criminal
tice (1933) 135; Robinson, Penology in the United States (1922) 202;
art of the Crime Commission (1927) 251, 258 (N. Y. Legis. Doc. 94);
te, The Development of Probation in the United States in Glueck, Pro
'On and Criminal Justice (1933) 225, 237.

2Report of the Crime Commission, 100. cit. supra note 131.

Bolster. supra note 106 at 440; Chute, The Progress of Probation and
'al Treatment in the Courts (1933) 24 J. Crim. L. 60, 61.

Barnes, supra note 100, at 3.

Sutherland, Criminology (1924) 565.

6Proceedings Governor’s Conference on Crime, the Criminal and Society
Y. 1935) 98].

Ibid.

Ibid.

150

by the court.”9 Sentencing practices in the courts hav
as yet reached the high level anticipated by such a plan.
vestigation is as yet seldom undertaken where there is
some likelihood that probation will be a proper dispos
the case in question. Data secured from investigation is
used primarily by probation officers and departmen
handling probation cases. The general opinion among t
with the greatest experience in probation work is tha
functions of investigation and supervision should not
be delegated to separate ofiicers, much less to sep
' agencies.”10

Some disadvantages in combining the two functio
one officer have been pointed out by authorities on the
ject. It has been said that modern technique require
reports of medical men, psychiatrists, and psychologist
well as those of social workers to present a complete pi
of the offender, and that the probation officer cannot
cessfully make such studies.141 In almost all the juri
tions where there is any attempt to conduct medical,
chological, and psychiatric examinations, clinics are e
lished for this purpose and their reports are uti
by the officer in his report.142 It cannot be expected
many investigators combining the scientific training of
tor, psychologist, psychiatrist, and social worker wi
available. Nor is it necessary that they should be, solo
clinical examinations are at the disposal of the prob
department.

An objection of more merit is that “the probation ofli
likely to be handicapped later in dealing with probati
if he makes the investigations, for the investigator wi
regarded as a detective.” 1‘13 However, a competent and
erly trained oflicer will know how to secure information
conduct interviews, without arousing suspicion and
trust in the offender. Very often a preprobation inter
with the subject by the officer will be instrumental in
ing the offender’s confidence, allaying his fears and e

13°Ibid.

14° Report of the Crime Commission, 100. cit. supra note 131.
1‘1 Sutherland, Criminology (1924) 565.

141’ See ch. VI.

1‘3 Sutherland, loo. cit. supra. note 141.

151

lishing a relation. between the officer and the probationer
which will be of infinite assistance during subsequent super-
ision. In fact, “most probation oflicers wish * * * to
ake their own investigations, insisting that by doing so
hey are in a much better position to supervise the individual
hen placed on probation.” ‘44 In the course of the investi-
ation the officer may learn many facts, not significant
nough to be included in his formal written report, but
hich when recalled later may furnish valuable clues and
planations of the defendant’s actions on supervision. “The
elation between investigation and supervision is intimate
nd important and the sort of training that makes a good
robation oflicer is the sort of training that can best supply
e kind of investigation needed to make a success of proba-
on as well as the most enlightened sort of sentence.” 145
In large well-organized probation departments there is
me division of labor among probation officers.”6 The
port of the 1927 New York crime commission disclosed
at out of 52 probation oflicers questioned, 34 replied that
ey did both investigation and supervision. These 34
cers “represented not only many probation officers work-
g alone in their communities, who would of necessity
ve to combine both functions, but also some larger units
ere it might have been possible to assign some to super-
ion and some to investigation, according to which indi-
ual probation ofiicers possessed the qualities needful in
e or the other pursuit.” 1“ Eleven replies stated that
estigation is done by separate officers, “either by proba-
n officers assigned to it or by others, such as county de-
tives, special investigators.” 143 In New York, even where
two functions are‘ divided, it is the custom “to have the
estigation done by persons under the probation head, so
t he may have the direction of both investigation and
ervision.” 14"

Robinson, Penology in the United States (1922) 202.

5 Report of the Crime Commission, lac. cit. supra note 131.
Robinson, 100. cit. supra note 144.

7 Report of the Crime Commission, 100. oft. supra note 131.
Ibid.

Ibid.

73115—39—von. 11—11

152

Where there is a large staff, persons showing special apti-
tude for investigation should be given that sort of wor .150
It is conceivable that an invaluable investigator may prove
a very poor supervisor. Conversely, the oflicer whose tact,
vision, and personality render him highly successful in con-
tacting and guiding probationers during supervision may
not feel the same interest or possess comparable skill as a
collector of social data. Training in social case work, how-
ever, is fundamental'for both investigators and supervisors.151

Who should be inoostz’gated?—The investigation of all
persons convicted of crime is necessary if probation is to
serve society with maximum effectiveness. It was the hope
of those who worked for Nation-wide extension of probation
that investigations by probation officers would not be limited
to those cases in which probation seemed to be the obvious
form of treatment but that it would be applied also to cases
where the feasibility of probation seemed doubtful.152

Various practical considerations have prevented the reali-
zation of this hope. “Obviously, unless many more proba-
tion officers and judges are appointed, all persons who
appear before the courts cannot be thoroughly investi-
gated.” 153 In theory, “every case is potentially a case for
probation.” 154 It is not at all unlikely that many defend-
ants receive prison terms because they seem to be hardened
offenders or hopeless risks, when a searching investigation
might disclose in them as great possibilities for success on
probation as in those receiving probation consideration.
Moreover, in borderline cases, “which are not obviously fit
or unfit, the actual decision must rest upon an appraisal of
the subject’s moral character. The basis for such a- judg-
ment can only be disclosed by painstaking study.” 155 “Pro-
bation is in essence a method of individualization.” 15" and
accurate judgment of individuals can be made only with rel-

150 Ibid.

151Ibid.

15’ Bolster, Adult Probation, Parole and Suspended Sentence (1910) 1 J,
Crim. L. 438, 448.

153 Glueck, Probation and Criminal Justice (1988) 8, 15.

154 Ulman, loo. cit. supra note 97.

155 Hughes, Probation Progress, YearbOOk, Nat. Prob. Ass’n (1932-33) 259.
264.

15“ Penal Institutions, Probation and Parole, loo. cit. supra note 93.

153

atively complete knowledge of the individual and the in-
fluences at work upon him. There is no doubt that so long
as investigation is not universal for all offenders'probation
itself can never realize its full potentialities. Many really
treatable offenders will be condemned to imprisonment
without any consideration of the possibility of probation for
them. In current probation practice, with the exception of a.
small number of progressive courts, few investigations of
probation potentialities are ever made unless some hopeful
factors in the defendant’s personality, environment, and life
are already apparent to suggest that a time-consuming inves-
tigation may prove worth-while.

It must not be supposed that defendants will, of their own
initiative, see to it that they receive probation consideration
by making application for this type of release. Many con-
victed offenders, especially those never before in conflict
with the criminal law, have not heard of probation and
therefore do not realize that there is any way out of their
difficulty other than service of a term of imprisonment.
Until all offenders are subjected to the investigative process,
an element of guesswork will remain in the selective process
even though no person may ever be granted probation until
he has been thoroughly investigated.

As Glueck has pointed out, to conduct an adequate inves-,
tigation of all offenders would require an enormous enlarge-y:g
ment of the personnel of the bench and of probation
departments.157 “On the one hand, if the entire theory of
probation is sound, then cases to be thoroughly investigated
should be chosen, not on the basis of crimes committed, but
on that of persons Committing. them; on the other hand,
without quite an intensive preliminary investigation, it is
difficult to determine which defendants should be thoroughly
investigated.” 153 Glueck proposes an answer to the dilemma:
“The best way to work out a policy in regard to this matter
would be to make a test—to investigate thoroughly every
convicted defendant over a sufficient period and thereby
determine which classes of cases might safely be handled
with an extensive investigation, and which need an inten-

157 Glueck, lac. cit. supra note 153.
1581bid.

154

sive. Failing that, we are forced to a classification on
basis of crimes rather than criminals.” “‘9

If the idea], i. e., “intensive” examination of all ofien
is not yet possible of achievement, can the investig
process operate at all effectively on any other basis?
suggestion that has been advanced is that “all felony
should be investigated prior to the imposition of sentence
This is a statutory requirement in some States.161 The
some merit in the suggestion since it would include a maj
of the cases before courts of general criminal jurisdic
Here, however, the same practical difficulties already outl
would be encountered. If such examinations were t
adequate, a great increase in personnel would be neces
Too many cases would have to be handled. Moreover
division of crimes into “felonies” and “misdemeanors”
ceased to be very meaningful as a measure of the cr'
tendencies of the offender.

Sheldon Glueck has a suggestion in regard to a pos
classification with respect to the sort of presentence in
gation convicted offenders should receive,162 a classific
based on the crime. In this classification the follo
would be “intensively” investigated:

“(1) Defendants who have committed the tradit
criminal offenses (larceny, burglary, robbery, rape, etc.)
“(2) Those guilty of domestic relations offenses (

tion, nonsupport, etc.) ;

“(3) Drunkards who have families to support.” 163
Glueck points out that “the last group are so recidi
that the original intensive investigation can be foll
by less intensive subsequent check-ups.” “4

Actually, is any classification at present necessary,
admitting that it is a physical impossibility to inves
all persons convicted of crime? The benefits- of unit
investigation would undoubtedly be great, for it cann
denied that such a practice would exert a major infl

159Ibid.

10° Proceedings Governor’s Conference on Crime, the Criminal and
(N. Y., 1935) 84.

101 See ante, p 128.

1” Glueck, op. cit. supra note 153, at 15—16.

103 Ibid.

“4 Ibfd.

155

pon the development of sentencing practices and inev-
ably upon the whole problem of crime.
But for probation in its present state it is infinitely more
portant to make certain that those chosen for this treatment

e worthy than to lament lost opportunities. The Wicker- ~
am Commission emphasized the “careful investigation of

l offenders before they are placed on probation” as one
the necessary standards of probation,165 and pointed out :

at one of the main respects in which probation had
llen short of its possibilities was the inadequacy and per-
nctory character of the presentence investigations by
'ch judges are guided.166 It is useless to plan for the
estigation of all criminals when vast numbers of per-
s are being released all over the national without any
bation investigation at all.167 “The preliminary investi-I
tion is the major tool for sifting the intake of the pro«
ion department. The more thoroughly it is made and
orded the more surely will probation be restricted to that
e of individual whom it is equipped to serve.” 1“
ome oifenders will undoubtedly be released on probation.
e consideration of most immediate importance for society
for probation itself is that, no matter how unscientific
method of choosing offenders for investigation may be,
erson be sent back to the community until the results of a
rough investigation have cenvinced the court that his
ase will not endanger society. The practice of the Fed-
probation officers in Massachusetts has yet to be approxi-
ed on a nation-wide scale. There, in the fiscal year
6, all persons granted probation were subjected to
robation investigations.169 Probation may be summarily
ied and no harm done to probation itself. But probation
artments are bound to suffer loss of prestige and public
dence when they are forced to deal with subjects for
ch probation treatment is entirely unsuitable.

Penal Institutions, Probation and Parole, op. cit. supra note 93, at 189

ics supplied].

Id. at 194.

See post, ch. VI.

Sullivan, supra note 92, at 244.

See table II, ch. VI for the extent of presentence investigation of Federal
tioners by judicial district for the fiscal year 1935—36.

.. “1......— m

156

i‘It is the responsibility of every court to grant no p

tionary release until an adequate investigation has con °
it of the amenability of the offender to the contemp
treatment. A court may decide by looking at an ofie
that probation will not do for him; this will not afi'ec
probation department. Cursory examination of an
may convince the judge that he is confronted with an
opportunity to apply probation. But no court should
act on this private conviction and grant release unti
independent and adequate investigation has furnished
to confirm the wisdom of the court’s initial opinion.
, Therefore, the immediate need is not for some scie
‘ yardstick which assures the investigation of all ofi'e
for whom probation may be proper treatment, but f
realization on the part of courts that probation gra
Without an investigation is, in many cases, guesswork
outright leniency masquerading under another name.

SCOPE AND METHODS OF THE INVESTIGATION FO
PROBATION

In general—What are the essentials of an
quate preprobation investigation? “The purpo
,"this investigation is to learn the character and a
’of the person under consideration, the influences
surround him and those that may be brought to
in the event of probation.” 17° The offender mus
understood “in relation to his total situation, in
that he may be dealt with according to his parti
needs, capacities, nd limitations rather than 011 the
basis of his ofi'ensezi’m1 \__The defendant’s “personal his
education, early life, family and neighborhood condi
employment, history, recreation, habits and associate
ligious Observances and training” ”2 are all matters of si
cance for probation. Medical examination may reveal
ease and disabilities which will assist in explaining
offender’s present situation and in forming an accurate
mate of the handicaps which he faces. The relatively r

17° Quoted in Bolster, supra note 152, at 444.
"1 Sullivan, loo. cit. supra note 121.
1" Report of the Crime Commission, op. cit. supra note 131, at 272.

157

development of psychiatry and applied psychology have
pened up new fields of inquiry.173 The existence of social
service agencies with permanent record-keeping facilities

ay further broaden the scope of the investigation 1“ and
utilization of the service which they offer may throw fur-
her light upon the defendant and his problem.

The offender’s criminal record and his behavior as a con- "

,'ct "5 must also be considered. It is Sutherland’s conclu-
ion that, in order to determine general fitness for probation,
t is necessary to take into consideration the health, mental
bility, mental balance, industrial capacity, state of the labor
arket, temperament, attitudes, and group relations.176
Whatever throws light on the offender’s heredity, environ-
ent, character, and activities is pertinent to the investiga-
°on; for what the investigation seeks is a full understanding
f the offender from the point of view of his possible re-
tegration in society as a self- sufficient and permanently
seful member. 1"
A complete investigation for probation purposes involves
ur procedures. ”8 The criminal a
ust be ascertained from court and police records and
entification agencies. isofialflpicture of the prospective
obationer, including his social history7 and present con-
tion must be formed, based first of all on information
pplied by the defendant himself. ClinimLexaminations
ust be utilized accurately to evaluate his physical condi-
n and mental state. Finally comes a process which Fer-
calls, for convenience, “verification,” 17" but which might
called, with equal convenience and accuracy, ‘fa com—
it examinationa” since it seeks the information and
dgment of Wthose among whom the defendant has lived
d worked, as to his character, habits, and circumstances,
(1 affords as well the opportunity for the investigator to

 

7‘ See Chute, supra note 106, at 62.
“See Sullivan, loo. cit. supra note 121.
7‘ Barnes, loo. cit. supra note 100.
7° Sutherland, op. cit, supra note 107 at 566; see also Ulman, supra note 97,
0; Hughes, supra note 106, at 264.
Ferris, The Case History in Probation Service in Glueck, Probation and
‘nal JustiCe (1933) 135, 140.
Id. at 140-149.
“Id. at 145.

158

form first-hand conclusions as to the factors surrounding the
case. i

UMminal and delinquency record—A compilation of the
defendant’s criminal record should perhaps be the first step
in the presentence investigative process. It should come
first, not because of its overwhelming importance as a social
factor, but because eligibility statutes in many States make
the defendant’s record a conclusive consideration.180 If the
defendant’s record is such that he cannot receive probation-
ary release under the laws of the jurisdiction, investigation
will terminate at this point. Of course, further investiga-
tion would be an important aid to the court in making a
proper disposition of the case, even though probationary
treatment were legally impossible. However, since the pri-
mary purpose of an investigation is to enable the court to
make an intelligent choice between probation and other
treatment, it follows that the primary purpose is not
achieved when the prospect of probation is precluded by law.

Considering the many eligibility restrictions in current
statutes based on the prior criminal record of the applicant,
and the lack of suflicient personnel to permit investigation
of all cases, it would be wasteful of the oflicer to consume
his time and energy investigating more socially relevant
matters only to discover that probation will not be possible
for the offender because of previous conviction of felony or
imprisonment for crime. Certainly, too, in courts “operating
in States where definite sentences are mandatory for certain
offenses, it is essential that special attention be given in the
preliminary investigation to the nature, results, and extenu-
ating circumstances of the immediate as well as previous
offenses. In such courts the offense, by law, may take preced-
ence over other interests in determining disposition.” 181

The aim in securing an accurate delinquency history of
the subject is not, however, solely that of compliance with
eligibility restrictions in the statutes. Nor is the purpose of
this information to assist law enforcement officers to prose-
cute the defendant as an habitual criminal. An accurate
account of the present offense secured from the police, the

15° See ante, ch. IV.
181Sullivan, supra note 92, at 245.

159

mplainant, and others, may reveal some of the more im-
ediate reasons for the subject’s present predicament. “De-
inquency or criminality, like any other pattern of behavior,
3 an adjustment to a social situation * * *. Wherever
ne finds a delinquent or a criminal, he finds a delinquent
r criminal social situation.” 13? A knowledge of the history
nd extent of the defendant’s criminality will reveal to
ome degree how set the behavior pattern has become and
ay at least partially show the character of his social
tuation.
If this phase of the investigation does not stop with
ere ascertainment of the fact and amount of previous con-
'ctions and imprisonment but seeks an account of the de-
ndant’s behavior and attitude while in custody, the re-
lts will be even more significant for probation purposes.
f particular importance, if the offender was previously
probation, are his behavior and reactions to probation,
d such causal factors of his success or failure on probation
may be noted.” 183 It was the opinion of the 1927 New
ork Crime Commission that “it would be a serious mistake
ever destroy children’s probation records in the idea of
otecting the child. They can be kept secret, but when
e child offends subsequently in adult life they should be
ailable.” 184
n compiling the criminal record of the offender a number
sources and agencies may be utilized. For this purpose
offender himself may furnish some facts but he cannot
regarded as an altogether reliable or willing source of
ormation. A natural fear of the uses to which this in-
mation may be put will render him uncommunicative.185
re trustworthy sources for obtaining these data will be
ice and court records, both local and out of town. When
se records reveal that the defendant has been previously
risoned, the institutions which have had him in their
rge should be contacted.
ocia‘l agencies which have performed services for the
nder or his family will have preserved rather accurate

Brown, supra note 102, at 10.

Ferris, op. cit. supra note 177, at 149.

Report of the Crime Commission, op. cit. supra note 131, at 258.
Ferris, op. cit. supra note 177, at 148.

T‘
‘,

160

accounts of his history which may include some record of
past delinquencies. Clearance with social service exchanges.
and a follow—up of registrations disclosed is an important
part of the investigative process 18“ both for information it
may furnish as to this phase of the investigation and as to
later phases. One writer believes that this should be the
initial step in the process of inquiry.187 In any event, it is
an essential step and Glueck states that “there is little
justification * * * for failing to utilize the social serv-
ice index and social welfare agencies.” 188

Local and State bureaus of identification can furnish the
officer valuable leads in his search for the offender’s criminal
record. The excellent identification service offered by the
Federal Bureau of Investigation will be of invaluable serv-
ice to the probation officer in the attempt to compile a com-
plete criminal record of an offender whose criminal career
may not have been confined to a particular State or locality.
Unless the officer employs all the available services he can-
not be sure that his compilation will not be fragmentary
and misleading.

Social emminatz'on.——“The investigator’s primary tool is
the interview, the other tools, such as the physical and
psychiatric examinations and the processes of verification,
being ancillary. A well-ordered and properly conducted
personal‘ interview with the offender often yields more clues
to an understanding of him in history, habits, and tendencies
than all the other processes of investigation.” “39 -

The interview is important not only for the information
which it furnishes the officer but for the opportunity it
gives him to establish contact with his prospective charge
and to lay the foundations for a relationship of confidence
between officer and probationer during supervision. “The
place of the interviews and the circumstances under which
they are conducted condition to a very large extent the
success of the investigation. Privacy is essential. The

dangers of interviewing an offender in jail are obvious.

186 Sullivan, supra note 92, at 246.
187mm.

133 Glueck, op. cit. supra note 123, at 15.
189Ferris, op. cit. supra note 177, at 141.

161

he very atmosphere precludes free discussion and tends
0 increase tension * * *. Since a major purpose of
he preliminary investigation is the discovery of the real
roblems and potentialities of the offender in order that
eatment based on his actual needs may be planned, the
fiender should be studied, if possible, in his natural
rroundings.” 19°
It will not always be possible, however, for the probation
cer to interview offenders in their “natural surround-
gs.” Frequently, courts insist that defendants remain in
'1 during the presentence investigation.1‘°‘1 It may in some
stances be possible for the officer to conduct the interview
the probation office but where office space is inadequate
where there is no permanent probation oflice the jail
st perforce remain the place of the interview. N o sheriff
police officer should be present at the interview.192 how-
r, since their presence will often arouse a defendant’s
picions and cause him to hold back essential information.
interview in privacy increases the chances for estab-‘r
ing a relation of confidence between the offender and 1,
investigator.” 193
t is the officer’s task to establish a friendly relationship
hout becoming too sentimental or sympathetic and with-
holding out rash promises to the offender. The offender
uld not be led to believe that probation in his case is a
ainty, or that he has been underprivileged, mistreated,
ersecuted by law enforcement agencies and society. But
officer should strive to win the offender’s confidence by
'ng him “understand the friendly purposes of the investi-
on, i. e., to discover the most helpful service society can
er him and not to accuse him or to make a more severe
ence possible.” 194 The interview should not be rushed
ugh at top speed by the officer nor should it be con-
ed without interruption when the subject begins to show
s of strain and tension.195 A calm, unhurried attitude on

ullivan, supra. note 92, at 246.
ee ante, pp. 145—146. '
ee Ferris, loo. cit supra note 189.
id.

bid.

bid.

v.1

162

the part of the officer will elicit a far greater amount
formation than harsh and inquisitorial methods.

This interview may properly be called a social exa
tion of the defendant 19" and it need not follow any 8
typed form or pattern. Flexibility of approach is
desired. New fields of inquiry should be explored as
present themselves, but the main purpose of the inte
should not be lost sight of in a maze of insignificant tri
ties. Special peculiarities of the individual should b
covered but the development of each topic of inquiry
look to the final goal, i. e., the presentation of the most
plete and socially significant picture of the defendant as
ble. The use of prepared forms and questionnaires
insure the inclusion of all important topics but the p
may remain fragmentary and reveal a subject of in
rather than an individual person. A well—trained, c
tent investigator will be able to judge how far to p
a topic and its importance to the case as a whole an
not be sidetracked to nonessential matters.

g It would seem that the best interview would be conc

. [with everything that the offender can remember about

self. Ferris offers the following groups of items, e

be developed according to need: 197

(a) The offender’s family history, with names, date
dences, occupations, finances, diseases, etc., of siblings, p
parental siblings, and grandparents, as well as react'
them, and reasons for leaving home;

(b) Schooling, including age of commencement and t
tion, studies enjoyed, reactions to school and teachers,
for leaving school, and desire for further schooling;

(0) Account of offender’s migrations, various enviro
past and present associates, and reactions to them;

((1) Work record, including names of employers, d
employment, reasons for change of employment, kind
ployment preferred, wages, nature and periods of un
ment, and ambitions relative to employment;

(6) Economic status, past and present, covering inco
expenditures, debts, reasons therefor, and plans for 1
tion, property (house, car, investments, luxuries),
surance, and attitude toward these matters;

19“ I'bid.
19" I bid.

163

(f) Health, including history of diseases, physical condition,
past and present, physical disabilities, and attitude toward
health matters such as personal hygiene, etc. ;

(g) Moral and recreational habits, such as use of tobacco,
alcohol or drugs, resort to prostitutes, homosexual or auto-erotic
practices, reading, including the type and number of books and
magazines read, resort to poolrooms, dancing, bowling, theater
attendance, and outdoor sports whether social as baseball or
solitary as hunting;

(h) Affiliations, fraternal and religious, and attitude toward
them;

(1') Marital history, if any, and reactions to sex life, mar-
riage, and children;

(j) Delinquency record, juvenile and adult, and reactions to
the same; and
(k) In general ambitions, tendencies, aptitudes, hobbies,
dislikes and obsessions, as the offender sees them.
It cannot be expected that the answers which the offender
pplies to all these questions will be complete, accurate,
(1 reliable. Various personal considerations will affect the
ality and content of his replies. He may fear the possible
.maging effect of certain admissions, his memory may be
lty, he may be a psychopathic liar, or he may feel such
plete indifference or antagonism toward the entire in-
iry as to be unwilling to make any frank or revealing
tement. Even when the offender does his best to supply
est and adequate answers to all questions, his own per-
al point of view may so color his information as to cause
picture he presents of himself to be something more on
than the true one. But even these faults in the charac-
of the. information gleaned from the interview may be
ortant to a complete understanding of the subject. A
sal to answer may be an unconscious self-revelation.
uliarities in his phraseology and gestures may contribute
knowledge of his personality and mind and should be
fully recorded as an aid both to the officer and to the
chiatrist who may later make an examination. Another}
1 consideration to be noted is the offender’s reaction to:
interviewer. All these things should enlighten the officer
0 the defendant’s personality and problems.198

For an excellent account of the social examination, see Ferris, op. cit.
note 177, at 141—143.

164

This social examination lays the foundation for th
mainder of the investigative process. It should dis
the nature and extent of subsequent inquiry which wi
necessary. It should show where to look for the nec
information and furnish material for the psychiatric ex
nation which is to follow. “First of all comes the stu
the individual for the purpose of discovering the world
exists in his mental imagery. This will reveal the ma
in which objects and situations have been defined to
him a delinquent and just what objects in his worl
responsible for his delinquent attitudes. This cross-se
of the life of the individual can be used as a guid
selecting the situation into which he is to be placed. I
reveal also what objects have to be redefined for the
vidual.” 199

Physical and mental ewaminatiom.—Physical, psych
ical, and psychiatric examinations are by no means univ
Many probation departments lack facilities for unde
ing them and there is some controversy as to the desira
of requiring them in all cases. But “in courts where
and physical examinations are not made, the feeble-m'
with fixed antisocial habits, the diseased, the drug a
and the emotionally unbalanced are undoubtedly plac
probation when there are no facilities available to the p
tion officer for their proper treatment.” 20° Such exa
tions are generally given in the better organized pro
offices and the current trend is to use them more and
frequently.201

There is, no doubt, some question as to whether
offender need be given such tests “since the majori
offenders appear to be normal physically and mentall
But antisocial conduct is thought by many t
an outward sign of some physical or mental
justment. Moreover, examinations of evidently norm
fendants not infrequently “uncover hidden physical d
and limitations, and mental and emotional abnorm
which the social examination has not indicated, but

199 Brown, supra note 102, at 21.

90° Cooley, loc. cit. supra note 90.

1’01 Ferris, op. cit. supra. note 177, at 143.
202'1’bid.

165

when known, explain much in the offender’s history and
characteristics. In view of this it is a Wise practice, Where
'acilities for these examinations are available, to utilize
hem in every case possible. It is far better to err in this
irection than to fail to understand the offender because of
he lack of important physical and psychiatric informa-
ion.” 203 '

Other considerations which have militated against the
ore widespread and frequent use of such examinations are
at they are time consuming and expensive. But the com-

ensating benefits of more complete examination are being

ore and more appreciated by the courts.204 The establish-
ent of several well-equipped clinics at strategic locations

the state should be sufficient to serve courts for this pur-
ose. Some probation departments have been able to use

e services of the staffs of local institutions.205 It is not

ecessary for every court to have Within its jurisdiction a
mpletely equipped clinic With a full-time staff. But all
urts should have at their disposal adequate facilities for
nducting physical examinations.

Physical examinations by competent physicians will re- '
al any bodily defects under Which ofl’enders must labor.
urts should hesitate to turn back to society the lame, the
It, and the blind Without some safeguards for their-

onomic and industrial adjustment in the community. The
esence of serious or infectious diseases should be dis-
ered so that proper care can be given. Social diseases in
enders should be detected and probationary release denied
ess mediCal treatment of the disease can be provided.

The psychiatric examination will assist in explaining and'
rdinating many of the facts disclosed by the social I
mination and in predicting probable success under super-
ion. Psychopathic cases are not very hopeful material

rehabilitation. Courts assume a serious responsibility
turning back to society persons Whose psychological mal-
justments may later result in crimes of violence. Some
ans are at hand to ascertain such possibilities before

Ibid.

Ferris, op. cit. supra note 177, at 145.
See post ch. VI.

166

release is granted. In failing to utilize them, courts cannot
later hope to avoid responsibility byspleading ignorance.

Vefificatéon or community examination—“Other proc-
esses of the investigation may be grouped conveniently
under the head of verification. The term is somewhat of a
misnomer, since these processes, which are designed to ex-
haust all available sources of information, seek not only
verification of statements made by the offender, but addi-
tional information about his habits, associates, and recre—
ational outlets.” 2°“ This final step in the investigation can
very properly be termed a field or community examination
since the inquiries are made in the offender’s own habitat
and haunts. The field investigation serves at least three
useful purposes; first, it furnishes a check on the statements
and information offered by the offender; secondly, through
the additional facts and opinions secured in this phase of
the procedure, the social picture of the defendant becomes
complete; finally, by this means the officer is enabled to
form an independent opinion of the case based on first-hand
knowledge of the physical and social environment from
which the offender came.

Ideally, the offender “should be studied in relationship
to every contact he has had * * *. His companions, his
home, and his school and work record are all important
* * *. It must be discovered how the individual has de-
fined every object and every situation in which he has had
contact, since out of these has come his philosophy of life
which, temporarily at least, is a delinquent philosophy of
life.” 207 Practical considerations will prevent an investi-
gation of “every contact,” “every object,” and “every situa-
tion.” Time and personnel for so extended an inquiry will
seldom be available. Nor will the necessary sources of in-
formation on every incident in the applicant’s life be readily
accessible. But certainly if the investigator pursues a dili-
gent search into the offender’s familiar environment he will
unearth much of value for probation purposes.

If the offender comes from another State or a distant
community, verification and field examination will be more

206Ferris, op. cit. supra note 177, at 145.
1’07 Brown, supra note 102, at 21.

167

difficult. Even in this situation, some community examina-
tion or verification is possible. Letters and telegrams to the
offender’s family or friends in his home community, or to
former employers or teachers may elicit information on
doubtful matters.208 Where the offender has had a long
residence or established connections in another State, the
robation officer in that district can be contacted and asked
0 assist the local probation officer in collecting informa-
ions”-09
The defendant’s physical environment should be a matter
f some concern to both the court and the oflicer. The field
xamination will be incomplete if it does not include a visit
0 the offender’s home and neighborhood. The type and
ondition of dwelling house, the physical aspects of the
eighborhood and of recreational facilities may influence
e type of supervision to be exercised in the event of
robation.
A conference with the family of the convicted person
ould reveal to some extent the character and personality
f the individual members, their attitude toward the pris-
er, the extent to which their influence has contributed to
's present predicament and whether any constructive as-
stance toward rehabilitation can be expected from family
operation.
If the offender is married, a keen scrutiny of the rela-
nship between him and his wife may explain much that
s happened and indicate many of the problems likely to
ise during supervision. “This phase of the investigation
all but domestic relations cases is usually passed over
htly, but should be given prominence. * "' * Such
atters as disagreements in the home, attitude toward sup-
rt and family finances, kind and extent of interest of both
rtners in each other and in their children, the offender’s
actions to them, and their reactions to him not infre-
ently show that the primary problem of the offender in
ference to social rehabilitation lies in the domestic situ-
ion. Probation records show that a man or woman with
unfortunate domestic life does not ordinarily respond so

Ferris, op. cit. supra note 177, at 146.
Upton, supra note 105, at 34.

73115—39—VOL. II 12

 

168

quickly to remedial treatment unless all members of
domestic unit are brought under treatment.” 21°

The community examination must of necessity be ada
to each case 211 but should cover all doubtful or signi
matters raised by the social examination of the defen
The offender’s recreational activities should be checked
his leisure-time companions contacted; specific knowl
concerning these influences may go far toward explai
his delinquencies. Interviews with neighbors may t
light on the family situation but unless such interview
handled with tact and discretion, neighborhood gossip
be excited and the offender’s problems complicated if
when he returns to the community as a probationer. ‘
problem which every social worker and probation o
faces is to obtain as many illuminating facts as pos
without arousing discrimination against the client.212
and discretion should not be exercised on the basis of
cealment, however. “The criterion should be: how
should be disclosed in order to state the truth wit
hurting the cause of the client?” 213

The community examination should disclose evidenc
thrift, extravagance, chronic indebtedness, financial res
ibility, dependency, religious training and observance,
cise of citizenship privileges and amenability of the su
to discipline, at home, in school and at work.“ Prob
forced on an unstable or recalcitrant probationer re
too often in both the undoing of the probation officer
the failure of the probationer.215

“The inquiries, called the ‘investigation,’ should gi
comprehensive picture of the individual’s own world: 0
personality, his relationship to others, his immediate
vironment as seen in relation to him. We should know 8
thing of his likes and dislikes, his desires and hopes,
disappointments and failures, his ambitions and plans,

21° Ferris, op. cit. supra note 177, at 148.

mm. at 146.

212 Weiss, The Social Women-’3 Technique and Probation in Glueck, Pro
and Criminal Justice (1933) 165, at 178.

2131bid.

1’14 Id. at 180.

21“Ibid.

169

shortcomings and disabilities, his qualities and assets, and
above all, the possibilities of getting him on his feet.” 216
Diagnosis, reports, and recommendations.—The numerous
uses for the information which a probation investigation
upplies have already been outlined.217 Foremost among
these is the indispensable aid which the investigative data
ender the court in carrying out the selective process. Com-
letion of the fact-finding phases of the investigation does
ot mean, however, that the material collected is ready for
he court’s consideration. An adequate and properly con-
ucted investigation should result in the accumulation of a
ather considerable amount of information. The form and
ontent will not be such, however, as to lend itself to facile
1tilization by any court. As yet the data do not present
ny well-defined or comprehensible picture of the offender
o serve as a basis for judgment.

For one thing, there will be too much material for the

ourt to study carefully in the limited time at its disposal.
nother shortcoming of the material in this form will be
he apparently irrelevant and contradictory nature of the
formation it contains. These objections will hold true
0 matter what the intended or possible ultimate use of
e material may be, whether it is to be offered as a report
r recommendation to the court, whether it is to be kept
s a permanent record of the probation department, or em-
loyed as a basis for initiating supervision by the officer,
transmitted to an institution in case the defendant is
mmitted. Before the officer concludes the investigative
ass of his work he “must concentrate on sifting his
aterial, on comparing contradictory information, on evalu-
ing his facts and on considering them in relation to each
her.” 213
When the necessary information has been brought
gether it becomes the worker’s duty to record it in perma-
nt form. By this time all the necessary facts should be
his possession: “But something more than facts is

216 Weiss, op. cit. supra note 88 at 180.
217 See ante, pp. 135—136.
218 Weiss, loo. cit. supra note 216.

170

needed; to be properly used they must be interpreted.” 219
5¢Unless facts are correctly presented to the court it cannot

use the efforts that have been expended on investigation as a

basis for intelligent and constructive action. 22° The record-

ing, and 1nterpretat1on of social data require all the sklll .91.,
a trained person. 221 “To p1escnt a wrong picture may be

more harmful than to present no picture at all. So the m-

vestigation must be thorough. It should be conducted by

people who know * * * how to interpret their findings

to the judge, briefly and correctly.” 222

Ferris and Weiss speak of “diagnosis” in connection with
this process of sifting, evaluating, and interpreting.223 Ac-
cording to Ferris the function of the “diagnosis”~ is to
determine the significance of the facts collected.224 “On the
basis of the facts and as explanatory of them, it seeks to
grasp the underlying causal factors in the make—up of the
offender and to understand the foci of interests in his life,
With an estimate of their relative importance and bearing
on the future development or control of the offender. Yet
the diagnosis 1s something more than a critically objective
and scientific analysis, it is definitely purposive in that the
ultimate goal is the determination of 'what social controls
are applicable to and will be cooperated in by the offender
toward his ultimate rehabilitation as a self-sufficient and
useful member of society.

“N 0 hard and fast rule can be made to govern the diag-
nosis. Only two or three features are really essential; the
rest is a matter of detail. It is of first importance that the
probation officer shall, in the light of the investigation,
understand clearly the definite problem which confronts
society in the case of the offender and which confronts the
offender in the face of society * * *. To understand
the problem it is essential to know the probable causal
factors in the situation, the resources of the offender—phys-
ical, mental, moral, economic, and social—and the resources

210 Ferris, op. cit. supra note 177, at 149.

2‘20 Smyth, supra note 155, at 93.

221Report of the Crime Commission, lac. cit. supra note 131.

222 Smyth, loc. cit. supra note 220.

223Ferris, loo. cit. supra note 219; Weiss, op. cit. supra note 212, at 175.
2’24 Ferris, op. cit. supra note 177, at 150.

171‘

of society applicable to the offender’s particular case. On
the basis of this understanding and with full value given
to favorable and unfavorable factors, a specific plan of
treatment should be outlined” 225
Ferris suggests three steps in the diagnostic procedure
as “practicable and desirable.” (1) The investigator should
write out for the record his analysis of the case in the form
of a diagnostic summary. (2) At a conference of investi-
gators and supervisors the diagnosis should be considered
and discussed and the conference should decide what type
f social treatment is indicated. (3) If probation is de-
ided upon as the proper form of treatment, after the con-
erence a specific plan of supervision should be drawn up.226
Such a diagnostic procedure is undoubtedly a wise plan to
e followed by an officer who is a member of a large metro—
olitan probation department. For the officer who serves
maller communities and courts having but one officer, such
procedure is, of course, not possible. However, even the
flicer who embodies the entire local probation department
n his single person can make reasonably accurate and valu-
ble diagnoses. In Weiss’s definition, “diagnosis is thinking
bout the case.” 227 The mere act of recording the facts in
ermanent form will require a large amount of thought and
iagnosis if an acceptable type of record is to be made.
Probation statutes in almost all jurisdictions make some
ttempt to require probation officers to report to the court

5 to the results of investigation.228 The necessity for such _

, report is obvious if the investigation is to have any bear-
g at all On the selective process. But apparently, the
orm and content of such reports has long been a subject
f controversy between courts and social workers.229 “Magis-
rates and judges vary in their use of the investigative rec-
rd. Some read the entire report and make dispositions
n the basis of its contents. Other judges do not read the
eport but merely ask the probation officer for an oral sum-

ary. Still others read the report but disregard its con-

2251d. at 150-151.

m Id. at 151—152.

1’27 Weiss, loo. cit. supra note 216.

2’13 See ante, pp. 132-134.

92“ See Sullivan, supra note 92, at 246-247.

‘34 .v— -

172

tents or recommendations. A few judges place the proba-
tion officer on the stand to read the report aloud and often
to give further testimony. Some judges turn the report over
to the attorneys for the defense and for the prosecution,
While others read aloud to the defendant in the open court
room the report or extracts from it, and ask him to aflirm
or deny certain statements.” 23°

Actually, the court’s preferences as to form and content
need not prevent the officer from compiling and recording a
report of satisfactory quality. Facts can be assembled, eval-
uated critically and analytically, and the relevant and sig-
nificant information correlated into a useful and adequate
record in accordance With the officer’s own enlightened j udg-
ment. If the court which he serves desires something less
than a complete social history of the offender, the officer can
supply extracts from the complete material or prepare a
highly condensed version for the court’s inspection.231 Stand-
ing alone, the excuse that courts do not want proper case
histories to be prepared should never be an acceptable ex-
planation of an oificer’s failure to do this part of his task
Well.

Some consideration for the court’s time and patience must
be exercised, however, even Where full and complete reports
are demanded by the judges. Long, rambling, unintegrated
recitals of information accumulated by the officer can be of
little assistance to a busy court. It is not the court’s duty to
reconcile contradictory neighborhood opinions of the proba-
tioner’s character and potentialities, nor to attempt to syn-
thesize isolated occurrences in his history. All this should
be done by the officer before he places the report at the
court’s disposal. A good report will be “succinct, embody-
ing briefly the results of the diagnostic procedure; it should
note only the highlights of the investigation; emphasize the
causal factors and their bearing on the future of the of-
fender.”82 “Accuracy, honesty, objectivity, and clarity
characterize the well-recorded preliminary investigation.” 233

28° Sullivan, loo. cit. supra note 104.
981m. at 248-249.

as‘-’E‘errls, op. cit. supra. note 177, at 152.
”Sullivan, supra note 92, at 260.

173

Whether or not the report of the presentence investiga-
ion will include a recommendation as to disposition will
spend upon local statutes and court practices. A few stat-
tes require the officer, as a part of his report to the court,
0 offer some advice as to the feasibility of probation in the
articular case.234 Where no such statutory requirement
ists the preferences and practices of local judges govern
's matter.235 Many judges consider any recommendation
the question of sentence an impertinence or an unwar-
nted interference with their functions.
Writers on the subject of probation and those who have
d the longest experience in probation work agree that
e officer should be permitted to express to the court his
inion as to the desirability of probationary release. For
urts to disregard entirely the conclusion which the officer
8 arrived at after a painstaking and intensive study of
e case is unfortunate, because the oflicer has had the best
portunity to study the case and possesses reliable infor-
ation which should be considered by the judge in dispos-
g of the case. Courts should not be compelled to follow
obation officers’ recommendations in all cases. Something
y be said for judicial experience in handling criminal
ses but the provision of the California probation law that
e court consider the officer’s recommendation, and state
t he has considered it, is a wise safeguard against per-
ptory dismissal of investigative findings.236

SUMMARY

Wtrictionsmveligibflity in many jurisdictions
it to some extent the groups from which probationers
y be selected. By and large, however, in the majority of
isdictions in the United States, the burden of selecting or
cting offenders for supervised release falls upon the
rts. A rehabilitation program cannot succeed where over-
elmingly adverse factors exist in the character, health,
ntal state and environment of offenders.

See ante, pp. 134—135.
5 See post ch. VI.
6 See ante, p. 134.

n 174
.ll‘ Jt is the purpose of the preprobation investigation t
f close to the court both the favorable and unfavorabl

fluences at work in the defendant’s personality and cir
stances in order that the choice made be as wise an
lightened as the predictability of human nature per
Statutes in 21 jurisdictions 237 in the United States
some provision for investigation, though the require
that such investigation be conducted before sentence i
general. Presentence investigations of those considere
probation are mandatory only in California, New York
Illinois. In Michigan and North Carolina they are m
tory for all felons who are considered for probation.
other States investigations need be made only in the d
tion of the courts.

In the Federal courts, Indiana, Missouri, Oregon,
sylvania, and Virginia the statutes do not indicate wh
scope of the investigation shall be but leave this matt
the discretion of the court and the individual prob
officer in each case. In most of the States having le
tion on the subject some standards for investigation
been set up by statute. Generally the scope of the inve
tion as outlined in such statutory provisions is abou
same, and is directed toward the circumstances 0
offense, the criminal history, character, and circumstanc
the defendant.

A few jurisdictions require physical and mental exa
tions of probation candidates but such requirement
usually qualified by the phrase, “whenever suitable faci
exist therefor.” Requirements of reports to the court
the results of investigation are not explicit and 0
California is there any legal requirement that the
read and consider such reports before making final dis
tion of the case. A recommendation by the probation o
for or against probation is mandatory in California a
usually permissible under the statutes of other S
though very few jurisdictions expressly require the ma
of such recommendations.

In no jurisdiction is any specific period of time fo
making of preprobation investigations set out in the

98VThirty-eight jurisdictions have adult probation laws.

175

tes. Laws in a few jurisdictions require that the reports
f investigations be kept as permanent parts of the court
ecords in the case and in a few others copies of the report
re directed to be sent to any institution to which the de-
endant is committed in case probation is denied. Not many
atutes prescribe methods to be pursued by the investigat-
g officers.
Presentence investigation is not alone useful as a neces-
ry part of the court procedure in selecting offenders for
obationary release, though the importance of this func-
on cannot be overemphasized. To the probation officer the
formation furnished by such investigation will be of in-
luable aid in mapping out the plan of treatment to be
llowed under supervision. Even where probation is
nied and the offender sentenced to a term of incarcera-
n, a report of the presentence investigation can be utilized "
prison authorities for purposes of classification and treat-
ent and by the pardoning and paroling authorities in
termining the desirability of such releases.
Authorities are in substantial agreement as to the desira-
ity of investigation before sentence. If the facts learned
to exercise any influence upon the problem of selection,
11 data must be presented to the court before the question
sentence has been determined. The delay in finally dis-
sing of cases which completion of an adequate investiga-
n may entail is amply offset by the relatively more exact
tice achieved when sentences are imposed only in the light
adequate knowledge of an offender’s history and present
dition. At least 1 week should be allowed for the gath-
ng of information and most authorities believe that a
'0d of from 1 week to 10 days should be a sufficient time in
ich to complete a fairly comprehensive social investiga-
There is some conflict of opinion as to what tempo-
y disposition should be made of the offender during this
iod but at least some judges follow what seems to be the
st humane and enlightened practice, that of retaining the
endant in jail until the officer’s report has been made.
ese judges believe that a preliminary taste of imprison-
nt may be of some force in deterring violation of proba-
if granted.

176

Presentence inquiries can be best conducted by t
probation officers, since special knowledge and experien
required to bring together the significant facts conce
an offender into a comprehensive and understandabl
ture. The separation of the functions of supervisio
investigation is probably not to be desired unless th
of a probation department is a large one and talen
specialized. Peace officers have rendered valuable se
in the capacity of probation investigators but thei
tinued employment in this field is not to be encourage
their services should be replaced as rapidly as possi
those of trained and regularly appointed probation o

Preprobation investigation of all persons charged W
convicted of crime is not at present possible. Some
has been expressed from time to time that a sci
method for the selection of candidates for investigatio
be developed. Until the time when such a plan ha
evolved or until the time that increases in personne
funds of probation departments permit the investigat'
all offenders before sentence, some minimum stan
should be set up. Certainly no person should be g
probation unless the facts of his life and circums
have been brought to the court’s attention. This is th
least that can be expected of a. probation departmen
the failure of courts to demand such information,
probation officers to supply it, constitutes one 'of the
important obstacles to the achievement of the ultimat
pose, rehabilitation of the offender, for which pro
legislation has been adOpted by the States.

The scope and methods of preprobation investi
must of necessity vary with individual cases but an ad
and well- rounded 1nquiry should include a search of the
ous criminal record, an examination of the social hist
the defendant based primarily on a personal intervie
ducted by the investigating officer, and a verification o
munity examination. Whenever possible physical and
tal examinations should be made since these may
weaknesses of body or mind which may constitute insup
handicaps to rehabilitation.

177

Reports to the court on the results of preprobation inves-
igations should be complete, accurate, and revealing. A
arefully integrated and concise record of the investigation
ill aid not only the judge Whose duty it is to select proba-
ioners but will serve as a yardstick of the progress and
chievements of probation as a process in the administra-
ion of criminal justice. “The day is past or should be when
he probation oflicer is simply a sort of confidential investi-
ator for the judge.” 238

The probation officer today owes a duty to the court, to the
fi‘ender, and to society, and the conscientious fulfillment of
's duty to all three will require that his investigation be
ainstaking, significant, and complete and that his report
f it be kept as a permanent record of the court and of the
robation department. Only When such permanent records
re made accessible can there be any hope of arriving at an
ccurate estimate and a fair judgment of the quality of the
rvices performed.

When such records are available, it is important that
urts avail themselves of the information contained in
em. Judges should heed the recommendations of the in-

tigating oflicer Whose more complete and specialized un-
rstanding of the offender and his problems renders his

vice of great value in determining What should be done
ith the offender.

2’38 Report of the Crime Commission, op. cit. supra note 94, at 273.

 

 

CHAPTER VI

THE SELECTIVE PROCESS: INVESTIGATION
PRACTICES

NEED FOR ADEQUATE PROBATION INFORMATION

“* * * let us remember that each case record is a con-
ibution to the history and development of probation it-
lf. Possibly one reason why probation, in comparison
ith other branches of case work, has been retarded in its
evelopment is the complete absence of case records in the
rly days and the meagerness of those of later years. There
3 been really no accurate and comparable basis upon which
evaluate probation to determine either its effectiveness
its scope. A profession to develop soundly needs a con-
ant inventory in relation to its philosophy, practices, and
sponsibilities in the light of new discoveries in the field of
owledge and the changing problems inevitable in a chang-
g social order.
“The case record provides the most tangible yardstick
ailable for probation to measure its own achievements.
reality, the case record is the mirror through which pro-
tion sees itself as it really functions. Without recorded,
ncrete evidence, probation is but another hopeful theory
ich yet remains to be demonstrated.” 1
That adequate and reliable records of probation work are‘xj‘x‘

e of the major unfulfilled needs of modern probation serv- »

has long been pointed out by those who have written
oughtfully on the subject. Their conclusions have found
ple confirmation in the studies made by this Survey.
cause case work over the entire country has been for the
st part either inadequately recorded or not recorded at
, it has been an almost impossible task to include in this
dy any conclusions supported by reliable facts. Suspi-
n may have been aroused and private opinions formed

Sullivan, Principles and Values in Case Recording, Yearbook, Nat. Prob.
'n (1936) 240, 262.

(179)

180

on the basis of some general knowledge of conditions

trends prevalent throughout the probation systems of
nation, but the amount of actual facts on which to pr
cate an accurate judgment of present practices is so me
as to be almost entirely unsatisfactory for the purpos

this report.

If, however, there is any general statement that this st
can offer without hesitation as to the faults of modern
bation, it is that records of probation work are inadeq
unreliable, and for the most part nonexistent. Until ofii
departments, legislatures, and courts charged with the
ministration and financial support of probation re
this condition they can expect no accurate appraisal of t
services and must not complain if they frequently bec
the objects of unfavorable criticism. The Survey has
hampered during the entire course of its field work by
impossibility of securing accurate information as to
kind and amount of probation service offered.

Apart from the work of the Federal probation ser
record keeping has been so neglected and uneven as to
der impossible the compilation of any reliable statist
data, relating to the extent and adequacy of probation
vestigations. From the facts gathered by the Survey i
possible to draw only a few conclusions as to existing
ditions and probable trends in regard to probation inv
gative practicesax Here and there over the country a
organized and exceptional local probation department
been able to supply satisfactory information which c
be utilized in an evaluation of the character of its ser
But data in the possession of the Survey are so lackin
uniformity both as to quantity and quality as to re
them useful only for purposes of illustration and den
stration.- Before an accurate appraisal of probation p
tices throughout the country can be made, it will
necessary for those charged with the administration of
bation to keep much more complete and reliable record
their work than were available in the majority of proba
departments at the time the data for this Survey
collected.

Uniform probation policies among the several States
much to be desired. The relative ease with which juris

181

nal boundaries may be crossed renders the careless ad-
' istration of probation in one area a matter of general
cern to the whole Nation.2 .The careful choice by all
urts of offenders who are to be placed on probation should
a matter of public conscience. Selection of probationers
thout first making a thorough presentence probation in-
tigation may serve to complicate the law-enforcement
oblem of a neighboring community.
bservation of probation investigative practices through
the country reveals that only in the Federal probation
vice and in no more than three States is there a uniformly
r investigation system within the jurisdictional bounda-
s. It is notable that in no State is the administration of
bation of the same quality and standard throughout
State. As the report of the Wickersham Commission
Recent Social Trends have pointed out in earlier studies,
lines of cleavage are not State boundaries but lines of
ulation distribution.3 It has long been known or sus-
ted that as a whole probation supplies a more satisfactory
’ce in urban centers than in rural communities. Research
ducted by the Attorney General’s Survey confirms this
lusion as a fact. Where States have been commended as
lying adequate probation service, the estimate has gener-
been based on the observation of the character of service
lied in metropolitan areas. Exemplary service in every
t and county throughout the State is not to be found even
successful a probation State as New York.‘ Frequently,
lendid, well-administered, probation department lies in
geographical juxtaposition to a notoriously “black spot.”
he probation map. Even within the limits of a single
ropolis a wide variation in probation procedure may be
rvable.

he probation work in a given community aflects the entire State. If
badly done, criminals will go out from that locality into other parts
e State or other States, and the public of other States will pay for un‘
sary institutional commitments.” Chute, State Supervision of Probw
(1918) 8 J. Crim. L. 823, 826.

nal Institutions, Probation and Parole (1931) 203, Report No. 9 of the
ma] Commission on Law Observance and Enforcement; Sutherland and
e, Crime and Punishment, Recent Social Trends (1933) 1156.

e Report of the Crime Commission, (1927) 251 et seq. (N. Y. Legis.
94); Proceedings, Governor’s Conference on Crime, the Criminal and
y (N. Y. 1935) 980, 981.

182

SUMMARY OF PROBATION INVESTIGATIVE PRACTIC
SELECTED STATE PROBATION UNITS

This chapter is concerned only with the manner in
probationers are chosen for release under supervision.
' the process which leads to the selection of probationers '
keystone of the entire probation structure needs no fu
emphasis. However, probation will continue to fall far
of its purpose until probation departments offer a com
well-rounded program of investigation which is £011
without deviation in all cases. Some probation de
ments carry out good programs of investigation wit
sonable regularity. In none can the service be trut
described as excellent. For the most part investigatio
conducted incompletely and sporadically. Out of 108
studied, 16 could be classed as offering the prospect of a
investigation with fair regularity; in 18, only a fair in
gation could be expected in any case. Forty-five unit
ducted some type of social investigation sometimes; 13
depended upon the sheriff, prosecutor, or the police to
presentence information about the offender. Sixteen
one hundred and eight units conducted no investigation

Thirty—three States 5 and the District of Columbi
represented by at least one court' or probation depar
in this group of 108. In those 34 jurisdictions ther
more than 2,000 counties; therefore, it will be seen that
108 courts and probation departments represent a rela
small proportion of possible probation units. Howeve
group studied includes all the large probation unit
those which have long been recognized as supplying th
probation service in the United States. Nine State
represented in the 16 units classified as “good”; 8 Sta
the 108 are considered “fair.” The 45 units which offer
“some” social investigation are distributed among 19 S
the 13 units which depended on the sheriff, prosecut-
other court official for investigation are situated in 10
ent States, and the 16 which offer no investigation at a
scattered over 12 States.

“Arizona, Arkansas, California, Colorado, Connecticut, Delaware, G
Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Maine, Maryland,
chusetts, Michigan, Minnesota. Missouri, Montana, Nebraska, New Jerse
York, North Dakota, Ohio, Pennsylvania, Rhode Island, Tennessee, Ve
Virginia, Washington, West Virginia, Wisconsin.

183

The following synopses are set out as a fair sample of
he average of probation investigative practices in the vari-
us sections of the United States. The material offered is
ased for the most part on the meager information in the
ecords of probation departments which was capable of
eing set down in statistical schedules and on the state—
ents of judges, prosecutors, and probation officers of the
espective localities.

ARIZONA.—Ma1icopa County—All investigations are
ade after conviction but prior to sentencing. No records
f the investigation are kept.6
Pima County—No investigation by a probation officer.
nformation and recommendations, if at all, by county
torney.

ARKANSAs.—Tewarkana.—Court relies on oral statements

prosecutor and sheriff made in open court for investi-
tion.

CALIFORNIA—L08 Angeles County—A special division of
e adult probation department carries out investigation of

plicants for probation.7

Mendocino County—Investigation only in cases where

application for probation has been filed.8

San Francisco County—Staff of 11 available for investi-
tion and supervision. No investigation of municipal
urt cases.

Command—Seventh judicial district—Grand Junction
lice do a considerable portion of investigation work.

eriff of Mosa County also investigates for court.

ourth judicial , district—Court relies on district attor-
y’s office in each district for investigation.

moan—Investigation is postsentence; investigation is
rsonal, but is carried out through correspondence if de-

Schedules are filled out for every person convicted and call for infor-
ion about: The crime, the outcome of the prosecution, physical charac-
stics of the defendant, his past criminal record, his family history, pro-
ural history of the present case. Investigations usually include interviews
h the complaining witnesses and the prosecutor handling the case and,
re time is sufficient or it seems particularly important, interviews are
ght with defendant’s family, employer, and acquaintances.

For more complete description of investigation procedure in Los Angeles,
infra, pp. 198—201.

This is the usual procedure in California. See The Prison Labor Problem
California, Report of Prison Industries Reorganization Administration
37), 65. Hereafter cited Pira Report: California (1937).

73115—39—v0L. II 13

 

184

fendant comes from another locality. Verification of de-
fendant’s statements is made.9 _

CONNECTICUT.1°—Hartford County, superior court—Pre-
sentence investigations are not ordinarily required. In-
formation furnished by State’s attorney’s oflice concerning
social background, employment, and general character.
Oral reports with specific recommendation by State’s at-
torney. '

Middlesew Oounty, superior court—State’s attorney
makes investigations, as a rule. Occasionally court appoints
a probation oflicer (juvenile and adult probation officer for
city court) to make a presentence investigation.

DELAWARE.—Wilmiflgt0n, court of general sessions.—No
set time for report of investigations to the court. Oflicer
reports when he has gathered the data, and submits a type-
written report to the court. Court follows the recommenda-
tions of the probation oflicer. Presentence investigations are
so confidential that no one (including Survey reporter) but
court may see them. Investigation said to be made in
nearly all cases but very little social history data obtained.
N 0 plan of treatment is devised by investigator. Very heavy
case loads.11

DISTRICT OF COLUMBIA.—Probat.ion officers are instructed
to make an investigation at the time of arraignment. Pre-
sent-ence investigations are always available for the court.
The investigation as a rule consists of a personal interview
with the defendant, checked by contacts with other persons
acquainted with the defendant, and the facts of the present
offense.

GEORGIA.12—Floyd County, superior court—No presen-
tence investigation.

9See ante, ch. V.

1° Probation officers in Connecticut are required by law to: Confer with
the accused, report the facts found to the court, and preserve a record of
these facts for identification and other purposes. Conn. Gen. Stat. (1930)
§ 6516. ,

11See PIRA Report: Delaware (1936) 73.

12Except in misdemeanor cases, the Georgia law itself places a serious ob«
stacle in the way of presentence investigation since felons may be granted
probation only when the charge against them has been reduced to a misde-
meanor and felonies may be punished as misdemeanors only on the recommen~
dation of the jury. Ga. Code (1933), § 27—2501. As the Report of the PIRA

185

Blue Ridge, circuit court—No presentence investigation.

Marietta, superior court—No presentence investigation.

IDAHo.—Third judicial district, Boise—Judge makes ex-
tensive personal inquiries concerning defendant, and watches
for family troubles; tries to get a personal and social his
tory. There is no adult probation oflicer in Idaho.

ILLINors.13—0007c 00uuty.—The probation department in
this county is highly organized and efficient. The Chicago
unit has access to free medical, psychiatric, and psychologi-

cal services. Investigations are made only when the court

orders and 4 of the 26 probation officers conduct the
'nvestigative work. The investigation covers the physical
nvironment of the offender, family factors, health, educa-
ional and employment history, religious experience, leisures
ime activities, delinquency history, and the experience of
ther agencies with the family of the defendant.

Saugamou 00uuty.—The one probation officer makes in-
estigations for the judge and reports orally. Every case is
nvestigated by personal interview.

Circuit court, Ottawa—There never has been a probation
flicer for this court. Whenever a presentence investigatiOn
s “necessary” it is made by the chief of police of the locality
here the arrest was made or by an investigator from the
tate’s attorney’s office. Each investigator obtains what-
ver information he thinks will suflice. In 1936 only nine
efendants received probation.

Circuit court, Peoria County—There is one full-time

cer who. investigates those cases as to which the judge
considering granting probation. There is a personal in-

estigation with a written report to the judge but no
commendation is made.

serves: “It would also be better to give the judge discretion to order
obation, without recommendation by the jury. The decision whether or not
use probation should depend in part upon facts which are not ordinarily
esented to the jury, such as the defendant’s criminal record, employment,
story, family life, associates, and his physical c'ondition. After the jury’s
rdict of guilty, the judge will need to continue many cases for investigation
these facts before imposing sentence, and he should have discretion to base
8 decision upon the results of his investigation.” PIRA Report: Georgia
937) 63.

13Investigation is mandatory before probation may be granted. 111. Stat.
11. (Jones, 1936) § 37-773.

186

Circuit court, Oha/mpaign 00unty.—One part-time officer
makes personal presentence investigations. A written re-
port is submitted and the court requires a recommendation.
The report of the investigation is filed in the clerk’s office
and the clerk’s files are open to the public.

INDIANA.14—0ircuit court and superior court, Nos. 1 and 2,
St. Joseph County.——Presentence investigation is required in
all felony and in most misdemeanor cases. A very complete
social investigation is made and there is usually a type-
written report made to the judge. There were about 125
investigations in 1935 and the average number on probation
during the year was 137.

Marion County criminal court, I ndianapolis.—Presentence
investigation is required in all cases and is usually ordered
at the time of arraignment so that when the defendant is
brought to trial the judge has before him information as
to home surroundings, recreation, church, employment rec-
ord, and social contacts. Beginning June 1, 1936, this pro-
bation department planned to make complete investigations
and to keep a case history on all cases considered good mate-
rial for probation.

IOWA.15——Scucnth judicial district—No probation depart-
ment; no presentence investigation.

Ninth judicial district, Polk County—The judge occa-
sionally requests presentence investigation. Little case his—
tory material is obtained. A report is not required but is
generally volunteered by the ofiicer, who is paid by the
Society for the Friendless.

Eighth judicial district—No probation department.

Woodbury County (Sioua: 0ity).—The investigation con-
sists of a questionnaire filled out by the defendant. The
questionnaire calls for information about defendant’s resi-
dence and employers for preceding five years, the names
and addresses of his immediate family, his police record, and
his age, place of birth, and education.

1‘ Rules of board require presentence investigation. The investigation
should cover the circumstances of the otfense, criminal record and social
history of the defendant. In fact, “all factors in the background of the
individual that will afiord an opportunity to study the offender and the
offense.” Gen. Rules Governing Probation (Ind. Div. Prob. 1935).

1“Because of the lack of probation officers there is seldom any presentence
investigation in Iowa other than a check on the defendant’s criminal record.

187

KANSAs.——District court, Douglas 00unty.——Presentence
investigation is used mostly for first offenders under 25.
Files on investigation material consist mainly of letters
from the “parolee” and the bare legal papers in the case.

District court, Wyandotte 00unty.—No regular probation
officers. Some informal presentence investigation is carried

out.

KENTUCKY.1°—0ircuit court, Uatletsburg.—Only per-
functory attempt at presentence investigation.

Circuit court, Lexington—Commonwealth detective looks
up the criminal record of the defendant and presents it to
he court.

Circuit caurt, Louisville—Court has no definite probation
et-up, but court occasionally suspends sentence without
.resentence investigation.

MAINE—Cumberland 00unty.—Presentence investiga-
ions are not required. The established practice is to make
uperficial investigation of those held in detention. The
nvestigation made is limited and there are very few records.

Androscoggiu superior court.—Presentence investigations
re not required but are generally made. Until 1935 this
flice had no records.

Superior court, Kenuebec.—Augusta County attorney

akes whatever investigations there are and these are not
enerally before the sentence.

MARYLAND.17—Baltimore 0ity.—The only scientific inves—
gation service in the State is to be found in Baltimore.18

Other countie3.—Investigation is limited to such facts as

ay appear at the trial or are volunteered by persons inter-

ted in the case.19

10 Kentucky now has a probation act which provides for a State-adminis-
ed system with paid probation oflicers. This act was passed in 1936. Ky.
t. (Carroll, 1936) §979b——9.

1" Only in the city of Baltimore has provision been made for regular, paid
obation oflflcers. The PIRA Survey observed that: “While we can only esti-
te, it would appear that from 200 to 400 prisoners now confined in Mary.
d might properly have been placed on probation, if adequate facilities had
’sted for their investigation and supervision. Investigations by probation
cers would certainly have revealed at least this number who could have
n placed on probation * * "’ PIRA Report, Maryland (1937) 33.

18 For a more complete description of this unit, see infra, pp. 201—204.

19 “The laws conferring upon the courts authority to use probation are satis-
tOI‘Y, except that the law applying to the counties might well be amended
include some of the regulations as to procedure of the Baltimore City act.
obation is used in most Maryland counties to a considerable extent, though

188

MASSACHUSETTs.—Suflolk Oounty, superior court—Eleven
officers of a staff of 15, both investigate and supervise. Free
psychological, psychiatric, and medical service are available.
The reports of investigation are concise and contain only
the essentials and concrete details of the offense. Volumi-
nous reports are discouraged. Recommendations are offered
to the court only in special cases and at the court’s request.
When made, however, they are generally followed.

Springfield district court—Psychiatric and psychological
services are available through other public departments.

Roxburg/ municipal court, Boston—A doctor and a psy-
chiatrist are on call one day per week. Other medical and
psychiatric service is secured through other public depart-
ments.

Boston municipal court, Boston—This department has its
own medical and psychiatric staff. About 22 officers inves-
tigate and supervise cases. Investigation is made when
ordered by the court. There is no routine presentence
investigation of all cases although there is some attempt in
this direction. There is practically no verification of social
history. The recommendations of the probation department
are followed by the court as a matter of routine.

Central district court, Worccsten—Investigation is lim-
ited. The decision as to what cases should be investigated
is made by the chief probation oflicer or by the judge. The
information secured on investigation is presented both orally
and by written report. The court generally follows the
recommendations made by the probation officer.

MICHIGAN.2°—Way’lw County—Free psychiatric and
medical service is available.

Battle Crock—Probation oflicer in this judicial district
is only a part-time officer, acting in addition as bailiff,
deputy sheriff, and friend of the court. For this reason he

much less than in States with better-developed probation administration; but
except in Baltimore City it amounts to little more than suspension of sen-
tence. In some counties probation is used very little. With an adequate
probation service of competent officers, probation could be used to a consider-
ably greater extent, and the results would be more satisfactory.” PIRA Report,
Maryland (1937) 34.

20The statute requires probation officers to investigate the “antecedents,
character, and circumstances" of every person charged with felony before
sentence is imposed; in misdemeanor cases similar investigation must be made
if the court so directs. Mich. Comp. Laws (Mason. Supp. 1935) § 17384.

189

rarely has any time in which to conduct investigations. The
judge usually attempts to secure the background and his-
tory by personal interview with the defendant.

Marquette circuit court—This court is served by one part-
time probation officer who makes presentence investigations
in some felony cases.

Saginaw circuit court—There is one probation officer who
is also “friend of the court.” Very few presentence investi~
gations are made. What investigations there are, are gen-
erally conducted by the judge himself. This court will not
place a defendant on probation without a recommendation
by the prosecutor.

Grand Rapids circuit court—Two officers and a part-time
secretary serve this court. Presentence investigation is made
only when the court so orders. The information secured is,
as a rule, merely what is offered by the defendant himself
with very little verification of his statements. All field
work and investigations are carried out by the assistant.

Jackson County circuit court.—There is one full-time
officer. Presentence investigation is conducted in felony
cases in which young offenders are involved, but there is
seldom investigation of mature offenders.

Lansing circuit court—Very few presentence investiga-
tions are made. The investigation is generally limited to an
interview with the defendant conducted by the judge in
chambers after plea or verdict of guilty.21

MNNESOTA.—chncpin 00unty.22—About 50 percent of
the total of criminal convictions in this county are investi-
gated. In 1935, 53.37 percent of the investigated cases were
placed on probation. Under Minnesota law those guilty of
offenses for which the statutes provide a maximum penalty

”Salaries of Michigan probation officers attached to a circuit court are
paid by the county or counties comprising the circuit; if the officer is ap-
pointed by a criminal court of record of general jurisdiction of any city,
he is paid by the county; if appointed by a municipal or police court, the
salary is paid by the city. Mich. Comp. Laws (1929) § 17382. For this
reason, outside the largest cities, insufficient provision has been made for
probation salaries and expenses due to the reluctance of the local boards
of supervisors to appropriate the funds necessary to carry out the work
properly.

”For more complete description of investigation practices of this unit, see
infra, p. 204—205.

190

in excess of 10 years cannot receive probation.” Therefore
such offenders are not investigated. ~

Ramsey 00unty.——-This department maintains close recip-
rocal relations with other probation agencies within and
without the State. These relations include interchange of
investigation services. An unusually high percentage of
cases is investigated and many of these are given presen-
tence investigation. The files of the State criminal identi-
fication bureau are checked and reports are requested from
the Federal Bureau of Investigation. Vital statistics con-
cerning the defendant are gathered and information cover-
ing his employment, trade union membership, and other
matters is collected. A clinical examination is arranged to
secure medical reports and a psychological report may be
obtained from the State research bureau. No fixed rule
exists as to the selection of offenders for investigation. In
St. Paul, a week is the usual time allowance for investiga-
tion, with 10 days for out-of-town cases. In almost every
case there is a conference between the trial judge and the
chief probation officer as to the problems presented. No
written recommendations are made to the judge.

St. Louis County, Duluth—Very few presentence investi-
gations are made. Postsentence investigation is the rule.
Medical examination may be made in venereal disease cases.

St. Louis County, Virginia, and Hibbing.—Adult cases
are never investigated. The communities are small and de-
fendants are generally personally known by the judges or
some of the court oflicers.

Other counties—The judges of each district may call on
the State board for a trained agent to conduct a necessary
investigation.

Missoum.24—Simteenth judicial district—The parole
board holds open meetings twice a month and appearances
are made on behalf of those defendants seeking bench
parole. In Jackson County the secretary of the board sends
out letters of inquiry to references given by the defendant.

”Minn. Stat. (Mason, Supp. 1936) § 9936.

34 Little investigation is possible in Missouri; only the St. Louis Court of
Criminal Corrections is provided by statute with adult probation oflicers. In
counties having parole boards, hearings are sometimes conducted and the
prosecuting attorney is directed to make such investigations as the board deems
necessary.

191

The secretary also checks the defendant’s criminal record
with local identification agencies and with the Federal
Bureau of Investigation.

Circuit court, St. Louis (city) .—Presentence investiga-
tions are made where defendant pleads guilty and the facts
concerning him have not been presented to the court at the
hearing.

MONTANA.——There is no investigation in Montana. The
only information available concerning defendants is that
which the evidence in the case discloses.

NEBRASKA.—T]Li7°d judicial district (Lincoln).—-No pre-
sentence investigation.

Omaha—One full-time probation oflicer makes some pre-
sentence investigations.

NEW J ERSEY.25—Essccc 00uuty.—Ten members of the pro-
bation staff are assigned exclusively to investigations. A
physician and a psychologist are available on a fee basis.
Investigations are prepared and presented only on order
of the judge. The procedure in this oifice is to send out
several mimeographed forms of inquiry. As a rule the
officer will make a visit to the defendant’s home but not
ordinarily to his place of employment. Recommendations
are made verbally to the court and are not a matter of writ‘
ten record. The court follows the recommendations in
almost all cases.

Mercer County—Investigation is not presentence. When
the defendant has been granted probation he is taken to the
probation ofiice and there examined. No recommendations
are asked for or given.

Union County court—A psychiatrist and physician are
available on a fee basis.

2'5“One of the most obvious defects in the present system is the lack of
presentence investigations. With few exceptions, the several counties are
failing to take real advantage of this procedure which is so important to
secure for the judge a knowledge of the social factors involved in a case
before him. In about one-half of the counties there is no record of any pre-
sentence investigations by the probation ofiicers. Some investigations are
said to be made in two of these counties but no records are kept; in the
other counties it appears that no investigations have been made at all.
‘ ‘ * A more extensive use of presentence investigations, as authorized
by law, is urgently recommended.” Carpenter and Stafford, A Report on a
Survey of Probation in New Jersey (Princeton University, School of Public
and International Afifairs, 1934) 11.

192

Hudson County, common pleas court r—Psychiatric and
medical services are available on a fee basis. This unit
makes a large number of presentence investigations.

New Brunswick, common pleas court. —Presentence inves-
tigations are made 1n all cases by a probation officer, accord-
ing to the statement of one of the judges.

Hackensaclc, common pleas court. —A presentence investi-
gation is required 1n all important cases. A probation oflicer
makes the investigation and during this time the defendant
is kept 1n jail.

Atlantic City, common pleas court. —No presentence in-
vestigation is made unless the court asks for it.

Summer/ville, common pleas court. —Presentence investi-
gations are made 1n practically every case.

Salem, common pleas court—The judge requires presen-
tence investigations to be conducted by a probation officer.

NEW YORK.—Ne’w York County, court of general ses-
sions—The functions of investigation and supervision are
separated, with separate personnel for each. Exhaustive
presentence investigations are made.

Queens County court—All investigations made are pre-
sentence. The investigation includes a home visit and an
interview at the probation oflice.

Erie County.26—All investigations are presentence. The
investigations are thorough and the record is detailed.

Niagara County—Free medical and psychiatric services
are available.

Kings County court—Medical and psychiatric services
are available on a fee basis. The organization handling the
investigation work in this court is separate from that carry-
ing out the supervision. The separate corps of investigators
is responsible only to the judge. The division between in-
vestigation for sentence and probation supervision is rig—
orously insisted upon. The investigators are county detec-
tives, assigned to an individual judge, and as a rule carry
only that judge’s cases. “Each set of workers has its own
separate records and the records of the investigators are
carefully guarded, though the probation officers may copy

90 For a more complete description of this excellent unit, see infra, p. 205—
207.

193

from them such facts as they may contain to help them
supervise the probationers.” 27

Monroe County court. —Medical service is available on a
fee basis; psychiatric service is free. Presentence investiga-
tions are conducted in nearly all cases; all officers both super-
vise and investigate. Investigations are complete and
detailed.

Onondaga County court.—Presentence investigations are
made but are inadequate.

Westchester County court—Medical and psychiatric serv-
ice is available without cost. Presentence investigations are
made; all oflicers both investigate and supervise.

NORTH DAKOTA.28 — Bismarck. -— State’s attorney often
makes investigations.

Gino—Cleveland, common pleas court—In practically
all cases, probation is granted only after a presentence inves-
tigation has been made. The investigator’s report shows the
source of the information presented and all letters received
concerning the case are filed with the report. Recommenda-
tions by the probation officers are not customarily made.
The fourteenth Annual Report of this probation department
shows that in 1935, 709 cases were referred to the department
for investigation and that of these 471 were placed on pro-
bation. Medical and psychiatric service is available, and
the presentence investigations are detailed.

Cleveland, municipal court—Psychiatric and medical serv-
ice is available. One of the 13 oflicers attached to this court
is assigned exclusively to investigation; 10 both investigate
and supervise.

27“As administered in Kings County the corps of county detectives is a
species of secret service. Their doings are secret and their reports are for
the judge’s private ear, except that the probation oflicers may copy frOm them,
on application, to the extent stated. The consequenCe is that there is a fixed
barrier between the two bodies of men. All this gives the probation officers a
handicap at the very start of their cases. They get neither the kind of
investigation they need for successful supervision nor the kind of contact with
the investigators that they would if they were all co-workers under a common
head.” Report of the Crime Commission (1927) 259 (N. Y. Legis. DOc. 94).

28Courts in North Dakota for the most part determine eligibility without
using any formal investigative procedure. One North Dakota judge is of
the opinion that under the law persons convicted of felony cannot be
“paroled,” i. e., granted probation. The North Dakota eligibility provision
imposes no such restriction upon the courts. N. D. Comp. Laws Ann. (1913)
§§ 10950, 10951, 10959.

194

Cincinnati, common pleas court—Psychiatric and medical
services are available. Three ofl‘icers‘investigate and super-
vise, one investigates only. The investigation as a rule re-
ports: (1) The legal history of the case: A statement about
the offense, a previous criminal history obtained from finger-
print record and police files; (2) the social history of de-
fendant: Personal history, family background; (3) indi-
vidual history: Physical and mental condition, results of
intelligence tests.29

Montgomery County—During 1935—36 the probation ofli-
cer investigated 156 new felony cases and made a written
report on each case. Of this number the court placed 105
on probation.‘0

Dag/ton, common pleas court—One oflicer makes presen-
tence investigations and supervises all probationers.

Lucas County, common pleas court—A11 probation super-
vision is done by the sheriff, who apparently makes no
investigations.

Summit County, common pleas court—No presentence
investigations.

PENNSYLVANIA.—Phila(lelphia, municipal court, men’s
criminal division—Ten physicians, four psychologists, and
two psychiatrists are maintained for all divisions of the.
municipal court, and this probation office has access to the
services of the medical and psychiatric stafi'. Nine oflicers
perform both investigative and supervisory duties.

Erie, quarter sessions oourt.—Presentence investigations
are made only on order of the court. This department has
a case load of about 100 cases a year, of which only a small
proportion receives presentence investigation.

Pittsburgh, quarter sessions court—Medical and psychi-
atric services are available. Three officers investigate exclu-
sively, and four both investigate and supervise. One of
the three investigators is in court most of the time. Since
1936 thorough presentence investigations have been made.

Towanda, quarter sessions court—Presentence investiga-
tions are made by probation officer whenever court considers
them necessary.

90 Annual Report, County Dep’t Probation, Cincinnati, Ohio (1931).
30Annual Report, Montgomery County Probation Dep’t, Ohio (1935—36).

195

Gettysburg, quarter sessions court—Presentence investi-
gation consists of information obtained by the judge and
the district attorney, and is made in the case of adults, only
Where the offense is a serious one.

Tunkkan‘owek, quarter sessions court—Some presentence
information is obtained through district attorney and police.

Carlyle, quarter sessions oourt.—Presentence information
is secured in all cases of a more or less serious nature.

Harrisburg, quarter sessions court—The police and dis-
trict attorney supply information before sentence in all
cases.

Reading, quarter sessions court—The judge endeavors to
secure a presentence investigation in all cases.

Stroualsburg, quarter sessions court—Presentence infor-
mation is secured through the court in all cases except.
trivial misdemeanors.

Lancaster, quarter sessions court—Probation oflicers
make presentence investigations in all charges against first
offenders.

Philadelphia, common pleas court N o. 3.—Court feels that
the question of selection can be determined adequately by
it on basis of proceedings in court.

Lewiston, quarter sessions oourt.—Presentence informa-
tion is secured through district attorney and sheriff.

York, common pleas eonrt.——Presentence investigation is
obtained, if possible, in all cases through probation officers
and social agencies.

Allentown, quarter sessions court.—Presentence investiga-
tion is made in cases Where perversion or mental disease is
suspected. The information is obtained through the proba-
tion oflicer.

RHODE ISLAND.31-—There are 12 judicial and 4 superior
court districts. One officer or more is assigned to each.
All defendants Who come before a district court are inter-
viewed by the probation officer before arraignment, and
cases are selected for investigation in the discretion of the

flicer and the court. In the superior courts there is a thor-
ugh investigation of every case. Free medical and psychi-

81Rhode Island has a State—administered probation system. B. I. Acts and
esolves 1935, ch. 2250, §§ 2, 6, 56.

196

atric service is available through the public welfare depart-
ment. Two to four weeks are allowed for investigation, and
‘a'written report is presented to the court.

TENNESSEE.32—The only probation officer in the State is
located in Knox County. Little or no probation work is
done in the State at present.33

VERMONT.34——Presentence investigations are made only if
the court so orders, which is rarely.

VIRGINIA.-—ThiS State has no adult probation, due to lack
of probation oflicers.

WAsmNGTON.35—The only presentence information avail-
able is that supplied by the prosecuting authorities or by
the defendants.

WEST VIRGINIA.—-There is very little probation in this
State. The sheriff supplies whatever presentence informa-
tion the court is able to obtain.

WISCONSIN.36—Mz'lwaukee, municipal court—Free medical
and psychiatric service is available, and since 1936 all pro-
bationers have been referred to the county dispensary for
medical examination. This is not done, however, until after
defendants have been placed on probation. No presentence
investigations are made, but in 1936 report of the depart-
ment recommended their initiation.87

8“A 1937 statute provides for the appointment of 10 probation officers, to
be distributed on a regional basis. Tenn. Acts 1937, ch. 276.

83“The lack of probation oflicers to make presentence investigations, super-
vise probationers, and preSent to the court facts calling for the revocation of
probation, is perhaps the principal reason why probation is not more exten‘
slvely used in Tennessee.” PIRA Report: Tennessee (1937) 74.

'4 Vermont has a State-administered probation system. Vt. Pub. Acts 1923,
No. 7, §§ 3, 4, 30 (2).

85Washington has a State-administered probation system. Wash. Laws
1935, ch. 114, Wash. Rev. Stat. Ann. (Remington, Supp. 1936) § 10249—6.

88The Wisconsin probation system is State-administered, and all proba-
tioners are under the care of the Board of Control, except in Milwaukee
County, where probationers are under the control of the courts and the local
probation department. Wis. Stat. (1935) §§ 57.02, 57.02(3).

3" “Because of the reduced number on probation, and consequently. a re—
duced case load per ofiicer, it is now feasible to begin the service of pre-
sentence investigations with a written report of the findings to the court.
Since such investigation cannot be made until after conviction, it would neces-
sitate postponement of the imposition of sentence by the court for a few
days to permit the investigation and the report to be made. The value of
such investigations is that it gives the court complete and valuable per-
sonal, social, and economic data concerning the defendant, thus enabling
the court to determine more adequately and accurateLv what type of treat-
ment would best suit the needs of the particular case, and how long such

197

Gourts outside Milwaukee County—The psychiatric field
service of the State Board of Control is always available to
furnish examinations called for by the probation units. The
majority of judges do not avail themselves of the opportuni-
ties for presentence investigation. Where such investiga-
tions are made the results are generally presented in court
orally. It was estimated that in the Madison unit presen-
tence investigations are made in only about 10 or 15 out
of every 100 cases.

INVESTIGATIVE SERVICE IN SOME WELL KNOWN
PROBATION DEPARTMENTS

Many probation departments in the United States have
developed facilities for excellent investigation services. It
has been the good fortune of the majority of these units to
be situated either within the limits of a large city or in the
midst of a well-populated industrial area. Enlightened
public support and interest has made possible the employ-
ment of comparatively large staffs of probation officers, to-
gether with the indispensable clerical assistance. The prox-
imity to other social service agencies, the relatively greater
availability of medical, psychological, and psychiatric serv-
ices, and the larger revenues which a metropolitan area affords
have all contributed their part to the success and quality of
the service which these probation departments ofi'er. Ofli-
cers are almost invariably better paid and employed on a
full-time basis in these probation offices, so that a more com—
petent and interested personnel is engaged in applying and
developing the probation method.

But even where such salutary conditions prevail, a vari-
ety of factors serve to handicap the efforts of probation
officers in supplying a satisfactory and dependable investi-
gation service. Funds, though abundant in comparison
with those of the underdeveloped units, are still inadequate
to insure a complete, well-rounded investigation program
in all cases. The reluctance of many courts to grant sufii—

treatment would appear to be advisable. " * " Eventually, such presen-
tence investigations should be made for at least all persons convicted, who are
legally eligible for probation.” Annual Report, Probation Dep’t, Municipal
Court, Milwaukee, Wisconsin (1936).

198

cient time for the gathering of complete information before
passage of sentence results too often. in the presentation of
an incomplete picture of the defendant’s possibilities and
history.

A description of the investigation procedure of all the
well-organized probation departments scattered over the
country cannot be attempted in the space available. A few
departments have been selected for illustrative purposes.
Exclusion of any unit does not imply that it fails to offer
an acceptable or even an exemplary service in the field of
investigation, for several excellent units have been omitted.
But it is to be hoped that an examination of the investiga-
tive practices of those few departments which have been
regarded as particularly satisfactory by other writers in the
field will reveal: (1) Some standards and goals for the im-
provement of less well-conducted units; (2) the relatively
greater possibility of more exact justice to society and to
the individual which an adequate program of investigation
offers; and (3) the inadequacies and obstacles which beset
even comparatively well—developed units at present.

Los Angeles County—In Los Angeles County the work of
investigation is carried out by the court division, consisting
of 15 oflicers. Each officer is permanently assigned to one of
the several court departments trying criminal cases and
four men are attached to the master calendar department
which hears arraignments and pleas in criminal cases. These
oflicers hold one division meeting a month at which they
discuss their common problems and study the procedure used
in conducting investigations and in writing reports.

The usual practice of the superior court judges is to set
the date for the probation hearing two weeks from the date
when permission is granted the defendant to file an applica—
tion for probation. Consequently, if the application is im-
mediately transmitted to the probatiOn oflice, there will be
about 12 days available in which the officer can conduct his
investigations and prepare his report to the court. If, on
the other hand, there is any delay in transmitting the appli-
cation to the probation department, it is obvious that the
remaining time may be so limited as to prevent the comple-
tion of the investigation by the date set for the hearing.

199

In understaking the investigation, the officer first famil-
iarizes himself with the facts shown in the defendant’s
application and in the transcript of the record of the pre-
liminary hearing. Immediately upon receipt of the appli-
cation, steps are taken to obtain the record of the defendant
either from the police or from the sheriff’s bureau of iden-
tification or from both.88 As soon as the investigating ofli-
oer has obtained some of the background of the case an
interview is held with the defendant. If the defendant is
out on bail, he is notified to come to the probation oflice;
otherwise, this interview is conducted in the jail. Because of
the lack of privacy in both the general conference room of
the county jail and in the probation office when the inter-
view takes place there, it is difficult to establish a confiden-
tial relationship between the officer and the applicant.

A comprehensive work sheet usually serves as the outline
for the interview with the defendant. The work sheet calls”
for some 65 items or groups of information covering the
man’s heredity, environment, personal history, his previous
offenses, and the facts and circumstances surrounding the
present offense. In addition, the defendant is asked to
write out a narrative description of his offense and of any
other facts and circumstances he wishes to explain.

In opening the interview, the investigator first makes a
statement to the applicant making clear to him the func-
tion of the probation department in regard to his case,
pointing out that the probation oflicer is there to be helpful
and requesting the truthful cooperation of the defendant
in his own interest. Questions are then asked which usually
follow in detail the data called for by the work sheet, on
which the answers are recorded. When this series of ques-
tions is concluded the interview is usually at an end, except
for such additional questioning as may be necessary to clear
up obscure statements. Of particular interest to the inves-

"The responsibility for obtaining some of these data formerly rested with
each individual investigator, but in 1936, through WPA assistance, one man
nd two stenographic assistants were stationed in the police bureau and were
01er concerned with checking the records of applicants for probation.
hese workers prepared a transcript or summary of the reports and data in

e police files on the applicants under scrutiny. Their work constituted 8.
ea] time-saving device for the investigating oflicers.

73115—39—v0L. n 14

 

200

tigator are the reasons given by the defendant for the com-
mission of the present offense, and there is generally de-
tailed examination into this particular matter.

At this point the investigating officer has available all the
information that is of official record in the files of the police
or of the sheriff’s office, the defendant’s own story and his
answers to the questions on the work sheet. There is also
at the oflicer’s disposal the replies from letters of reference
sent out on the day the case was filed in the probation office.
Where time permits, the investigator proceeds to contact
other persons who are connected with the case or who are
interested in the defendant, seeking to expand the informa-
tion he has at hand and to verify that already given him,
particularly in regard to facts and statements supplied by
the defendant. Among those who are contacted, time per-
mitting, are the complaining witness, the peace officers who
acted in the case, the district attorney who handled the case,
the family and relatives of the defendant, and possibly his
employer. Where replies to the letters of reference indicate
any possible help from these sources, personal interviews are
arranged with some of these people.

Some 3 or 4 days before the date set for the probation
hearing, the investigating officer dictates the report to be
presented to the court. Each probation report commences
with a. face sheet which is filled out by the officer who has
conducted the investigation. Supplementary or additional
data are then dictated and this material when typed is
attached to the face sheet forming the complete report to
the court. The headings used in dictating the report are
as follows: (1) Previous arrests: In which is detailed the
defendant’s police record. (2) Present offense: This is a
brief summary of the offense and the circumstances imme-
diately connected with it. (3) Defendant’s statement:
This summarizes the defendant’s explanation of the offense
and any other facts he may have added about himself. (4)
Economic status: This includes the probation oflicer’s find-
ings as to the economic status of the defendant and his fam-
ily, covering his employment record and his possibilities
for future employment. (5) Comments: Here the probation

201

ofiicer comments on the salient facts in the case and presents
reasons which support the formal recommendation which he
makes. (6) Recommendations: These include the probation
officer’s recommendations and the suggested conditions under
which he thinks probation should be granted.

Each oflicer prepares his own report. Officers who serve
a particular judge have adapted their procedure and the
detail of the report to fit the desires of the judge whom
they serve. If the investigating oflicer is not experienced, he
confers with the director of the court division of the proba-
tion department concerning the report and the recommenda-.
tions to be made. In all cases which are of an unusually
complex nature, a conference between the investigating ofli-
cer and the head of his division is held.

After the report is prepared, it is given to the director of
the court division who checks it before it is presented to the
court. Usually the report is filed with the court a day or
two before the date set for the hearing so that the judge may
have the opportunity carefully to read over the facts pre-
sented. The attempt is made to include in the probation
officer’s report all the information which the officer believes
will be of value to the judge in reaching a decision. It is not
customary for the probation oflicer at the time of the hearing
to supplement the written reports with oral explanation or
further statements.

In any case involving the use of narcotics in which an in-
vestigation is made, a recommendation is not offered by the
investigating officer. The determination of the recommenda-
tion and the approval of the report to be filed with the court
in such cases is left to the director of the adult division, the
director of the court division, and the director of the nar-
cotics division in conference.

Baltimore City—In Baltimore, presentence investiga-
tions are not made in all cases because of the limited per-
sonnel. The probation department itself is keenly aware
of the need for an increase in its staff so that the work may
be reorganized on a scientific basis with regard to investiga-
tion and supervision.39

”Fourth Annual Report, 13robation Dep’t of the Supreme Bench of Balti-
ore City (1933) 30.

202

A period of 1 week to 10 days is allowed for inves-
tigation, and in an average presentence inquiry the proba-
tion officer spends a minimum of 13 to 15 hours on the
actual work of investigating and recording of the results.
This minimum does not include time spent by the officer in
going from place to place.40 In many of the cases investiga-
tions are made after sentence, but the Maryland statute appli-
cable to Baltimore permits the suspension of sentence and the
granting of probation even after incarceration has begun,‘1
and thus such investigations may still properly be termed
preprobation. An appreciable number of presentence in--
vestigations are made.

In many cases only a hasty study is made and the
results are reported orally to the court. As a rule, the
court follows any recommendation made by the probation
department. In 1934 the Baltimore unit made for the
criminal courts 277 complete presentence investigations, 47
postsentence investigations, and 487 hasty study or sum-
mary investig__g‘ations.‘12 According to the report of the de-
partment for that year, “Of the 837 criminal cases investi-
gated, and eliminating the 487 summary investigations (re—
ported orally and without complete data available), only
134 offenders, or 38 percent of those included in the remain-
ing 350 presentence, postsentence, and special investiga-
tions, were released on probation to the Department * * *.
The number of criminal cases assigned for supervision was
243. In 134 cases, or 55 percent, an investigation was made
before probation was granted; in 109, or 45 percent, no
prior investigation was made by the Department.” ‘3 When
it is pointed out that the vast majority of summary inves-
tigations (461) can be allocated to the three probation ofli-
cers of the colored division who, in addition to their duties
of investigation, had under their supervision 1,325 proba-

‘OId. at 14.

41 Md. Laws 1931, ch. 132.

42 Fifth Annual Report, Probation Dep’t of the Supreme Bench of Baltimore
City (1934), 15.

“Id. at 16.

203

tioners,44 the impossibility of anything but a hasty study in
those cases can readily be appreciated.

In 1935 the Baltimore probation department made 40
social investigations before sentence, 12 postsentence inves-
tigations, and 43 summary investigations. Of the last group,
7 were written and 36 were oral. Twelve of the defendants
as to whom presentence investigations were made received
probation and the remaining 11 were otherwise disposed of.
Only one of those socially investigated after sentence was
placed on probation. Seven of those given summary inves-
tigations received probation.45 No department investiga-
tions were made in 165 cases, or 89 percent of the total
number of probationers received in 1935.48 The probation
department will not ordinarily offer a recommendation to
the court where only a summary investigation has been
made."L7

Requests for postsentence investigations are occasioned by
various circumstances. “In some instances, where the court,
after trial and conviction and from what can then be
learned of the offender, determines to impose a substantial
sentence, the department’s investigation is ordered immedi-
ately. At other times, if additional information regarding
the sentenced offender is presented to the court, and it is felt
that, perhaps, the sentence is excessive, or change of institu-
tion should be made, the case is referred to the department
for report. When the reports are completed, the judge,
about 10 days before the end of the term of court, arranges
or a conference with the superintendent of prisons of Mary-
and, the chief medical officer of the supreme bench, and
he chief probation officer, to discuss each postsentence in-

estigation and review the previous action of the court.

e data pertaining to each offender is studied. This in-

ludes, in addition to the reports of the department, the
nstitutional record and psychiatric examination made by
he chief medical officer if he has contacted the inmate.

“Id. at 15; see also p. 7.

gSixth Annual Report, Probation Dep’t of the Supreme Bench of Baltimore
ity (1935) 8—9.

46 Id. at 19.

47 Ibid.

204

The conference decision may result in no change of sen-
tence, reduction of sentence, suspension with or without
release on probation.” ‘3

Where a complete probation investigation is made in Bal-
timore, the case jacket contains all the vital information
obtainable concerning the defendant. The record of the in-
vestigation calls first for a brief summary of the present
case, giving names of co-defendants, attorneys, the judge, and
the offense charged. The plea or verdict is noted and the
sentence and disposition after investigation. Information is
then recorded concerning previous court record, education,
and employment history. Names of dependents are given
and information regarding defendant’s economic responsi-
bility, religious training, family life, and neighborhood,
spare time activities, and personality traits is noted. Physi-
cal and mental condition may be rated either on the basis of
clinical examination or the personal observations of the in-
vestigating officer. There follows a more complete account
of the offense, offering circumstances in mitigation and
aggravation.

The personal assets and liabilities of the defendant are
rated and some estimate is made as to the probable causes
of his delinquency, followed by the recommendation of the
probation department. A more complete account of the
previous court record is then presented, including the pres-
ent charge and disposition. A statement by the prosecuting
witness, together with the defendant’s own statement, is in-
corpOrated in the report. A personal history in narrative
form follows, concluding with the opinions of others con-
cerning the defendant and the probation officer’s character
evaluation. Finally, on a case analysis sheet is recorded the
defendant’s name, the officer’s initials, and the department
case number. The problem of the case is briefly stated, causal
factors are concisely enumerated, and a summary of the plan
of treatment to be attempted is noted.49

H ennepz'n County, Mama—As previously noted, 50 percent
of the total criminal convictions in Hennepin County,
Minn., are investigated, and in 1935, 53.37 percent of those

‘8 Fifth Annual Report, op. cit. supra note 42, at 28.
”Id. at 17—25.

2.05

investigated were placed on probation.50 In all criminal
cases the investigation is conducted by the assistant chief
probation officer, with the part-time help of one other officer.
Of the 11 judges in the district, 1 judge passes sentence with-
out any inquiry into the defendant’s character and circum-
stances; all of the remaining 10 judges request an investi-
gation before passing sentence.
’ As the first step in the investigation procedure, the prose-
cuting attorney turns over to the investigating officers the
evidence in the case and the statement of the complaining
witness. Contrary to the procedure in other Minnesota coun-
ties, the interview with the defendant here does not precede
the other phases of the investigation. The investigator clears
the case with the local social service exchange and conducts
as complete a community examination as possible, attempt-
ing to contact the employer and any other persons interested
in the defendant. It has been the experience of investigating
officers in this district that little help is to be expected from
the references offered by the defendant himself. A home
visit is made by the investigator and he checks the files of
the local police to complete the criminal record of the de-
fendant. When part of the investigation must be done by
correspondence, it is handled with all possible dispatch in
order that the report to the court may be returned within
ten days or two weeks. A. permanent record is kept of the
'nvestigation report.
The practice in this county excludes the possibility of pro-
bation for defendants convicted by a jury, after a plea of not
uilty, except in rare instances. This practice is due to the
heory, held by those responsible for the administration of
robation in Hennepin County, that this form of treatment
hould be given only to “penitent” offenders and that a plea
f not guilty, followed by conviction, does not evidence a
roper or very hopeful spirit of contrition.

Erie County, N. Y.—In New York the Erie County pro-
ation department, though located in Buffalo, serves a wide
ural area. Since adequate probation work in rural com-

unities is notoriously rare, the work of this department is

50 See ante, p. 189

206

especially worthy of notice. The service of the department
to the rural areas in the county wasstarted about 20 years
ago, and has developed to the point where there are now
10 probation officers assigned to that particular branch of
the work. The county of Erie, outside of the city of Buf-
falo, has a population of about 207,000 and covers an area
of more than 1,000 square miles, containing 27 towns, in
which are located two third-class cities and several villages.
Of the hundred-odd justices of the peace and police justices
serving rural Erie County, about half engage in the han-
dling of criminal matters. These judges hear thousands
of criminal cases each year, and of the total number of per-
sons convicted in 1937 in these particular courts, 537 were
placed on probation to the Erie County department.

Whenever a judge directs that a presentence investiga-
tion be made, after the department has had at least three
days in which to complete the investigation, its report usu-
ally includes facts concerning the following: (a) The legal
history of the offender, including the offender’s previous
criminal court and institutional record, a statement of his
present ofl'ense, a statement of the complainant, and the
mitigating or aggravating circumstances of the offense; (b)
the offender’s social history, which includes information
regarding the offender’s personal history, his education and
early life, his family, home life and neighborhood condi-
tions, his employment history, his character, habits, and
associates, his religious Observances and training, his men-
tal and physical condition, the social agencies, institutions,
or individuals interested in the family, and a summary of
the entire investigation. In 1934 a total of 47 2 social investi-
gations were made by the Erie County probation department,
of which 109 were made for town and village courts.51

It is the practice of the Erie County department to offer
recommendations to the magistrates in the rural courts

51 Annual Report of the Probation Dep't. County of Erie, New York (1934) 4.
“The work of the adult division in the various justice of the peace and
police justice courts throughout the county constitutes one of our major activi-
ties. Last year [1933] 40 magistrates placed 448 individuals in our charge.
Our work in rural sections has developed to the point where we are told by
probation authorities that Erie County today supports a rural probation de-
part'ment that is one of the best, if not the best, in the United States.” Id. at 5.

207

either in writing as a part of the presentence investigation
or orally before sentence. The recommendations of the
department are welcomed by the magistrates.

New Y ark (Jaunty court of general session8.—The divi-
sion of investigation of the New York County Court of
General Sessions is in charge of a deputy chief probation
oflicer, who is assisted in the direction of this division by
two assistants who act as the case supervisors. Nineteen
probation ofiicers are assigned to this unit. The department
has attempted to adhere to a standard case load of 12 inves-
tigations monthly, but the volume of work has steadily in-
creased; and with this increased volume, more and more
cases have been thrust upon the officers assigned to the
investigation division.

Every offender arraigned in this court who either pleads
guilty or is convicted of a crime, is referred to the probation
department for investigation. The investigation is initi-
ated by a court order directing the department to conduct
such an investigation and to submit its report to the court.

In the conduct of the investigation, the following meth-
ods are used: Triplicate fingerprints of the offender are
taken by the police fingerprint expert assigned to the court.
The probation officer who is assigned to the investigation
division for the purpose of checking criminal records com-

ares the fingerprints with the records at police headquar-
rs, the New York City department of correction, which
ontrols the city institutions, the parole commission of the
ity of New York, the division of parole of the State of
ew York, and the magistrates courts. In each case an
riginal fingerprint record is forwarded to the Bureau of
nvestigation of the United States Department of Justice
t Washington.

In addition to this search of the criminal records, the
ecord officer also visits nine other agencies to ascertain
hether the offender, as a juvenile, appeared in the chil-
ren’s court or was committed through the department of
ublic welfare to institutions caring for children, or by the
card of education as a truant.

Every case is cleared through the social service exchange,

nd if the offender came to New York from another town

208

or city, the case is cleared through the social exchange in
that vicinity, to ascertain whether“ he or his family are
known to the social agencies there.

During the interview with the offender the probation ofli-
cer exerts every effort to induce the offender to give a
detailed and a truthful statement of his life and the con-
ditions under which his life developed. He is urged to dis-
cuss freely his childhood, his family, his employment and
his reactions to it, his leisure, his religious Observances, his
ethical concepts, and the mental attitudes which prompted
him to engage in criminal activity.

The next step for the probation officer after he has ini-
tiated his investigation is to prepare an outline of history.
This outline was formerly submitted to one of the cooperat-
ing hospital clinics or to the city prison physician in order
that a psychiatric and physical examination of the offender
might be conducted. All persons confined in the city prison
were examined in that institution, and those at liberty on
bail were referred to the various clinics in the city.

Since the establishment of the court of general sessions
psychiatric clinic in 1931, psychiatric, psychological, and
physical examinations of every ofi'ender convicted in the
court of general sessions are made there. This clinic is
located in the Criminal Courts Building, in close proximity
to the offices of the probation department.

The field of investigation comprises an analysis of the
offense, and an evaluation of the life of the offender and
of the factors which converged to create the offender. This
includes interviews with teachers and school nurses, a visit
to the defendant’s home, interviews with the family, his
landlord, neighbors, friends, communication with all social
agencies which have had contact with him or his family,
and an analysis of the court, institution, probation or parole
records, if he has previously been arrested or convicted of
an offense. His employers are interviewed and their rec-
ords of the defendant are studied and checked to establish
the legitimacy of his employment and to evaluate his reac—
tion to the type of work in which he was engaged. His
fellow employees are interrogated to determine his relations
with them and his reactions during employment hours.

209

The leisure-time activities of offenders, when they are
more or less free to come and go as they please and choose
the recreation they desire, are carefully investigated.

The report of the psychiatrist is studied in order that a
diagnosis of his personality may aid to explain the defend-
ant’s conduct in terms of causation and motivation.

All the information obtained is recorded upon the field
sheet of the case and from this the report to the court is
written. The department furnishes copies of these reports
to the institutions to which offenders are committed in order
that the findings may be utilized in institutional plans of
treatment. A copy in each case is also furnished to the
State division of parole and to the city parole commission.52

PRESENTENCE INVESTIGATION IN THE FEDERAL
PROBATION SYSTEM

The Federal probation service has been in operation less
than 15 years but intelligent centralized supervision has
brought about a development in the character of the work
accomplished which places this service among the best in
he country. This is perhaps the more remarkable in that

ederal probation covers a wider geographical area and in-
ludes more individual courts than any other centralized
robation system. Largely because of the centralization of
.dministrative functions which has permitted the making of
lans for the system as a whole, the development of the Fed-
ral system has been more uniform and capable of appraisal
ihan any other in the country.

The actual extent of presentence investigation of persons
’eleased on probation by the Federal district courts has been
ecorded in the annual reports of the Bureau of Prisons for

number of years. The Bureau has realized from the first
hat adequate presentence investigations are fundamental in
he proper administration of the probation system. The
rend has been both to increase the number and better the
uality of investigations as increased personnel have been

ade available. However, investigative services in many
istricts are still far from adequate, due to insufficient per-

” From: Halpern, A Decade of Probation (an unpublished manuscript) 42-46.

210

sonnel and heavy case loads. It is to be hoped that facilities
will be augmented so that every district judge will have full
information as to every convicted offender in order that an
intelligent choice of treatment may be made.

The reports of the Bureau of Prisons, until the fiscal year
of 1936—37, divided presentence investigations conducted by
Federal probation officers into three categories based on the
intensity and thoroughness of the inquiry. Although the
differentiation by types is no longer reported, it is worth
while to explain the three types, since in practice investiga-
tions tend to fall into one of the three classes.

Type AAA consists of a complete and thorough study of
the defendant. Visits are made to the defendant’s home and
community to verify information and obtain a well-rounded
picture of environmental influences, associates, and habits.
A written report is made to the court, covering the personal
and family history of the defendant, his criminal and de-
linquency record, economic and physical condition, and such
other factors as may bear upon the advisability of probation-
ary release. Recommendations are made in some districts,
but this largely depends upon whether or not the particular
judge requests such advice.

Type AA, or partially complete investigation, consists of
the same information as that outlined for type AAA, except
that home and community visits are not made.

The third, type A, is merely a hasty study of the defend-
ant, with only an oral report to the court. Few pertinent
facts, beyond those that can be obtained on short notice, are
available.

In the fiscal year 1933—34, a total of 7,531 persons were
received for probation supervision from Federal district
courts. During the same year, 6,544 presentence investiga-
tions were made for the courts.53 But the official figures
do not reveal the relation between these investigations and
probationary release. In other words, it- is impossible to

“Federal Olfenders, 1933-34, p. 264, table 8. The presentence investiga-
tions were distributed as follows: Type AAA (complete study), 3,079; type
AA (partial study), 2,073; type A (hasty study), 1,392. The same table
shows that slightly less than 6,000 additional investigations were made
after release on probation for the purpose of furnishing a basis for super
vision. About three-fifths of this number constituted a “partial study.”

211

determine what percentage of the number of persons re-
leased on probation was subjected to a presentence investi-
gation. If it is true that the primary purpose of a pre-
sentence investigation is to aid the court in selecting the
proper treatment, it seems obvious that the statistics on
the extent of Federal probation service should reveal the
relation between investigation and release on probation.
The defect noted above for the 1933—84 statistics was
remedied in the report for the following fiscal year. It is
possible to determine what percentage of probationers re
ceived for that year was subjected to a presentence investi»
ation. Moreover, the type of investigation made is shown
ccording to the offense, thereby permitting a comparison
f the relative frequency of investigation according to the
ype of crime committed.“
In 1933-34 a total of 9,738 presentence investigations
ere made, divided as follows: Complete study, 4,821; par-
ial study, 2,929; hasty study, 1,988. As between types of
vestigation, the complete study classification increased
0th in actual number and in percentage of total investiga-
ions over the figures for the preceding year.
Of the total of 8,482 probationers received for supervision
uring the fiscal year 1934—35, 4,276, or 50 percent, were
vestigated prior to release. According to type of investi-
ation, the distribution was as follows: Complete study,
,299; partial study, 1,358; hasty study, 619. Thus it ap-
ears that about half of the number of persons released on
robation were investigated before release, and it also ap-
ears that about 44 percent of the persons investigated
fore sentence were placed on probation.
There appear to be no particularly significant variations
the frequency of investigations according to crime com-
itted by probationers. Quite uniformly, the percentage for
ch type of crime seems to be about the same. However,
e picture is not complete, as no figures are given showing
e nature of the crime committed by persons who were in-
tigated but did not receive probation. Were such figures
ailable, it might be possible to draw some conclusions re-

I“Federal Oflenders, 1934—35, pp. 182, 361.

212

garding the basis for the preliminary selection of cases for
investigation. v

The number of presentence investigations in the fiscal year
1935—36 5‘5 totalled 11,607, distributed as follows: Complete
study, 6,096; partial study, 3,596.; hasty study, 1,915. Out
of a total of 12,322 persons received for supervision during
the year, 6,113, or 50 percent, were investigated before re-
lease. Of this number, a complete study was made in 3,110
cases, a partial study in 2,301, and a hasty study in 702.
While the percentage of probationers investigated remained
the same, yet the percentage of persons investigated who
were placed on probation increased from 44 percent in 1934——
35 to about 53 percent in 1935—36.

The 1935—36 compilation introduced a new table showing
the type of presentence investigation by judicial district.
The table is set out below in abridged form, and it clearly
shows-the great variation from one district to another, both
in the extent and type of investigation made. Although
these discrepancies are partially explained when it is con-
sidered that probation is a relatively new device in many
districts and that there is a lack of sufficient personnel in
some areas to permit adequate investigation, yet it would
seem that there is room for a considerable improvement in
the use of presentence investigations in nearly all judicial
districts.

TABLE 1.—Federal probationers subjected to presentence investigations 1

 

1932—33 1933-34 1934-35 1935-36

 

Number of presentence investigations:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Type AAA- ...... 4, 624 3, 079 4, 821 6, 096
Type A A 3, 762 2, 073 2, 929 3, 596
Type A 2, 600 1, 392 1, 988 1, 915
Total- . ...... 10, 986 6, 644 9, 738 11, 607
Probationers recelved from courts ................ 16, 907 7, 531 8, 482 12, 322
Problationirskifivestigated before release: ) 3
. ype 2 (a) 2, 299 3,110 :
Type M ii) (1) 1, 358 2, 301 '
Type A 0) (3) 619 702
Total 4, 276 6,113

 

I Derived from Bureau of Prisons statistics.
1 No data.

55 Federal Offenders, 1935—36, pp. 152, 294.

213

TABLE II.———Type of presentence investigation of Federal probationers
received for supervision, by judicial district.- 1935—361

 

Presentenoe investigation

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

None, or
goal no {sport
, 0 ' as pre-
Judicial district troners Type Type sentence
received Total AAA A A Type A mvesti-
gation
Alabama: .
Northern ............... 278 276 93 113 70 2
Middle 159 149 14 38 97 10
.anfhorn 99 94 4 90 5
Arizona .................... 89 32 19 .......... 13 57
Arkansas:
Eastern ________________ 126 116 13 103 .......... 10
Western ................ 159 156 156 .......... 3
California:
Northern ............... 108 88 11 56 21 20
Southern ............... 282 136 112 22 2 146
Colorado ................... 36 17 15 2 19
Connecticut ................ 155 11 10 1 .......... 144
Florida:
Northern ............... 79 21 8 15 35
Southern ............... 259 179 103 29 47 80
eorgla:
Northern ............... 180 177 70 89 18 3
Middle ................. 276 168 136 16 16 108
Southern ............... 205 93 24 54 15 112
daho ...................... 15 5 2 1 2 10
Illinois:
Northern ............... 252 55 55 197
Eastern ................ 121 35 30 2 3 86
Southern ............... 111 109 86 21 2 2
dlana:
Northern _______________ 87 67 62 4 1 20
Southern ............... 54 28 27 1 26
owa:
Northern _______________ 19 1 1 18
SOUthern _______________ 8 8
ansas ..................... 317 315 315 .......... 2
entuclry:
Eastern ________________ 703 18 8 9 1 685
Western ................ 485 195 133 62 290
uisrana:
Eastern ________________ 99 54 39 12 3 45
Western ................ 59 57 57 2
sins 128 116 108 4 4 12
aryland __________________ 23 16 16 7
assachusetts ______________ 360 360 345 6 9 ..........
ichigan:
Eastern ................ 99 91 87 4 8
Western ________________ 86 2 2 ........... 84
innesota .................. 245 198 108 89 1 47
ississippi:
Northern ............... 59 53 1 23 29 6
Southern ............... 243 3 2 1 240
issouri:
Eastern 109 100 82 17 1 9
Western ................ 161 52 51 1 109
ontana 272 22 22 250
nhmsim 76 75 19 39 17 1
evade .................... 99 44 29 15 55
ew ampchim 66 54 53 1 __________ 12
aw Jersey _________________ 158 36 22 14 .......... 122
ew Mexico ________________ 57 57 25 13 19 ..........
ew York:
Northern _______________ 143 98 49 38 11 45
‘ aster-n 137 76 73 3 .......... 61
“m"hn'n 297 87 87 210
Western ................ 172 49 44 3 2 123
orth Carolina:
astern 165 47 39 8 118
Middle 246 44 28 7 9 202
Western ................ 176 84 30 50 4 92

 

 

1Derived from Bureau of Prisons statistics.

 

214

TABLE II.—Type of presentence investigation of Federal probationers

received for supervision, by judicial district: 1935—36—Continued

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Presentence investigation None, 0,
Total no treport
. pro 21- as 0 pre-
Judlcial district “(maria T t 1 Type Type T A sientezice
receive 0 a ype nves 1-
AAA _ AA gation
North Dakota .............. 62 21 15 6 41
Ohio: Southern ............. 119 16 15 1 103
Oklahoma:
Northern _______________ 210 210
Eastern 457 448 448 9
Western ................. 270 19 17 2 251
Oregon _____________________ 24 18 16 2 6
Pennsylvania:
Eastern ................ 295 8 6 2 287
Middle 188 152 25 85 42 36
Western ................ 243 141 57 84 102
Rhode Island ............... 24 20 17 3 4
South Carolina:
Eastern ................ 50 1 1 49
Western ................ 97 73 24 27 22 24
South Dakota 99 29 5 24 70
Tennessee:
Eastern 107 89 57 27 5 18
Middle 146 146
Western 20 20 18 2
Texas:
Northern 254 28 4 1 23 226
Eastern- 84 83 45 38 v 1
.anthm'n 186 31 23 l 7 155
Western ................ 101 47 45 1 1 54
Vermont ................... 23 22 13 1 8 1
Virginia:
Eastern ................ 139 11 2 6 3 128
Western ................ 113 78 4 71 3 35
Washington:
Eastern ................ 20 7 5 2 13
Western 110 10 1 3 6 100
West Virginia: Southern---_ 324 208 206 1 1 116
Wisconsin: Western 99 39 26 9 4 60
Wyoming 49 45 35 4 6 4
Puerto Rico- 12 10 5 5 i __________ 2
Tom] 12, 322 6, 113 3, 110 2, 301 702 6, 209

 

 

 

 

 

 

 

 

In the fiscal year 1936—37, the number of presentence
investigations totaled 14,126, which number exceeded the
total for any previous year. Of the 12,489 persons released
on probation, 6,618, or 53 percent, were reported as receiv-
ing presentence investigation.68 The differentiating of pre—
sentence investigations as to types AAA, AA, and A, based
on the relative intensity of the investigation, was discon-
tinued in the Federal probation report for 1936—37. N o
useful purpose was served by classifying presentence inves-
tigations according to type because the officers in each Fed-

“Federal Oflenders, 1936—37, pp. 175, 312. The percentage of those re-
leased on probation who were investigated before sentence varied from a
fraction of 1 percent in some judicial districts to nearly 100 percent in others.

215

a1 probation unit were free to evaluate the intensity of
e investigations they performed. The result was that the
assifications into the three types became meaningless be-
use it was found that some officers classified their investi-
ations indiscriminately and did not follow the criteria
tablished by the Bureau of Prisons.

An increase in the size of the Federal probation staff,
upled with a more discriminating selection and the train-
g of personnel, are planned for the future. When these
ans are realized, undoubtedly there will be an increase in
e number of probationers who are investigated for re-
se in practically all judicial districts. When this is done,
e of the most serious limitations of the Federal probation
stem as it operates today will have been remedied.

:3 ; SUMMARY
Examination of representative probation departments in
parts of the country reveals the need for a more nearly
plete and accurate system of record-keeping than is at
esent maintained“! Until reliable records of probation
rk are maintained, any survey of the progress, needs, and
ievements can result in no more than a shrewd guess.
here information has been made available as to investi-
tive practices in various probation departments in all
ts of the nation it has led to the conclusion that at the
sent time this phase of probation work is being carried
in an uneven and unsatisfactory manner. Here and
re a bright spot appears on the otherwise dismal canvas,
t only in a few scattered probation departments is inves-
ation regarded as a vital, indispensable, and basic
iction.
ide variations in the quality of the service are preva-
t within the boundaries of a single State. Several pro-
ion departments, all located in large cities or serving
tropolitan and industrial areas, offer adequate and uni-
mly good presentence investigations. In many more de-
rtments the beginnings of a good service can be discerned.
e annual reports on probation work from many jurisdic-
ns speak of contemplated improvements when the neces-

See ante, ch. V.

7 3115—39—v0L. II 15

 

216

Sary funds and personnel to carry them into effect become
available. But in far too many courts, the practice is to ‘
place unreasonable and ill-founded reliance upon the prose-
cutor’s office and the efforts of local peace officers to secure
needed presentence information. There is also some evi-
dence that even in jurisdictions where the law requires
investigation before sentence this is not conducted in all
cases.

For the most part the faults and insufliciencies of inves-
tigative practices cannot be laid at the door of inadequate or
wrong legislation. The part which statutory provisions can
play in this phase of probation work is after all extremely
limited. N o doubt the enactment of provisions requiring
minimum periods of one week to ten days for the prosecution
of an investigation might work some amelioration in the
practices of many jurisdictions. However, a good investiga-
tion service can be attained within the limits of a general pro-
bation law which makes no specific or detailed requirements as
to investigation. This has proved true in Pennsylvania where,
although the statute is silent as to investigation, some of the
local courts have evolved a rather complete service in this
field. Again, in the case of the Federal probation service,
this fact has been demonstrated. The Federal probation
act makes only a general requirement. as to investigation:
That the officer shall investigate “any case referred to him
for investigation by the court in which he is serving and to
report thereon to the court.” 58 The practice is, however, to
conduct presentence investigations in most cases and at least
during the last five years there has been an appreciable in-
crease in the number of such investigations made and a de-
cided improvement in the quality and completeness of the
report presented.

It is believed that, with a few scattered exceptions, exist-
ing legislation with regard to this phase of probation is
adequate. Necessary improvements will result more cer-
tainly from continued education of the bench to the need
and value of this service, an increase and improvement in
the personnel of probation departments and augmentation of
the funds made available for the work.

5318 U. S. C. § 727 (1934).

ill“ 1]

CHAPTER VII ., 3 55;"

HE CONTROL OF PROBATION ERS: CONDITIONS
OF RELEASE

THE POWER TO PRESCRIBE CONDITIONS

N ature of p0wer.—The power to fix the terms and con-
itions under which probation must be served is, in most
tates, vested in the courts, to be exercised by the court
ther alone or in conjunction with an administrative agency
charge of the State’s probation system. The extent of
e court’s power varies from State to State and includes
possible ways of dealing with the subject. At one ex-
eme is Utah where the court apparently possesses the
1e and complete authority to determine the conditions
der which probation is to be served; 1 at the other is
aryland where the circuit and criminal courts may im-
se only those conditions which deal with matters enu-
erated in the probation statute.2
In some States the statutes contain a mere grant of power
the courts to prescribe and impose conditions in granting
obation without any further specification as to what such
nditions may be.3 In such States the extent of the courts’
scretion in particular cases will depend upon the atti-
des of the appellate courts of the State as to the pro-
iety of the particular terms sought to be imposed. In
orgia the court may allow probation “in such manner and
such terms as it may see fit.” 4 Therejit has been held
thin the court’s discretion to impose the typical and
al conditions that the probationer indulge in no vicious
duct, avoid disreputable places and persons, report to
e probation oflicer, and not leave the jurisdiction of the

Utah Rev. Stat. (1935) § 105—36—17.

Md. Code Ann. (Bagby, Supp. 1929) art. 27, § 577, Kelley v. State, 151 Md.
133 At]. 899 (1926) ; Klein v. State, 151 Md. 484, 135 Atl. 591 (1926).
Ariz. Rev. Code Ann. (Struckmeyer, 1928) § 5105; D. C. Code (1929) title
§ 425; Ga. Code (1933) § 2702; Minn. Stat. (Mason, Supp. 1936) § 9937;
h Rev.Stat.Ann.(1933) § 105—36-11

Ga. Code (1933) § 27—2702.

(217)

218

court without permission.5 In addition certain less usual
conditions have been imposed by Georgia courts and held
valid as in the case of a condition that the probationer
not drive an automobile during the period of sentence6
or of an order included in the sentence that “defendant
during his probation is to make no remarks against the
sheriff of Dooly County or any other witness that testified
against him.” 7 A condition that the probationer leave At-
lanta and go to Alabama has also been held valid.8 In
North Dakota conditions are within the discretion of the
court, except that persons punishable by imprisonment in
the penitentiary must also meet the regulations of the
board of administration.”

In other States the statutes specify certain conditions
which the court may impose, but these are not exclusive of
any others which the court in its discretion may deem desir-
able.10 In California the court may grant probation on
“such terms and conditions as it shall determine.” 11 As a
condition of probation the defendant may be imprisoned in
the county jail for a period not exceeding the maximum
term fixed by law; or defendant may be placed in road
camps or jail farms, Where they are available.12 The con-

5Dz‘ekson v. Dunway, 162 Ga. 210, 132 S. E. 911 (1926) ; Shamblrin v. Penn,
1.48 Ga. 592, 97 S. E. 520 (1918) ; Jones v. State, 27 Ga. App. 631, 110 S. E. 33
(1921).

6Jones v. State, 27 Ga. App. 631 (1921).

7Morr1's v. State, 44 Ga. App. 765, 162 S. E. 879 (1932).

8Roberts v. Lam-y, 160 Ga. 494, 128 S. E. 746 (1925). But it Was said in
this case that probation served outside the State would not be a “legal pro-
bationary discharge.”

9N. D. Comp. Laws Ann. (1913) §§ 10952, 10953, 10954.

10 Ark. Dig. Stat. (Crawford & Moses, Supp. 1927) § 3229a; Cal. Pen. Code
(Deeriug, 1937) § 1203.1; Conn. Gen. Stat. (1930) § § 6518, 6519, except
mandatory provisions as to prostitutes, id. § 6226; Ind. Stat. Ann. (Burns,
1933) § 9—2210, except for mandatory conditions in nonsupport cases, id.
§ 10—1406; Ky. Stat. (Carroll, 1936) § 979b-7; Mass. Gen. Laws (1932) ch. 273,
§ § 3, 5. 13, 16, 18, 22, ch. 276, § § 85, 87, 92, ch. 279 § § 1, 1A; Neb. COmp.
Stat. (1929) § § 29—2212, 29—2215; N. J. Laws 1929, ch. 156, § 3; N. Y. Code
Cr. Proc. § § 483 (2), 483 (3), 932, except mandatory conditions as to prosti-
tutes, id. § 891—a; N. C. Laws 1937, ch. 132, except mandatory conditions as to
prostitutes, N. C. Code Ann. (Michie, 1935) § 4362; Ohio Code Ann. (Throck-
morton, 1936) § § 13452—1, 13452—4, 13452—8; Ore. Code Ann. (Supp. 1935)
§ 13—1146; Pa. Stat. (Purdon, 1936) title 19, § 1052; R. I. Gen. Laws (1923)
ch. 403; Vt. Pub. Laws (1933) § 8873, except mandatory conditions as to
prostitutes, id. § § 8616, 8617; Va. Code (Michie, 1936) § 1922b; W. Va. Code
Ann. (Michie, Supp. 1933) § 0134; 18 U. S. C. § 724 (1934).

11 Cal. Pen. Code (Deering, 1987) § 1203.1.

12 Ibid.

219

'tions most commonly enumerated for the guidance Of the
urt in this type of statute are that the probationer must:
oid injurious or vicious habits; avoid persons or places of
'sreputable or harmful character; report to the probation
cer as directed; permit the probation officer to visit at his
me or elsewhere; work faithfully at suitable employment
far as possible; remain within a specified area; pay a
e in one or several sums as directed by the court; make
paration or restitution to the aggrieved party for the
mage or loss caused by his offense, in an amount deter-
'ned by the court; support his dependents.13 In many of
e States the only conditions suggested by the statutes are
ose relating to probation to permit payment of a fine or
make restitution to injured parties.14
In many States the power to prescribe and impose terms
d conditions has been granted to the courts by statute,
t the task of prescribing a set of rules for the guidance
courts engaged in fixing the terms of probation has been
dertaken by local agencies or taken care of in the rules of
rt of the particular judicial district.15 Such is the case
Colorado where rules of court cover the subject in cer-
n districts and in Delaware where the same procedure has
h followed with regard to Wilmington.16 In Maine a
cial statute regulates probation in Cumberland County
er which statute probation may be granted upon any con—
ions;17 apparently, courts elsewhere in the State of Maine
sess the same freedom of choice as to conditions, al«
ugh the statute does not in terms grant this power.
number of the States have by statute set up certain
ms and conditions which courts must impose in granting

N. C. Laws 1937, ch. 132; see also 111. Stat. Ann. (Jones, 1936) §§ 37—774,
75; Ky. Stat. (Caroll, 1936) § 979b—7; Minn. Stat. (Mason, Supp. 1936)
37; Neb. Comp. Stat. (1929) § 29—2212; N. J. Laws 1929, ch. 156, § 3:
Code Ann. (Supp. 1935) § 13—1146.

Maine, except Cumberland County, Me. Priv. Laws 1933, ch. 231; Me. Rev.
. (1930) ch. 147, § 22; id. ch. 346, § 3. Massachusetts, payment of fine,

ment of other moneys, support, restitution or reparation of civil damages,
8. Gen. Laws (1932) ch. 279, § 1, as amended, § 1A, ch. 273, § § 3, 5, 13,
18, 22, ch. 276, § 92; Ohio, Ohio Code Ann. (Throckmorton, 1936)
451—8; Pennsylvania. I’a. Stat. (Purdon, 1936) title 19, § 1052.

Colorado, see Rules of Court, 2d, 3d, 7th, 9th, 10th, 14th Districts; Delaware,
s 01' Court of General Sessions, Wilmington I, § § 1, 6, 7.

Me. Priv. and Spec. Laws 1905, ch. 346. § 5.

Me. Rev. Stat. (1930) ch. 147, § 12.

220

probation. However, in many of these States, the require-
ment of imposition of such conditions does not preclude
the court from prescribing and imposing additional terms
and conditions which it may deem to be suitable or neces-
sary in a particular case. The rules of local courts in Colo-
rado mentioned above set up many mandatory conditions.18
In Connecticut persons convicted of prostitution and hav-
ing a venereal disease must be placed on probation only
upon such terms as will insure medical treatment; 19 this
provision is also to be found in the laws of New York,20
North Carolina,21 and Vermont.22 The same States23 require
that female probationers must be placed under the super-
vision of a woman oflicer only.“ Illinois 25 and Michigan 26
make mandator , certain of the conditions generally im-
posed by courts everywhere. In Kansas bonds are required
of persons admitted to probation except in the district and
common pleas courts where the bond is compulsory only
as to persons convicted of felonies.27 In Tennessee a court
may not grant probation to a convict applying for it until
he has secured or paid all of the costs accrued at the instance
of the State in the action against him.28

Another method of fixing the terms and conditions of pro-
bation is that found in IVisconsin,29 where the court has no
power over adult felons placed on probation, except in Mil-
waukee County, and the board applies the same terms and
conditions to probationers in its care as it does to parolees.
However, in addition to the terms prescribed by the board
the court may require the probationer to pay the costs or to
make restitution.80 In States where the power to grant
probation is not possessed solely by the courts but may be

15 Supra note 15.

19 Conn. Gen. Stat. (1930) § 6226.

'-’°N. Y. Code Cr. Proc. § 891—a.

21N. C. Code Ann. (Michie, 1935) § 4362.

23Vt. Pub. Laws (1933) § 8616.

1’3 Supra, notes 19, 20, 21, 22.

‘-“ Idaho Code Ann. (1932) § 19-2503.

25 Ill. Stat. Ann. (Jones, 1936) §§ 37—774, 37—775.

26Mich. Comp. Laws (Mason, Supp. 1935) § 17373.

27 Kan. Gen. Stat. Ann. (1935) § 62—2205, State v. Harris, 116 Kan. 387, 226
Pac. 716 (1924).

28Tenn. Code Ann. (Williams, 1934) § 11802.1.

29Wis. Stat. (1935) § 57.02. And see report on Parole.

”Id. § 57.01 (1)

221

ercised in certain instances by either the courts or by
arole boards,3-1. local probation boards,32 dr the prison
oards,83 or by such boards alone, the terms and conditions
f probation are generally prescribed by the administrative
gency of this type in a particular State rather than by
e courts.34 ,
Summary.—~L_’l_‘_he majority of States have vested their
urts with the power to fix the terms and conditions of
robation. In some this power is limited in an affirmative
ay by statute; in others the statute is either silent as to the
ature of the conditions which the court may impose or it
ts up some standards which, however, the court need not
ply in every case. Apparently this method has proved
irly satisfactory 1n the States where it is in use as seems
be borne out by the fact that among those best acquainted
ith probation needs and problems there has been little dis-
ssion of the power to fix the terms of probation. [Some
ates have removed from their courts the power to impose
nditions and have placed it in the hands of an administra-
e agency. In all of these instances the entire control of
obationers, after the determination by the court, of the
estion of probationary release, is turned over to such ad-
'nistrative boards. However, the fact that they have suc-
eded to the courts’ former power to fix terms and condi-
ns of probation cannot be considered evidence that this
rticular phase of the probation procedure has been badly
ndled by the courts. No State seems to have left the de-
mination of conditions in particular instances to the dis-
tion of the probation officer, although in at least one juris-
tion the officer, in rendering the report of his pre-
tence investigation, may advise the court as to suitable
ditions.35

The parole board exercises over bench paroles “all the powers possessed
said board over prisoners paroled by it.” Iowa Code (1935) § 3802.

E'. g., Mo. Stat. Ann. (Vernon, 1932) §§ 8518, 14825—14829.
3Mont. Rev. Codes Ann. (Anderson & McFarland, 1935) §§ 12083, 12265,
80, Em parte Sheehan, 100 Mont. 244, 49 P. (2d) 957 (1935) (Any provision
a judgment suspending execution of sentence “on condition” has no force
er than to suspend sentence); Wash. Rev. Stat. Ann. (Remington, Supp.
6) 5 10249-6.

Washington, supra note 33.

In its discretion the court may order information concerning the personal
and dependents of the defendant “and such other facts as may aid the
rt as well in determining the propriety of probation, as in fixing the
ditions.” Ill. Stat. Ann. (Jones, 1936) § 37—773.

222
TYPES OF TERMS AND CQNDITIONS

Whether probation is served under conditions and terms
fixed to meet the needs of individual defendants is difiicult
to determine. Relatively few cases involving probation
conditions have reached the appellate courts 3“ so that no
estimate as to the degree of individualization of terms can
be made from that source. Where a well organized and ef-
ficient probation department exists, records of conditions
which the probationer must observe will throw some light on
the question. But here, as elsewhere in considering par-
ticular phases of the probation problem, it must be kept in
mind that in many courts throughout the United States
probation remains informal and perfunctory and little re-
liable evidence is available, beyond that of the statutory
provisions themselves, to indicate what the specific terms
may be.

From the primal fac-ie evidence of the statutes and from
data secured from those probation departments over the
country which are permanently organized and which have
either some records, or at least some sort of system of pro-
cedure, it would appear that by far the greatest number of
conditions imposed on probationers are of a pecuniary na-
ture. That is, defendants are released either after having
made some monetary payment; such as, costs, bonds, or fine,
or they are permitted to remain in society as long as they
continue regularly to pay installments on fines, or orders of
restitution or support.

Costa—Grave doubt exists as to both the utility and
propriety of certain of the pecuniary conditions. This is
especially true as to the requirements of payment of costs
and posting of bond by probationers before they can avail
themselves of the opportunity of release under supervision.
Certainly, where, as in Tennessee, probation is not granted
to a convict applying for it until he has secured or paid
all of the costs accrued at the instance of the State in the
action against him,37 the purpose of probation will be de-
feated from the very outset if those who would otherwise

3“ Warner, Home Legal Problems Raised by Probation, in Glueck, Probation and
Criminal Justice (1933) 23, 32.
37 Tenn. Code Ann. (Williams, 1934) § 11802.1.

223

rove good probation material fail to meet the initial re-
uirement of costs because of their poverty. The existence
f such a requirement lends the weight of concrete evidence
0 the oft-repeated charge that American administration
f criminal justice favors the rich over the poor because
any persons who might otherwise succeed on probation
re denied its benefits for lack of funds to pay the costs
f the criminal action against them. Neither the effect
hich such a law will produce on the minds of those thus
enied their liberty, nor the less immediate outcome of the
ailure to attempt rehabilitation are salutary for society.
A more sensible and realistic statute in regard to the
ayment of costs is that of Missouri. There the proba-
oner must pay all the costs in the case; however, if he is
nable to do this at the time for his probationary release,
e State will pay them, although it is contemplated that
e probationer should repay the amount of costs before
e receives his final discharge.38 In this way, probation is
ossible for those who appear to be likely material for the
eatment, without regard to their ability to meet the finan-
al demands of the moment. At the same time, the de-
ndant is released with some sense of his obligations, both
a wrongdoer and as a member of society.
Other States regard the payment of costs as a proper
ndition. In 13,39 the court or board is given permission
statute to impose this term. The exact procedure in
any of these States is not known, but it would appear
at where the imposition of the condition is discretionary,
tention is given to the defendant’s ability to pay, and
ther costs are not imposed at all, or opportunity is given
e probationer to pay them during the supervisory period.
1e requirement that the probationer pay the costs of the
se to his supervising officer is usual in Massachusetts.40
New Jersey the probationer may be required to pay
sts in one or several sumsf“1 Although the board of con-

38Mo. Stat. Ann. (Vernon, 1932) § 3818.
39 Arkansas, Connecticut, Delaware, Illinois, Indiana, Maryland, Massachu-
ts, Michigan, Missouri, New Jersey, Pennsylvania, Rhode Island, Vermont,
sconsin.

Probation Manual, Mass. Board of Probation (1916) 16.

N. J. Laws 1929, ch. 156, § 3.

224

trol has complete charge of probationers in Wisconsin, in
addition to the terms which the board imposes, the court
may Order a defendant to pay costs.42 The costs which a
probationer may be required to pay in Michigan are not
merely the usual costs taxed in a criminal action but may
include “all such expenses, direct and indirect, as the pub-
lic has been or may be put to in connection with the ap-
prehension, examination, trial, and probationary oversight
of the probationer.” 43

To sum up, it should not be contended that costs should
never be assessed as a condition of probation. Where the
payment of costs is well within the present powers of the
defendant he should be required to pay them because the
stipulation of immediate payment or payment before re-
lease can do no harm. But release should never be made to
depend solely on the defendant’s present ability to meet a
monetary obligation.

Bonds.—The posting of bonds, either for appearance or
for the faithful observance of conditions presents essentially
the same problems for consideration as does the require-
ment that costs be paid. In addition, however, the condi-
tions relating to bonds are open to the further criticism that
in a well organized probation system where adequate super—
vision exists, this type of condition should be unnecessary.
The requirement that a bond be given by the defendant
for his appearance and good behavior was undoubtedly a
necessary precaution in the days of John Augustus and
Father Cook, when the entire probation procedure was
without statutory sanction and the nonappearance of vio—
lators laid the court open to charges of acting extra-legally
and permitting wrongdoers to escape.

However, the development of a system of supervision
together with the necessity of reports and the visits of pro—
bation officers at regular intervals should by now have ob-
viated the necessity for such a formality. In jurisdictions
where the supervisory resources are still inadequate some

42Wis. Stat. (1935) § 57.01 (1).

”Mich. Comp. Laws (Mason, Supp. 1935) § 17373. “But these costs are
imposed as a condition of probation, and are not governed by the rules for
the taxation of costs imposed as a part of sentence.” People v. Robinson, 253
Mich. 507, 511; 235 N. W. 236, 237 (1931).

225

ason for the practice exists. In the light of the expe-
ence with bonds for other purposes the deterrent force
ercised by the prospect of financial loss may well be
estioned for it is doubtful whether the posting of bond
n transform a bad probationary risk into a good one.
he answer to this problem, as to so many others in the
1d, lies first of all, in a wise selection of probationers.
ailing that, the posting of bond will be an unsatisfactory
cking of the stable door.
Illinois, Kansas, and Missouri are the only States in
ich the court is required to make the posting of bond a
ndition of probation. In Illinois it is mandatory that the
obationer give a bond, with or without surety.“ In
ansas misdemeanants released on bench parole by the
y courts must enter into an appearance bond, agreeing
appear in court within a 6 months’ period.45 Persons
eased by district or common pleas courts in that State
st post a bond for appearance on the first day of each
lar term of court and at such other times as the court
y require during the continuance of the probation pe-
d.46 In these courts, however, bond is compulsory only
to persons convicted of felonies.47 In Missouri it has
n provided that if a person on Whom a penitentiary sen-
ce has been imposed is “paroled,” he must make a bond
a sum fixed by the court, with one or more sureties,
aranteeing that he will appear in court on the first day
each regular term of court and during each and every
of such term of court for the continuance of such pa-
e, and not depart without leave of court.48 If strictly
orced, the provisions of this statute with regard to at-
dance at court sessions would apparently impose an un-
y heavy burden upon probationers who could, after all,
expected to derive little benefit from sitting through long
dreary sessions of court.
any other States declare that a condition requiring the
ting of bond is proper if the court sees fit to impose it

Ill. Stat. Ann. (Jones, 1936) § 37—774.

Kan. Gen. Stat. Ann. (1935) § 20—2121.

Id. § 62—2205.

State V. Harris, 116 Kan. 387, 226 Pac. 716 (1924).
Mo. Stat. Ann. (Vernon, 1932) § 3813.

226

but the term is not made a condition precedent to proba-
tionf‘9 In contrast to the strictness of the Tennessee law
with regard to the payment of costs, the determination
whether a bond for appearance shall be given, is left to
the discretion of the court and the bond is not subject to
forfeiture for failure to attend other than a regular term
of court unless the probationer has been given 5 days’ no-
tice of the fact that his presence is required.50 In Cali-
fornia the courts may require bonds for the faithful ob-
servance of any conditions of probation.51 One of the
terms which the court may require in granting probation
in Delaware is the posting of a recognizance, with or with-
out surety, to appear and receive sentence when called upon
and in the meantime to keep the peace and be of good
behavior.52 Minnesota courts may require a recognizance
or other surety.53

The requirement of sureties places an added burden on
the defendant, since even in the case of an offender who
might otherwise succeed on probation, the circle of his
family, friends, or acquaintances may well not include
anyone with the requisite means to act in this capacity,
and thus may possibly expose him to the rapacity of pro-
fessional bondsmen. Perhaps the philosophy behind the
requirement of bond as a condition of probation remains that
of the Massachusetts commissioners who drafted the sus—
pension of sentence statute of 1836,54 who said in explain-
ing the provisions of the proposed statute in regard to
the requirement of sureties: “When sureties can be ob—
tained, it can hardly fail to operate as a powerful check
upon the conduct of the party, who is thus put upon his
good behavior. And if his character and habits are such
that no one will consent to sponsor for him, it must forc-
ibly impress on his mind the value of a good character,
while it deprives him of all ground of just complaint of
the severity of the law or the magistrate.” 55 \Vhatever may

‘9 California, Delaware. Maryland, Minnesota. Tennessee.
6°Tenn. Code Ann. (Williams, 1934) § 11802.2.

51 Cal. Pen. Code (Deering. 1937) § 1203.1.

53Del. Rev. Code (1935) § 4319.

‘3 Minn. Stat. ((Mason, Supp. 1936) § 9937.

5* See ante, ch. I.

55 Cited in Grinnell (1917) 2 Mass. L. Q. 610.

227

ave been the merit of the commissioners’ rationalization of
1e problem in 1835, the present situation of ofienders is
ot the same and a defendant’s ability to raise bond does
ot depend in all cases on his reputation for good habits
character. Unfortunately, under present conditions, the
fendant schooled in crime and wise in the “extra mural”
tricacies of the criminal law stands the best chance of
oducing both the bond and the sureties.
Fines. A condition requiring the payment of a fine by
offender is permissible in 22 jurisdictions.“ A distinc-
011 must be made as to fines which are a condition of pro-
tion and fines which are a sentence. Some statutes, while
anting the courts authority to impose fines in their dis-
etion, indicate that such a fine is to be regarded merely as
condition of probation and not as a sentence or part of a
ntence. In Nebraska the terms of probation may include
e payment of a fine,57 which is imposed, not for the of-
se, but as a condition of being placed on probation.58
nnsylvania courts may require the payment of money, for
e use of the county, not exceeding the fine fixed by law
the offense involved.59 “No such condition for the pay-
nt of money shall be considered the imposition of a fine
a sentence nor prevent the court thereafter sentencing
y defendant under the act under which he * * * was
1victed, upon violation of his * * *‘ parole.” 6° The
trolling reason for the differentiation lies in the fear
t, if the fine be considered a sentence, the court would
e the right to imprison the defendant upon violation.
e possibility of such a result is very real in those States
ere only imposition, and not execution of sentence, may
suspended.61 In Michigan it has been held that the
ment of the fine required as a condition of probation
s not make the probation order a final sentence and thus

Arizona, California, Colorado, Illinois, Indiana, Iowa, Kentucky. Maine,
sachusetts, Michigan, Nebraska, New Jersey, New York, North Carolina,
0, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, West Virginia,
eral courts.

Neb. Comp. Stat. (1929) § 29—2215.

Moore v. State, 125 Neb. 565, 251 N. IV. 117 (1933).

Pa. Stat. (Purdon, 1936) title 19, § 1051.

Ibid.

Ibid.

228

preclude a subsequent sentence upon violation of the con-
ditions of probation.62 The majority of States having a
statutory provision in regard to fines draws no such dis-
tinction, possibly regarding such fines merely as conditions
and not as sentences,63 since special provision is made for
a probation period to permit the payment of a fine which is
itself a sentence or part of a sentence.64

Where the fine imposed is in reality a condition of proba-
tion which the defendant must fulfill, the wiser practice is
to permit the amount to be paid either in a lump sum or
in installments, according to the financial ability of the
offender. This is done in many States, or at least such a
practice is possible under the statutes of Illinois,65 Ken-
tucky,66 Massachusetts,67 New J ersey,68 North Carolina,69
Virginia,70 West Virginia,71 and in the Federal courst,72
In the absence of statutory permission for the payment or
a fine in installments there is always the possibility that a
fine which is imposed as a condition of probation will be
treated as a condition which must be met before the offender
is entitled to his release under supervision and that injus-
tice may result for the offender who is poor.

Probation is granted in many States to permit the pay-
ment of a fine imposed as a sentence for the crime of which
the defendant was convicted. In some of the States where
this is done, the procedure followed cannot always prop-
erly be termed probation. Often the payment of the fine
is the only condition of probation set by the court, the
supervision of an oflicer is not always required, and proba-
tion is terminated upon final payment. Probation when
put to this use is generally employed as a means of secur-

 

63 People v. Fisher, 237 Mich. 504 ,212 N. W. 70 (1926).

63 California, Illinois, Indiana, Iowa, Kentucky, Maine, Massachusetts, Michi-
gan, Nebraska, New Jersey, New York, North Carolina, Oregon, Pennsylvania,
Rhode ISIand. Vermont, West Virginia, Federal courts.

“Arizona, Colorado, Maine, Massachusetts, New York, Ohio, Pennsylvania,
Virginia.

65I11. Stat. Ann. (Jones, 1936) § 37—775.

mm. Stat. (Carroll, 1936) § 979b—7.

‘37 Mass. Gen. Laws (1932) ch. 270, § 1, as amended.

mN. J. Laws 1929, ch. 156, § 3.

09 N. C. Laws 1937, ch. 132.

7° Va. Code (Michie, 1936) § 1922b.

"1 W. Va. Code Ann. (Michie, Supp. 1933) § 6134.

"2 U. S. C. § 724 (1934).

229

ng a more even administration of justice and of avoiding
he necessity of imprisoning the indigent while allowing
he well-endowed to pay their fine and go free.
Maine permits the release on probation of a person sen-
enced to pay a fine or serve an alternative sentence of
prisonment. The court may release such a person on
robation to enable him to earn money to pay his fine.73
t does not appear from the statute that any additional
rms of probation are imposed when probation is granted
or this purpose. Where the sentence is a fine and impris-
nment, the court may place the defendant on probation
s to the imprisonment, on condition that he pay the fine.
n default of payment, the court may impose a sentence of
prisonment of not more than 6 months.” It appears
at the only conditions upon which a sentence of fine may
suspended in Maine are those which contemplate eventual
d actual payment. Whether, in either of the situations
tlined in the statutes of this State, it is intended that
ere shall be a true probationary period is not clear.
nder the Massachusetts provision relating to probation to
low payment of a fine, supervision is not mandatory.75
owever, the installments are paid to the probation officer
(1 when the full amount has been paid the order of com-
itment is void.76 The Massachusetts practice may amount
a true probation wherever the court sees fit to make it so
imposing additional conditions and extending the period
yond the time which the payment of the fine would or-
narily require.77 In the same State, when a defendant
ceives a sentence of fine and imprisonment, the statutes
pressly authorize suspended sentence as to either or both,
'th an order placing the defendant on probation.78 Here
ain the court may impose the payment of a fine as a con-
tion. Payment in full voids the order of commitment as
the fine but not as to the imprisonment.79

73 Me. Rev. Stat. (1930) ch. 147, § 13; also true in Cumberland County, see
. Priv. and Spec. Laws 1905, ch. 346, § 5.

74 Me. Pub. Laws 1933, ch. 231.

75 Mass. Gen. Laws (1932) ch. 279, § 1, as amended.

oI‘lfid.

7Ibz'd.

‘8 Mass. Gen. Laws (1932) ch. 279 § 1A.

9Ibvid.

230

The New York law, in addition to authorizing courts to
impose the payment of fines as a condition of probationf‘o
envisages still another situation in regard to the payment
of fines. There, where a defendant is under a judgment to
stand committed until his fine 31 is paid, the imprisonment
may be suspended on terms by the court and the defendant
placed on probation.82 However, the period of probation
ends on payment of the fine.83

N o fault can be found with the humane practice of per-
mitting the poor to have an opportunity to pay fines in
installments. The need for a device of this nature has long
been recognized and any other procedure gives the impres-
sion of inequality before the law. The fault lies in attempt—
ing to label as probation what is merely a suspended sen-
tence for a specific purpose. This is especially true where
the period of supervision ceases upon payment of the full
amount of the fine. In the case of small fines the period
of supervision will be too short to accomplish any per-
manent rehabilitation. Where the fine is larger in amount,
the rehabilitative process stands more of a chance of suc-
cess, but persons on this type of probation are likely to be
aware that at any time an unexpected stroke of good for-
tune may enable them to pay off the fine in full and thus
free themselves from oversight. Actually, probation for
this purpose is not probation at all but a merciful make—
shift. The entire process could no doubt be handled by
agencies other than probation oflicers who are generally
overburdened with their supervisory duties in proper cases
of probation.

In Ohio, when the punishment in misdemeanor cases is
either by fine or imprisonment or both, an offender may be
put on probation to allow payment of the fine, or otherwise
committed to the custody of an officer for a limited time to
allow payment.34 This provision apparently contemplates
nothing further than the actual payment of the amount of

80 N. Y. Code Cr. Proc. § 932.

811. 9., a fine which is a sentence for the offense of which defendant was
convicted.

82 N. Y. Code Cr. Proc. § 483 (2).

83Ibid.

8401110 Code Ann. (Throckmorton, 1936) § 13451—8.

231

the fine, since, seemingly, probation ceases when final pay—
ment is made. The Pennsylvania provision is somewhat
similar although it operates only in cases where a fine only
is imposed and the defendant might be imprisoned until
payment.85 In such cases, the offender may be released on
probation and ordered to pay the fine in installments at
certain times. On final payment, the judgment is satisfied
and probation ends.86

Restitution—Restitution to aggrieved parties for loss or
damage caused by the defendant’s unlawful act is fre-
quently made a term of probation and authority to courts to
impose such a condition is granted almost uniformly by
the statutes.87

In California the probationer may be required to go to
work to earn money to pay any reparation condition im-
posed and, in proper cases, reparation may be determined
by the court.88 The Los Angeles County probation de-
partment has developed a well regulated and efficient pro-
cedure for dealing with restitution cases. In the county
probation department there is a separate division of resti-
tution which has for its purpose, the investigation of all
cases in which a restitution order is made a part of the
conditions of probation. The aim of the work done by the
division is to determine the extent of the injuries or damage
resulting from the offense and to arrange the details for
the payment of the restitution ordered.89

Transcripts received from the court, after passing
through the file room of the probation department, are
sent to the restitution division. There they are carefully
read and in each case in which payment of a fine or restitu-

85Pa. Stat. (Purdon, 1936) title 19, § 1052.

86Ibid.

57 Ark. Dig. Stat. (Crawford & Moses, Supp. 1927) § 32293; Cal. Pen. Code
(Deering, 1937) § 1203.1; Colo. Stat. Ann. (Michie, 1935) ch. 140, § 1; 111.
Stat. Ann. (Jones, 1936) § 37—775; Ind. Stat. Ann. (Burns, 1933) § 9—2210;
Ky. Stat. (Carroll, 1936) § 97913—7; Me. Rev. Stat. (1930) ch. 147, § 22;
. Mass. Gen. Laws (1932) ch. 276, § 92; Mich. Comp. Laws (Mason, Supp. 1935)
§ 17373; Neb. Comp. Stat. (1929) § 29—2212; N. J. Laws 1929, ch. 153, § 3;
N. Y. Code Cr. Proc. §§ 483 (2), 932; N. C. Laws 1937, ch. 132; Ore. Code
Ann. (Supp. 1935) § 13—1146; R. I. Gen. Laws (1923) ch. 403; Va. Code
(Michie, 1936) § 1922b; W. Va. Code Ann. (Michie, Supp. 1933) §6134; Wis.
Stat. (1935) § 57.01 (1) ; 18 U. S. C. § 724 (1934).

BSSupra, note 87.

59 This division also handles details of payments of fines imposed.

73115~—39—v0L. II 16

 

232

tion is ordered as a condition of probation, a card is made
out and placed on file, noting the name of the defendant
and the order of the court.

It frequently occurs that the court’s order is that restitu-
tion be made to the injured parties in such amount only as
the probation department determines. This places on the
department, and more particularly on the restitution divi-
sion, the burden of determining the damages incurred and
of making specific the conditions under which payment must
be made.

The first step taken in restitution cases in Los Angeles
County is that of contacting all those having claims against
the probationer as the result of the offenses; finding out
what those claims are and investigating and veryifying the
facts in regard to them. Further, the division must in-
vestigate the defendant’s situation and reach a conclusion
as to his ability to pay the restitution claims and then de-
termine the exact amount which the defendant will be
required to pay and the conditions under which it may be
paid. No money is handled by this division; the payments
are made to the court trustee whose oflice is located in the
same building as the adult probation department.

As soon as restitution money is received, it is distributed
through the county auditor’s office on a pro mm basis to
those persons whose claims against the defendant have been
established. Lists of payments received by the court
trustees are sent to the probation office daily, and this in-
formation is entered on the record of the defendant’s case.
As soon as the full amounts have been paid the restitution
division is notified and an additional check is made by this
division of the record to be sure that it shows the comple-
tion of all payments. In those cases in which both a fine
and restitution are assessed against the defendant, the
money paid in is always applied first to restitution.

The determination of these matters requires considerable
investigation in each case. On the whole, creditors are very
fair in their attitude toward a defendant and cooperate will-
ingly to the end that the restitution required of the defend-
ant be on a fair basis. The most frequent types of cases in
which restitution is ordered are those arising out of auto-

233

mobile cases and the passing of fictitious checks. Great
care is taken to see that individuals not entitled to restitu-
tion are eliminated from the possibility of receiving pay-
ments. At this point of the legal process, however, there
is very little danger that restitution will be assessed merely
as a means of collecting a bad debt as the judges watch this
very closely since they do not care to have their courts used
as collecting agencies.

Whenever a case comes to the attention of the division,
a prepared form is sent to every person, of whom there is
any record in the case, who might have suffered damage or
financial loss, asking that they come forward with in-
formation as to their losses. These forms, used in cases in-
volving damage or known loss are sent out after the filing
of the application for probation but before the actual hear-
ing and determination of probation. Very often the
amount of damages or loss will have a bearing on the de-
cision as to the advisability or possibility of granting
probation to the defendant. '

Apparently restitution in Maine can be imposed as a
condition of probation only within narrow statutory limits.
There probation can be allowed in the case of an offense
for which a civil action for damages of not more than $20
would lie, in order to enable the defendant to make resti-
tution.90 In Massachusetts probation may be ordered on
the payment of restitution or reparation of civil damages
to persons primarily injured by the defendant’s crime.91
This provision is a usual term of probation in Massachu-
setts and the defendant pays the amounts ordered to the
probation officer.92

New York statutes permit the inclusion of a restitution
order as a condition of probation.93 But in People v. Fun/c 9“
it was held that restitution cannot be made a condition
where it is for losses caused by other offenses than that for
which the defendant was on trial when the probation was
granted. In the Funk case the defendant was convicted

9°Me. Rev. Stat. (1930) ch. 147. § 22.

“Supra, note 87.

9’ Probation Manual, Mass. Board of Probation (1916) 16; id. (1936) 10.
93 N. Y. Code Cr. Proc. §§ 932, 483 (2).

94 117 Misc. 778 193 N. Y., Supp. 202 (Erie Cy. Ct. 1921).

234

in the city court of stealing $3.80 from her employer; it
was computed by the employer that the defendant had ac—
tually stolen about $1,500 over a period of years. The de-
fendant promised to make restitution of the larger sum if
she were not given a prison sentence, and the court placed
her on probation on that condition. Later, she appealed,
after having made a few payments, and it was held that the
city court had no power to order restitution for more than
$3.80, on a strict interpretation of the statute. In many
States restitution may be ordered only for actual losses
caused by the offense for which probation was granted.

In Washington, although the terms of probation are set
generally by the board of prison terms and paroles, the
court may order restitution. The board, however, does not
accept supervision of payments beyond reminding the pro-
bationer of his duty. Such records as are made concerning
payments are kept by some officer of the court. In Wis-
consin where, as in Washington, control is vested in a board
and not in the courts, a court may make the payment of
restitution a term of the defendant’s probation in addition
to the conditions imposed by the board.95

Support—Support of dependents is probably the most
common of all conditions imposed on probationers since
many States which have no other adult probation law have
created a somewhat analogous system with regard to per-
sons convicted of nonsupport.96 Eighteen States authorize
the inclusion of an order for support of dependents as a
term of probation, either by statute,97 by rule of court 93 or
board 99 or by decision.100 In many jurisdictions the condi-
tion of support is combined with an admonition or order

95Wis. Stat. (1935) § 57.01 (1).

9" See ante eh. I.

97Cal. Pen. Code (Deering, 1937) § 1203.1; Colo. Stat. Ann. (Michie, 1935)
ch. 140, § 1; III. Stat. Ann. (Jones, 1936) § 37—775; Ind. Stat. Ann. (Burns,
1933) §§ 9—2210, 10—1406, 10—1410; Ky. Stat. (Carroll, 1936) § 979b—7; Mass.
Gen. Laws (1932) ch. 273, §§ 3, 5, 13, 16, 18. 22; Neb. Comp. Stat. (1929)
§ 29—2212; N. Y. Code Cr. Proc. §§ 483 (2), 932; N. C. Laws 1937, ch. 132;
Ore. Code Ann. (Supp. 1935) § 13—1146; R. 1. Gen. Laws (1923) ch. 403; Vt.
Pub. Laws (1933) § 3094, Vt. Pub. Acts 1934, No. 1. § 66; Va. Code (Michie,
1936) § 1922b; W. Va. Code Ann. (Michie, Supp. 1933) § 6134; 18 U. S. C.
§ 724 (1934).

98Delaware, Rules of Court of General Sessions, Wilmington, Del, I

9” Rules, Washington Board of Prison Terms and Paroles.

10° Towns v. State, 25 Ga. App. 419, 103 S. E. 724 (1920).

235

that the defendant “work steadily” “’1 or “go to work” 102
to earn money for this purpose. In Illinois the court may
impose a condition that the probationer contribute from
earnings for support.103

Apparently, statutory provision for the imposition of a
condition to support dependents occurs most frequently
where probation is granted a defendant who has been con-
victed of nonsupport when it is usually mandatory. In In-
diana a probationer may be required to support any person
to whom he legally owes this duty.104 Furthermore, the In-
diana statute making it a misdemeanor to neglect to support
a wife or minor child specifically provides that if a person
found guilty thereunder is released on probation, the re-
quirement that he provide for those dependents must be
made a condition of release.“05 In such cases the probation
period cannot extend over 2 years.106 The same requirement
attaches in cases of nonsupport of indigent parents.107

In desertion cases in Massachusetts the court may place
the defendant on probation either after conviction or, with
the defendant’s consent, before trial. If probation is granted
before trial, it may or may not be under supervision, but
in either situation the court must attach a condition that
certain sums be paid periodically for the support of the
wife and other dependents.108 The same provisions extend
to the cases of illegitimate children and destitute parents.109
Where fines are levied in desertion cases they are paid to
the probation officer to be paid by him to the wife, or the
city or town or person supporting the wife or children or to
the State if the dependent is a State charge.110

The requirement that the defendant support his family is
a term often prescribed by both the courts and the State
commissioner in Vermont. In addition, the earnings of a
person convicted of intoxication or nonsupport are paid to

101 Supra, note 98.

102 Cal. Pen. Code (Deering, 1937) § 1203.1.
1°“ Supra, note 97.

1‘” Ind. Stat. Ann. (Burns, 1933) § 9—2210.
105M. § 10—1406.

1°°Ibid.

1‘" Id. § 10—1406.

103 Mass. Gen. Laws (1932) ch. 273, §§ 3, 5.
1°“ Id. ch. 273, §§ 13, 16, 18, 22.

11° Id. (:11. 273, § 3.

236

the" State probation officer for use in supporting the proba-
tioner’s dependents. If there are no dependents, the money
may be used to support the probationer, and any excess
may be deposited in a bank to be'paid to him at the con-
clusion of his probation period.111 It appears that proba-
tioners in Vermont convicted of intoxication or nonsupport
will have a rocky row to hoe since the beneficient statute
which bestows all the probation’s income on his dependents
seems to assume that the defendant will be sustained and
supported by his good conduct alone.

While no terms of probation are outlined in the Georgia
statutes, a court in that State has held that after convic-
tion of abandonment of child a condition that the defend-
ant pay $10 a month for the child’s support as long as it
was not in his custody was valid even though it would, in
effect, extend beyond the court’s authority as to the period
and the fine applicable to such an offense.112 In California,
in Los Angeles County, the division of restitution 113 of the
county probation department also keeps track of domestic
relations accounts where, as in nonsupport cases, the pay-
ments are made a condition of probation.

In addition to conditions imposed on probationers with
regard to the support of their dependents, the statutes in
two States make provision for the temporary support and
transportation of the offender himself.114

Fees for probation service.——In two States, Connecticut “5
and Michigan,”6 a fee for probation service may be imposed
on the. probationer. In Connecticut a payment of a sum
not to exceed $48 may be charged as fees of the officer.117
The 1913 law in Michigan “8 authorized an “oversight fee”
of not more than $1 per month during the probationary
period. Moreover, as interpreted by the court, the “costs”
authorized in the current Michigan law may be summarily
taxed and need bear no direct relation to the costs imposed

111 Vt. Pub. Laws (1933) § 3094, Vt. Pub. Acts 1934, No. 1, § 66.
112 Towns "v. State, 25 Ga. App. 419, 103 S. E. 724 (1920).

113 See supra, pp. 231—233.

114 Me. Rev. Stat. (1930) ch. 346, § 3; Vt. Pub. Laws (1933) § 8877.
115 Conn. Gen. Stat. (1930) § 6518.

11° People v. Robinson, 253 Mich. 507, 235 N. W. 236 (1931).

11" Supra, note 115.

113 Mich. Laws 1913, Act 105, § 3.

237

in ordinary criminal cases.119 No doubt there is some justice
in requiring an offender to pay to the State some nominal
fee in return for the supervision exercised over him. Such
a requirement is in line with current proposals that prison-
ers be required to make some payment for their care and
maintenance as guests of the State. Apparently, the pay-
ment of such a fee is mandatory in neither Connecticut nor
Michigan and is probably not assessed where a defendant is
already overburdened with debt or is poverty-stricken.

From the evidence of the statutes and cases, it appears
that the emphasis in regard to the terms and conditions of
probation has fallen preponderantly on conditions which
involve the payment of money by offenders. As to other
conditions, provisions in the statutes are more sketchy and
vague and do not recur ”so uniformly from State to State as
do pecuniary conditions. For some reason less care seems
to have been taken by legislatures to make clear and definite
to their courts the precise nature of permissible terms other
than those requiring money payments. In many ways the
emphasis on the pecuniary aspects of probation practices
may be undue. Certainly in no case should the foremost
consideration in the court’s decision to grant or deny pro-
bation be the defendant’s ability to furnish funds for pre-
requisite costs, bonds, or fines. Success on probation can-
not be measured in terms of the defendant’s financial re—
sources at the time the question of probation is being de-
termined. Often poverty alone may have caused the de-
fendant’s lapse from grace. Where there is no question
of the defendant’s ability to meet monetary demands the
propriety of such terms does not seem so important.

It is only where terms as to costs, bonds, and fine operate
as provisions affecting eligibility and not as conditions to
be complied with during the period that their merit is
doubtful. Actually, in many cases the payment of a fine
in installments may be turned to the probationer’s ad-
vantage. It is the practice in Massachusetts, although the
statute requires the condition of fine to be fulfilled within
a given time, to extend the period within which the fine is
required to be paid; other terms are then imposed, often

11" Supra, note 116; see also ante p. —.

238

that the probationer make weekly savings equal to the
amount being paid toward the fine to‘be continued through-
out the probation period.12°

With regard to the payment of restitution, a different
problem arises. Here there seldom is danger that condi-
tions relating to restitution will be made to operate as fac-
tors affecting eligibility. Payment of restitution can be of
infinite value in the process of rehabilitation, encouraging
habits of industry and thrift and impressing upon the pro-
bationer his duties as a responsible member of society.
However, vigilance must be exercised by courts to prevent the
utilization of criminal processes for the collection of civil
debts. Classically, criminal justice has always been assumed
to be administered for the protection of the whole of society
and its concern with individuals injured by the criminal acts
of others is said to be merely incidental. A process which
attempts to utilize criminal procedure for the reparation
of civil damages will meet with severe criticism.

Again, care should be exercised by courts and investigat-
ing officers to make certain the burden will fall on the pro-
bationer himself and not on an innocent member of his
family. Johnson relates the case history of a bigamist
ordered by the court to make restitution to the second “wife”
and to contribute support to the child of his bigamous mar-
riage. In a period of over 5 years more than $1,175 was
paid, almost entirely by the loyal first wife to whom the
probationer had returned after his release.121 It is notable
that during the entire probation period in this case the
offender was never able to find steady employment and the
wife was obliged to do office work both to support the family
and to continue the restitution and support payments. There
is reason to believe that such a result will not infrequently
occur where restitution is granted arbitrarily or indiscrimi-
nately.

Manifestly, it is unfair that an innocent person be bur-
dened with paying for the results of an offender’s wrong-
doing, but such is the loyalty of many families and such is

12° Probation Manual, Mass. Board of Probation (1936) 10.
121 Johnson, Probation for Juveniles and Adults (1928) 163 et seq.

239

their fear of the disgrace of imprisonment that they will
undergo any amount of hardship rather than have a son,
husband, or father incarcerated for his offense.122 In practice
it is doubtful whether restitution would be ordered in any
case if it appeared afiirmatively to the court that the burden
would be borne by another than the defendant. Nor would
it necessarily happen that an offender would be denied pro-
bation altogether merely because investigation disclosed the
fact that restitution would not be feasible for him.

As has already been indicated, statutory regulation con-
cerning the imposition of conditions which relate to conduct
generally is not so plentiful as in the case of pecuniary con—
ditions. One reason may be that doubt has not been felt as
to the court’s power to impose reasonable conditions relat-
ing to the probationer’s daily life, whereas the extent of the
power to require money payments has not always been clearly
defined or understood. The exacting of fines 'and restitu-
tion from probationers look too much like sentencing, and
many courts would hesitate to impose a fine as a condition,
fearing that in so doing, in the absence of direct statutory
authority for such a procedure, the imposition of the fine
might deprive them of jurisdiction later to sentence the
probationer on violation of conditions.123 Few of the con-
ditions relating to the general conduct of the probationer
which the statutes may mention are unusual. Many of
them reflect the prevailing public Opinion as to what con—
stitutes good or bad habits.

In.toa7icants.—Conditions ordering a probationer to ab-
stain from the use of intoxicants or to remain away from
places where intoxicants are served are frequently imposed,
but Nebraska is the only State which has considered it
important enough to make an express grant of power to the
courts to impose such a term.124 In that State the terms of
probation may include an order that the defendant abstain
from the use of alcohol if that contributed to his offense.125

12’ See Miller, The Law and Probation, Yearbook, Nat. Prob. Ass’n (1931) 85.
123 See ante p. 227.

mNeb. Comp. Stat. (1929) § 29—2212.

125nm.

240

There is reason to believe that conditions concerning
intoxicants are imposed in a number ‘of other States though
they are not expressly mentioned by statute.126

In Colorado 127 rules of court require the probationer not
to use intoxicants or narcotics and to remain away from
questionable places or places where intoxicants are served.
Among the rules of probation established in Wilmington
is a prohibition against loafing in saloons or buying
drinks.128 In some States, there occurs an admonition that
the defendant avoid “injurious or vicious habits” 129 which
no doubt may be construed to include the use of intoxicants
in particular cases. In Vermont the terms of probation
prescribed by the courts and the State commissioner require,
among other things, that the probationer neither drink nor
sell intoxicating liquor. One of the rules of the board of
prison terms and paroles in Washington is that the proba-
tioner use no intoxicants or narcotics.130

In Massachusetts drunkenness is itself a crime 131 and
so conviction of drunkenness may operate to revoke pro-
bation as a violation of a condition that the defendant ob-
serve the law. Probation officers in Massachusetts have
special duties with reference to persons charged with drunk-
enness.132 A person arrested for drunkenness may make a
written statement addressed to the court or trial justice
having jurisdiction of the offense, giving his name and
address, number of dependents, place of employment, and
whether he has previously been arrested for drunkenness
during the past 12 months. This statement may be deliv-
ered to the oflicer in charge of the place of confinement,
and if the arrest is made within the jurisdiction of a court
having a probation officer, the statement must be trans-
mitted to the probation officer, who upon investigation may
order the release of the defendant. A release may be

12“ Arizona, California, Colorado, Delaware, Idaho, Minnesota, Vermont,
Washington.

1”Rules of Court, 2d, 3d, 7th, 10th, 14th Districts.

128 Rules of Court of General Sessions, Wilmington, Del., I.

139 Ky. Stat. (Carroll, 1936) § 979b—7; N. J. Laws 1929, ch. 156, § 3; N. C.
Laws 1937, ch. 132; Ore. Code Ann. (Supp. 1935) § 13-1146.

130 Rules, Washington Board of Prison Terms and Paroles.

131 Mass. Gen. Laws (1932) ch. 272, § 48.

133 Id. §§ 45, 46, 49.

241

ordered only if the ofi‘icer believes the arrested person has
given his true name and address, that he will appear upon
a summons and that he has not four times before been
arrested for drunkenness within a year.133

Disreputable places or persona—Conditions requiring a
probationer to avoid disreputable places or persons are
frequently imposed.134 however, the condition is not specifi-
cally mentioned in the statutes of many States.”5 In Wil—.
mington a probationer is required not to loaf in cigar stores
or pool rooms.”6 Conditions that the defendant avoid dis-
reputable places or persons have been held valid in
Georgia.137 The rules of the board in Washington prohibit
the association of probationers with convicts or ex-convicts.138

Late hours—According to the rules of court governing
the conduct of probationers in Colorado, they may be re-
quired to stay off the streets late at night.139 In Wilming-
ton probationers must be indoors by 11 in the evening.140

Employment—In some jurisdictions the conditions im-
posed as to employment contemplate rather the defendant’s
ability to make restitution and support payments than the
formation of habits of industry in the offender.”1 Some-
times a further stipulation of “lawful employment” is
madam In Colorado probationers are required to report

133111. § 45; see Horgan v. Boston Elevated Ry., 208 Mass. 287, 94 N. E.
386 (1911). “Probation officers shall assist the courts appointing them by
obtaining and furnishing information relative to previous arrests, convictions
and imprisonments for drunkenness, and such other facts as the court orders
relative to persons accused of drunkenness. They shall keep a full record,
well indexed, of each case they investigate, in such form as the court orders.”
Mass. Gen. Laws (1932) ch. 272, S 49.

13* Arizona, Colorado, Delaware, Georgia, Kentucky, Massachusetts, Nebraska,
New Jersey, Oregon, Pennsylvania, Washington.

135 The condition is listed as a term which may be imposed in: Ky. Stat.
(Carroll, 1936) § 979b—7; Neb. Comp. Stat. (1929) § 29—2212; N. J. Laws
1929, ch. 156, § 3; N. C. Laws 1937, ch. 132; IOre. Code Ann. (Supp. 1935)
§ 13—1146.

136 Rules of Court of General Sessions, Wilmington, Del., I.

137 Shamblin v. Penn, 148 Ga. 592, 97 S. E. 520 (1918); Jones v. State, 27
Ga. App. 631, 110 S. E. 33 (1921); Dickson v. Dunway, 162 Ga. 210, 132
S. E. 911 (1926).

138 Rules, Washington Board of Prison Terms and Paroles.

139 Rules of Court, 2d, 3d, 4th, 9th, 10th, 14th Districts, Colorado.

14° Rules of Court of General Sessions, Wilmington, Del., I.

141 Cal. Pen. Code (Deering, 1937) § 1203.1; Rules of Court of General
Sessions, Wilmington, Del., I.

143 District of Columbia, Vermont.

242

changes of employment.143 The Illinois statute makes it
mandatory for judges granting probation to include the
condition that the defendant report once a month, or as
often as the court directs, concerning his employment and
other matters.“ A condition that the defendant work reg-
ularly is common in Massachusetts.”*5 In Vermont terms
prescribed by the courts and the State commissioner require
that the probationer diligently pursue some lawful
employment.

A more realistic attitude toward the question of employ—
ment is displayed in the statutes of Kentucky,”6 North
Carolina,147 and Oregon,“8 where the courts may impose a
condition that the defendant work at some suitable em-
ployment as far as possible. Manifestly revocation for
failure to meet a condition of employment would be unfair
toward defendants who are unemployed because of eco-
nomic conditions beyond their control. In Jackson County,
Mo., the sponsor required of all bench parolees signs a
written agreement that he will help the defendant to find
employment. The rules of the board in Washington do
not permit the probationer to change his place of employ-
ment without the approval of the parole officer; further,
the probationer must make every effort to keep employed.149

Indebtedness and unnecessary ewpenditu7°es.—An attempt
has been made in some jurisdictions to regulate the expen-
ditures of defendants. In Missouri, in Jackson County, the
monthly written report made by the probationer and cer-
tified by his sponsor gives information concerning employ-
ment, income and items of expenditure. The same pro-
cedure is followed in Buchanan County in that State. The
rules and regulations of the board in Washington prohibit
incurring unnecessary indebtedness or purchasing an auto-
mobile without the consent of the parole oflicer. Such re-
strictions seem to have a very wise purpose in view and, if
properly enforced, should at least exercise an appreciable

143 Rules of Court, 2d, 3d, 4th, 7th, 9th, 10th, 14th Districts, Colorado.
144 Ill. Stat. Ann. (Jones, 1936) § 37—774.

145 Probation Manual, Mass. Board of Probation (1916) 16.

14“ Ky. Stat. (Carroll, 1936) § 979b—7.

147 N. C. Laws 1937, ch. 132.

“3 Ore. Code Ann. (Supp. 1935) § 13—1146.

149 Rules, Washington Board of Prison Terms and Paroles.

243

deterrent force as to future violations of the law since the
temptation to acquire funds by unlawful means is un-
doubtedly greater where a person finds himself floundering
in a morass of debt. Again such restrictions may be really
constructive if the offender is able to acquire during his
probation habits of thrift and good management of income.

It is less easy to find the constructive reasoning behind
the condition imposed on probationers in one of the Mis-
souri counties not to marry if single or divorce if married.
Local regulations in a few States specifically prohibit the
use of narcotics,150 the possession or carrying of firearms.151
In Wilmington a defendant may be required to attend
church.152 Courts in many States have wide discretion as
to the imposition of conditions and are thus able to adapt
the terms of a defendant’s probation to the circumstances
of his general character and situation.153 Thus, in New
York, in addition to the usual conditions, a further restric-
tion that he “refrain from associating with young boys in
any manner whatsoever” was imposed on a defendant con-
victed of sodomy.154

Conditions that the probationer leave the jurisdiction
have generally been held invalid,155 although in Georgia a
condition that the defendant leave Atlanta and go to Ala-
bama was upheld, the court pointing out, however, that
probation served outside the State would not entitle the
defendant to a “legal probationary discharge.” 15“ The
Michigan court has held that the trial court cannot order
probationers to vacate the premises in which they lived,157
but as Warner has pointed out, “the judge’s order in that
case recited no reason why this condition was imposed and
the Michigan Supreme Court evidently could think of
none.” 158 In State v. Harris the Kansas Supreme Court

150 Rules of Court, 2d, 3d, 4th, 7th, 9th, 10th, 14th Districts, Colorado.

151 Rules of Court, Jackson County, Missouri; Rules, Washington Board of
Prison Terms and Paroles; Rules of Court, Colorado, cited supra note 150.

152 Rules of Court of General Sessions, Wilmington, Del., I.

153 See ante, pp. 217—221.

15‘ PeOple v. Brophy, 147 Mics. 254, 263 N. Y. Supp. 571 (1933).

155 Welch v. State, 120 Me. 294, 113 At]. 737 (1921); People v. Balm, 251
Mich. 187, 231 N. W. 95 (1930).

153 Roberts v. Lowry, 160 Ga. 494, 128 S. E. 879 (1932).

157 People v. Smith, 252 Mich. 4, 232 N. W. 397 (1930).

155 Warner, Some Legal Problem-s Raised by Probation», in Glueck, Probation
and Criminal Justice (1933) 33 et seq.

244

held that the court may in its discretion “attach any con-
ditions to the parole that are not inimoral, illegal, or im-
possible of performance.” 159 A condition of “good behav-
ior” alone has been held to be sufficiently definite for the
guidance of a probationer in N ebraska.1°°

The stringency of the conditions imposed is not always
a guide to their validity. A condition of sterilization in a
rape case where syphilis was involved was held not an un-
reasonable condition in California.161 In that case the de-
fendant, in an attempt to avoid both the condition and the
alternative imprisonment, produced evidence which tended
to show that the disease was curable, and that the defend—
ant was willing and financially able to secure medical treat-
ment. The appellate court upheld the trial court in revok-
ing probation for noncompliance with the term within the
period specified and said “However, as the trial court very
properly observed, it was not so much concerned with cur-
ing the disease with which appellant was afflicted as it was
with preventing appellant from transmitting the disease to
his possible posterity. * * * The appellant was not
compelled by the condition which the court imposed to sub-
mit to an operation whose effect would be to foreclose him
from procreation. He was permitted to elect whether he
would comply with the condition and receive the clemency
which he asked or decline to submit to the operation and ac-
cept the penalty which the law provides as punishment for
his offense.” 162

M edical care—Defendants may be required to undergo
medical or mental treatment in Rhode Island.163 Courts
sometimes order that defendants undergo hospital treat—
ment as one of the conditions of being placed on probation.
A condition of hospitalization which forbade the defendant
to leave the hospital without the consent of his patron was
held to be not unreasonable in Kansas.164 If a probationer is

159116 Kan. 387, 389, 226 Pac. 715, 716 (1924), quoting In re Patterson, 94
Kan. 439, 146 Pac. 1009 (1915).

160 Sellers V. State, 103 Neb. 748, 181 N. W. 862 (1921).

161 People V. Blankenship, 16 Cal. App. (2d) 606, 61 P. (26) 3:32 (1936).

162 Id. at 610, 61 P. (2d) at 353. ‘

163R. I. Gen. Laws (1933) ch. 403.

1‘” Gray v. Graham, 128 Kan. 434, 278 Pac. 14 (1929).

245

a. drug addict Federal courts mayimpOse a condition that
he submit to treatment at a United States narcotic farm
until discharge therefrom as cured.165

Law obsemance.—When probation is revoked the most
common ground is further violation of the law on the part
of the defendant; therefore, it would seem axiomatic that
law observance be a condition of probation. Such a condi-
tion is so fundamental to the very nature of probation that
express injunctions with regard to law-breaking seem mere
redundancy. However, in Illinois 16" and Michigan 1‘67 it is
mandatory that the courts granting probation include a
condition that the defendant shall not violate any criminal
law of the State. The Michigan statute includes municipal
ordinances within the prohibition.168 One of the usual con-
ditions- in Arizona, that the offender obey the laws and the
instructions of the probation officer, is imposed in many other
jurisdictions.169 Probationers in Connecticut 17° and Geor-
gia 171 must “maintain a correct life.”

In Missouri it is mandatory that the probationer report
at each regular term of court to furnish proof that he has
conducted himself as a law-abiding citizen.172 The terms
which the court imposes in Nebraska may include a 'condi-
tion that the defendant avoid unlawful or vicious habits.173
A condition that the probationer refrain from further vio-
lation of the law is commonly imposed in Pennsylvania.174
In Virginia a defendant is placed “under the supervision of
a probation officer during good behavior.” ”5 The rules and
regulations of the board in Washington require that the
probationer must at all times abide by the law.176

Whereabouts.—If there is to be any hope whatever of
the rehabilitation of an oifender, it is, of course, fundamen-

165 45 Stat. 1099 (1929), 21 U. S. C. § 233 (1934). For further consideration
of the question of hospitalization, see post, p 251.

163111. Stat. Ann. (Jones, 1936) § 37—774

1" Mich. Comp. Laws (Mason, Supp. 1935) § 17373.

183 Mid.

16"District of Columbia, Massachusetts, Pennsylvania, Vermont, Virginia.

17° Conn. Gen. Stat. (1930) § 6519.

171 Ga. Code (1938) § 27-2705.

17’ Mo. Stat. Ann. (Vernon, 1932) § 3810.

173Neb. Comp. Stat. (1929 § 29—2212.

174 See 00mm. v. Walker, 36 Pa. Cy. 414, 18 Pa. Dist. 926 (1909)

175 Va. Code (Michie, 1936) § 1922b.

“8 Rules, Washington Board of Prison Terms and Paroles.

246

tal that he remain within the jurisdiction of his supervising
ofiicer and that such officer shall have an opportunity of
regular contact with him. For this reason, if for no other,
a condition relating to the whereabouts of the probationer
is at all times necessary and proper. The conditions of this
nature which are outlined in the statutes may relate only
to the defendant’s remaining within the jurisdiction or
State 17" or they may refer more specifically to changes of
abode within the jurisdiction itself.178 According to the
statute of Illinois 179 and Michigan 18° the court granting
probation is required to include the order that the defend-
ant is not to leave the State without the consent of the court.
It appears that in Michigan, at least such consent will be
granted wherever it seems expedient for reasons of family
or employment.”1 In Kentucky, Nebraska, North Carolina,
and Oregon the courts may require the probationer to re-
main within a specific place.182 New Jersey courts in grant-
ing probation may impose a condition that the offender
shall not change his residence without the permission of
the court or probation officer.183

In Colorado a probationer must report any change of
address or employment; further, he must not leave the State
without the court’s permission.184 In Wilmington proba-
tioners may not leave the city without permission.185 Proba-
tioners of Georgia are required not to leave the jurisdiction
without permission.186 It is a usual term of probation
in Minnesota that the defendant stay within the terri-
torial limits of the State and county. In Jackson County,
Mo., the probationer’s sponsor must agree to help locate
him if he leaves the jurisdiction without permission.

1" Illinois, Michigan.

178 Ky. Stat. (Carroll, 1936) § 979b—7; Neb. Comp. Stat. (1929) § 29—2212;
N. J. Laws 1929, ch. 156, § 3; N. C. Laws 1937, ch. 132; Ore. Code Ann.
(Supp. 1935) § 13—1146.

179 Ill. Stat. Ann. (Jones, 1936) § 37—774.

19° Mich. Comp. Laws (Mason, Supp. 1935) § 17373.

131 Johnson, Probation for Juveniles and Adults (1928) 167, 185.

183 Supra, note 178.

1’33 Supra, note 178.

134 Rules of Court, 2d, 3d, 4th, 7th, 9th, 10th, 14th Districts, Colorado.

135 Rules of Court of General Sessions, Wilmington, Del., I.

18“ Shamblin V. Penn, 148 Ga. 592, 97 S. E. 520 (1918) ; Dickson v. Dummy,
162 Ga. 210, 132 S. E. 911 (1926).

247

The condition that the probationer remain within the
jurisdiction is commonly imposed in Pennsylvania. Pro-
bationers are permitted to leave, however, when rea-
sons of family, health, employment, or the general wel-
fare of the probationer appear to justify it. The probation
oflicers of some courts make informal arrangements for su-
pervision by out-of-State officers. In Vermont the proba-
tioner must notify the officer of any change of address and
he may not leave the State without permission. Proba-
tioners in Washington may not change either their place of
residence or employment without the approval of their
parole ofiicer.18"

Reports and visita—The statutes generally make some
provision with regard to the reports of the probationer or
the visits of probation officers. In many States where the
matter seems to be handled somewhat perfunctorily the
probationer may be required to mail a written report con-
cerning his conduct and employment; in others he is re-
quired to appear in court to report his progress. The stat-
utes do not always furnish a reliable guide as to the thor-
ouglmess or effectiveness of conditions regarding the pro-

ationers’ reports. What may seem on paper to be a very
uperficial system of keeping in touch with offenders may
1ave been expanded into a very satisfactory service by effi-
ient probation departments. On the other hand, appar-
ntly rigid rules in the statutes with regard to this matter

ay be disregarded in practice due to the lack of funds for
arrying statutory rules into effect or to the generally lax
ttitude toward probation prevalent in many areas.

In California monthly reports to the probation officer by
he defendant, either mailed or brought in person, are gen-
rally required in all counties}88 Rules of court in Colo-
ado require probationers to report to the probation oflicers
n the first day in the first week in each month.”9 The usual
ype of condition mentioned in the statutes is merely a re-
uirement that the probationer report to the officer as di-

187 Rules, Washington Board of Prison Terms and Paroles.
135 See post, ch. VIII.
159 Supra, note 184.

73115—39—v0L. n

 

17

248

rected.19° Statutes in other States may specify in addition
that the probationer must permit the officer to visit him at
his home 191 and answer all reasonable inquiries on the part
of the officer. In Nebraska the probation ofiicer may require
reports apart from the terms of the probation order. By
statute, Illinois courts must impose a condition that the
defendant report once a month, or as often as the court
directs, concerning his whereabouts, conduct, employment,
and other matters.192 The court’s duty to impose a condi-
tion that the defendant render monthly reports, either in
person or in writing, to the probation officer is mandatory
also in Michigan.193 Defendants in Rhode Island are usu-
ally required to report to the probation officer in person once
a week.194 A usual condition in Minnesota is that a report
be made in person once in every 2 weeks. Probationers in
Wilmington must report as directed to the probation ofli-
oer.”5 If the defendant is employed outside the State, he
makes his report by mail, but it is countersigned by some
responsible person where he is living.196

In some States, probationers report not to probation ofli-
cers but to the court. Idaho probationers must report to
the court at one or more regular terms each year during
the period of probation; they must also furnish, at their
own expense, proof in writing that terms and conditions
have been complied with.197 Some States which require that
the probationer report to the court at stated intervals in—
sure such appearances by the requirement of bonds. This
is done in Kansas.198 In Missouri the probationer must re-
port at each regular term of court during the period of his
parole to furnish proof that he has complied with condi—
tions and conducted himself as a law-abiding citizen.199 Ap-

190 Conn. Gen. Stat. (1930) § 6519; Ga. Code (1933) § 27—2705; Ky. Stat.
(Carroll, 1936) 5 97913-7.

191 Neb. Comp. Stat. (1929) § 29—2212; N. J. Laws 1929, ch. 156, § 3; N. C.
Laws 1937, ch. 132.

1” Ill. Stat. Ann. (Jones, 1936) § 37—774.

193 Mich. Comp. Laws (Mason, Supp. 1935) § 17373.

19‘ R. I. Gen. Laws (1923) ch. 403.

195 Rules of Court of General Sessions, WilmingtOn, Del., I.

19° Id. § 6.

197 Idaho Code Ann. (1932) § 19—2503.

198 Kan. Gen. Stat. Ann. (1935) §§ 20—2121, 62-2205; State v. Harris, 116
Kan. 387, 226 Pac. 716 (1924).

109 Mo. Stat. Ann. (Vernon, 1932) § 3815.

249

pearance bonds are also required in Tennessee and the pro-
bationer must attend each term of court or any regular or
special term after 5 days’ notice.200

The usual terms in Ohio include regular reports to the
probationer oflficer.201 A condition commonly imposed in
Pennsylvania is one that the probationer report monthly,
either by mail or in person. The rules of the courts and
the State commissioner in Vermont require a report in
writing to the State officer once a month. Moreover, ‘a
defendant must keep his house. open at all times to the.
probation officer. Monthly reports to the parole officer are.
required in Washington.202

Identification—Only two jurisdictions make special pro-
vision for any regular system of identification of probation-
ers, as one of the conditions of probation. The California
statute provides that where there are facilities for taking
fingerprints this must be done and a record kept.”3 One of
the conditions of probation in Wilmington is that the of-
fender must furnish the probation oflicer with a photograph
within 10 days of release?“ In many of these States, the
need for a means of keeping permanent identification rec-
rds is recognized and is made a part of the investigative
rocedure?"5

Impfisonment.—Usually probation is defined in terms of
ontradistinction to parole, the fundamental difference be-
ng the fact that parole presupposes a term of imprison-

ent prior to release under supervision while probation
oes not. Actually, the distinction will not hold in all
ases since a few jurisdictions permit the imposition of a
ail term as a condition of probation. On its face the im-
osition of such a term would seem to be a flagrant mis-
onception or disregard of the underlying principles of the
ntire probation scheme. It can be argued that probation
ame into existence for the very purpose of obviating the

20“Term. Code Ann. (Williams, 1934) § 11802.2.

”Report, County Dep’t Prob., Cincinnati, 1931.

”Rules, Washington Board of Prison Terms and Paroles.

”3 Cal. Pen. Code (Deerlng, 1937) § 1203.1.

20‘Rules of Court of General Sessions, Wilmington, Del., I.
’05 See ante, ch. V.

250

necessity for imprisonment in cases where it appeared to be
either unnecessary or prospectively harmful; therefore, a
condition of imprisonment is a misapplication of the pro-
bation doctrine. In reality, probation laws which author-
ize courts to impose a term in jail prior to probationary
release may fulfill a very real need in the probation system.

California seems to have been the first State to enact a
statutory provision permitting imprisonment in a county
jail as a condition of probation.206 At the present time the
probation law permits incarceration in the county jail for
a period not exceeding the maximum term fixed by law for
the offense. Where such maximum time is less than 2
years, the period of suspension may not continue for more
than 3 years.207 Thus a period of probationary supervision
following the jail term is assured. The California provi-
sion has been assumed to be constitutional.208 The court
cannot order a second jail term after the expiration of the
first, even though the order is entered during the probation
period.209 However, the jail term may be extended before
the original term has expired.210

In 1931 the Michigan legislature authorized the courts
to impose a sentence of not more than 60 days in the county
jail as a condition of the probation order.211 This statute
seems to have been prompted by a decision rendered shortly
before its passage which ruled that a condition requiring
service of a jail sentence was unauthorized.212 The Iowa
court has approved a “parole” order which suspended exe-
cution of sentence on condition that the defendant serve
30 days in the county jail, the theory being that since the
court could have ordered incarceration without “parole,”
the defendant could not object to the more lenient treat-
ment accorded him.218

306 Cal. Stat. 1927, p. 1493.

’0' Cal. Pen. Code (Deerlng, 1937) 5 1203.1. The court may also place the
probationer in a road camp or jail farm where these are available. Ibid.

“In re McVeity, 98 Cal. App. 723, 277 Pac. 745 (1929).

1300In re Hazlett, 137 Cal. App. 734, 31 P. (2d) 448 (1934).

31° In re Marcus, 11 Cal. App. (2d) 359, 53 P. (2d) 1021 (1936).

211 Mich. Laws 1931, Act 308, Mich. Comp. Laws (Mason, Supp. 1935) §
17373.

1’12 People v. Robinson, 253 Mich. 507, 235 N. W. 236 (1931).

213 State v. Kelly, 217 Iowa 1305, 253 N. W. 49 (1934).

251

It is not clear whether the Federal courts may impose a
condition of jail imprisonment as a term of the probation
order. In United States v. Murray?“ it was held that after
service of sentence had begun, probation could not be
granted, on the theory that confusion and overlapping of the
release procedures of pardon, parole, and probation would
result if the probation law were interpreted otherwise.
However, the Federal parole law does not apply to persons
receiving short jail sentences, and in such cases the possi-
bility of the confusion of release procedures is remote.215
One district court has held that by expressly retaining juris-
diction over the case, probation may be granted after
partial service of a jail sentence.218
Conditions of hospitalization may properly be imposed
y Federal courts in some cases. Where probation is

anted a drug addict it may be on condition that he submit
0 treatment at a United States narcotic farm until dis-
harged therefrom as cured?17 In a sense such a condition is

effect a condition of imprisonment, since the probationer
s confined in a place designed primarily for the treatment
f prisoners serving out their sentences. It is not clear
hether the character of the institution to which a defend-
nt is confined determines the validity of a condition of
ospitalization in jurisdictions where conditions of im-
risonment may be invalid in the absence of a statutory
uthorization.

Undoubtedly the courts may in some instances feel that

short period of confinement may be the most beneficial
reatment for a particular offender. However, the court

ay not wish the confinement to continue for a period equal
0 that required of convicts before they become eligible for
arole. Frequently the parole statutes require at least one-

'rd of the sentence to be served before the inmate may be

eleased on parole.218 Moreover, the judge may not wish
lose control over the particular case, which would be the
esult if a final commitment to an institution were made.

214 275 U. S. 347 (1928).

215 See Archer v. Sneak, 10 F. (2d) 567 (D. C. Ga. 1926).

21" United States v. Wittmyer, 16 F. Supp. 1000 (D. C. Nev. 1936).
21" Supra note 165.

’18 See Parole Volume.

252

Therefore, a condition of jail imprisonment for a relatively
short period may in some cases supply the answer to the
court’s dilemma. It may be that such considerations influ-
enced the legislatures of California and Michigan to au-
thorize their courts to make jail confinement a condition
of probation.

Even though the court does not impose such a condition
in the formal order of probation, in actual practice the de-
sired result may be achieved. The period during which the
defendant is confined while awaiting trial, if he has not
been released on bail, may be a suflicient taste of imprison-
ment. Also, where the court has the power to continue a
case for sentence for a limited period following convic-
tion, the same result may be achieved.

Conditions in special eases.—For many years in North
Carolina the only adult probation for which there was
any provision in the statutes, was a procedure for the re-
lease of persons convicted of second degree prostitution.219
Enactment of the 1937 general adult probation law in
North Carolina did not affect the older statute which per-
mits defendants convicted of the crime to be placed on
probation “in the care of a probation ofiicer designated by
law, or theretofore appointed by the court.” 22° Girls and
women so released must be under the care of a woman
officer.221 The statute further provides that probation may be
granted a person infected with a venereal disease only on
such terms and conditions as will insure medical treat-
ment therefor and prevent the spread of the disease?” In
Connecticut,”8 New York,”4 and Vermont 225 there are sim-
ilar provisions with regard to the supervision of women
convicted of prostitution, and with regard to the medical
treatment of those infected with a venereal disease.

W ritten notice and acceptance—The Massachusetts law
requires the probation officer to give every person released

21” Second degree prostitution under the North Carolina law means a first
violation of the prostitution statutes. N. C. Code Ann. (Michie, 1935) § 4361.

2’0 N. C. Code Ann. (Michie, 4935) § 4362.

“Mid.

mlbid.

223Conn. Gen. Stat. (1930) § 6226.

1:“N. Y. Code Cr. Proc. § 891—21.

325 Vt. Pub. Laws (1933) §§ 8616, 8617.

253

on probation a written statement of the terms and condi-
tions of his release.226 Apparently this is only directory
and for the purpose of obviating any uncertainties as to
the terms on the probationer’s part and it can be changed
at the will of the court?27
It is doubtful whether, as a matter of law, a defendant
can refuse probation. However, there is some language in
Marks v. Wentworth 228 which indicates that Massachusetts
courts have some feeling that a defendant may insist on a
final disposition of his case and refuse to have the action
against him continued for an indefinite period. It is true
that the court in Marks v. Wentworth was concerned par-
ticularly with the Massachusetts practice of “filing” crim-
inal cases but the case does furnish some ground for believ-
ing that the question of a defendant’s power to refuse pro-
ation and insist on commitment has not been finally settled
'n Massachusetts. In the Went/worth case the court said
hat the “court, with the consent of the defendant, after a
erdict or plea of guilty in a criminal case, when for good
ause it seems best not to impose sentence immediately” may
lace the case on file. “But the case cannot properly be
laced on file without the consent of the defendant. * * *
lthough this practice formerly prevailed only in the higher
ourts, it was extended by statute to the police, district,
nd municipal courts. * * * But when the statute gave
0 these courts authority to place complaints on file, it did
0t authorize such a disposition of a case against the objec-
ion of the defendant.” 229 The Vermont law provides that
he probation oflicer must furnish the probationer with a
itten statement of the terms of his probation,230 and, fur-
her, that the defendant must assent to the terms before
eing released into custody.231 From this it is not clear
rhether a defendant may refuse probation entirely. Only
ne Federal case was found which passes on the question
f acceptance.232 Few cases of this nature are likely to

226Mass. Gen. Laws (1032) ch. 276, § 85.

32’ Comm. v. McGovern, 183 Mass. 238, 66 N. E. 805 (1903).

m199 Mass. 44, 85 N. E. 81 (1908).

”Id. at 45, 85 N. E. at 82.

”Vt. Pub. Laws (1933) § 8878.

331Ibid.

232Cooper v. United States, 91 F. (2d) 195 (C. C. A. 5th, 1937).

254

arise but in Cooper v. United States 233 the court disagreed
with the contention “that probationflike pardon, may be
refused by the convicted person.” In the language of the
court, “the [probation] act vests a discretion in the court,
not a choice in the accused.”

Most of the States require the probation oflicer to fur-
nish probationers with a written statement of the terms
of the release and to instruct probationers regarding such
conditions.234 In Colorado the probation officer and the
probationer must sign the written statement of conditions,
a copy of which is given to the probationer.235 In the fourth
and eighth districts the probation order of the court con-
tains the terms and conditions and is signed by the pro-
bationer, agreeing to such terms.238 Generally such written
statements are furnished probationers merely for the pur-
pose of making clear to them their status and duties while
under supervision, and not with any idea of gaining the
defendant’s consent to the terms which the court has placed
upon him.

The whole question of acceptance in probation is contro-
versial as questions arising with regard to this matter have
never been clearly defined, much less definitely answered.
Most frequently the defendant’s power to accept or refuse
probation has been considered either with regard to condi-
tions or at the time of revocation. In the cases dealing with
revocation proceedings there has been some talk of implied
acceptance,237 but where the question has arisen earlier in
the probation procedure, that is, at the moment of granting
probation, a circuit court of appeals has said plainly that
the defendant has no voice in the matter.238 Actually, it will

9'33 Id. at 199.

234 Cal. Pen. Code (Deering, 1937) § 1203.12; Colo. Stat. Ann. (Michie, 1935)
ch. 140, § 5; Conn. Gen. Stat. (1930) § 6516; Ga. Code (1933) § 27—2704; Ill.
Stat. Ann. (Jones, 1936) § 37—781; Ind. Stat. Ann. (Burns, 1933) § 9—2213;
Ky. Stat. (Carroll, 1936) § 979b—11; Mass. Gen. Laws (1932) ch. 276, § 85:
Neb. Comp. Stat. (Kyle, Supp. 1935) § 29—2211; N. Y. Code Cr. Proc. § 936,
as amended N. Y. Laws 1933, ch. 727; N. C. Laws 1937, ch. 132; Ohio Code
Ann. (Throckmorton, 1936) § 13452—8; Vt. Pub. Laws (1933) § 8878; Va. Code
(Michie, 1936) § 1922d.

235 Supra, note 234.

236 Rules of court.

237 See post ch. IX

233 Supra, p. 253, note 232.

255

be a rare defendant who will raise an unqualified objection
to receiving probation rather than imprisonment.
However, it is conceivable that defendants may resent
ertain of the terms under which their probation must be
erved, and in that case the question is on a somewhat differ-
nt footing than where there is a refusal to accept any pro-
ation at all, or where a defendant has undertaken to carry
ut the terms of his release and has later violated them. In
eality, courts cannot enforce any imposed condition other
ban by revocation of the probation and execution of the
rescribed sentence. The California court has indicated
hat an offender must comply with the terms as the trial
ourt has fixed them or he must go to prison and pay there
.he penalty for his crime.239
How anomalous a situation might arise under existing
ecisions is not hard to imagine. In substance the court
ays to the probationer: “You have no choice in the matter;
he question is for me to determine and I say that you may
ot go to prison but must return to your place in the
ommunity under the supervision of a probation officer
nd observe the terms of probation which I am about to
pose. If you do not observe them, I shall revoke your
robation and commit you to the State’s prison under the
entence already imposed.” If the defendant expresses then
nd there his objection to the conditions fixed, it would be
11 unwise court which would insist on his release. In effect,
c defendant has refused probation. Were he to be re-
ased to carry out his threat of noncompliance, apparently,
e only weapon at the court’s command is imprisonment,
n which the defendant had insisted at the outset.

f’ SUMMARY
Iii/is. noteworthy that in a majority of the States proba-
on conditions of a pecuniary nature are those most fre-
uently encountered in the statutes. Such conditions relate

costs, bonds, fines, restitution, and support. When con-
itions which contemplate money payments of one type
r another do not operate as conditions affecting eligibility

239People V. Blankemhip, 16 Cal. App. (2d) 606, 61 P. (2d) 352 (1936).

256

they have undoubtedly an important place in the proba-
tion procedure. However, great cafe should be exercised
both in the imposition and in the enforcement of such terms
that injustice may be avoided.

The prevailing emphasis on conditions of this nature, with
a resultant lack of development of probation conditions
which relate to the general conduct of the probationer and
the environmental factors affecting him, is to be regretted.
This state of affairs may be explained in some measure by
the fact that as a whole probation has developed sporadi-
cally and without direction or coordination. As a result
statutes set up few definite behavior standards for proba-
tioners. It is true, of course, that conditions of this nature
can be better determined by judges dealing with the individ-
ual cases than by legislatures attempting to decide upon a
system of conditions which will meet the needs of a majority
of hypothetical defendants.

However, there is evidence that it is the tendency of most
judges to impose merely the statutory strictures and no
more. This happens, among other reasons, because the
great pressure of court business militates against any con-
siderable individualization of treatment and because courts
hesitate to risk possible reversals on appeal of unusual
terms. The relative scarcity of appellate court decisions
on the question of proper conditions is some evidence of the
fact that where any statutory standards have been set up at
all, trial courts have been content to go no further in the
matter of prescribing conditions than the statutes suggest.

i Conditions, apart from those of a pecuniary nature,
which occur in the statutes with any degree of regularity
from State to State, are generally those which outline the
probationer’s duties with regard to reporting, remaining
within the jurisdiction, and maintaining steady employ-
ment.“ There are scattered references to the probationer’s
duty to abstain from intoxicants, avoid bad company, keep
reasonable hours, or undergo medical treatment as di-
rected. However, there is no uniformity of statutory
standards of behavior. Wise provisions with reference to
the treatment of offenders infected with venereal disease
have been adopted in only four States—Connecticut, New

257

York, North Carolina, and Vermont. On the whole, the
problem as to the conditions which should be imposed upon
probationers has been sadly neglected. It has aroused less
controversy and comment than almost any other aspect of
probation work, although obviously an important phase of
probation procedure.
{Probation conditions prove themselves to be of the great-
t utility when they are designed to meet the particular
eeds of individual cases. The theory of an individualiza—
ion of justice is one of the underlying tenets of the proba-
ion system. For this reason a policy of fixing by legis-
ative act terms to meet all cases which may conceivably
rise will provte to be impractical, inadequate, and often m-
urious. MOst Of the States 1n fact have left the determina-
ion of conditions largely to the discretion of their courts.
his is as it should be since the court, aided by the proba-
ion officer, is closer to the circumstances of the individual
fi'ender than the legislature can ever be.
Whether courts have assumed their duty to fix special
onditions to meet the requirements of each case is doubtful.
ertainly there is some basis for the assumption that courts
ost often discharge this duty with nothing more than an
junction that the defendant observe the law and be of
ood behavior. As stated above, statutes have named some
rms which the court may impose in its discretion, but the
ndency has been to apply the enumerated conditions in
to, omitting only those which are most obviously inappli-
ble. If probation statutes left the matter of conditions
the court’s discretion, but in addition imposed an aflirm-
ive duty on the court to prescribe conditions of some
dividuality and applicability to the peculiar circumstances
each case, an improvement in this aspect of probation
ork might result.

CHAPTER VIII
SUPERVISION OF ADULT PROBATIONERS

INTRODUCTION

EProbation conditions are imposed primarily to furnish a
means of controlling the ofienders’ conduct during the pe-
riod they remain in probationary custody ,1 Observance of
conditions should be the least which courts and officers ex-
pect in the way of good conduct. Whether or not the
probationary period becomes anything more than a mere
interim of law observance and minimum good behavior will
depend upon the degree and quality of the supervision which
the probation oflicers exercise over those committed to
their care.

In a system like probation where each phase of the pro-
cess of treatment exerts significant influence upon the
phases which follow, it is perhaps inaccurate to point to
any one procedure as being more important to the final
effectiveness of the system than any other. The type of
administration and the selection of personnel will in
large measure determine the adequacy of the investigation
by means of which probationers are chosen And this
choice of those to whom supervision is to be applied pre-
determines in large measure what the supervision will ac-
complish. For these reasons, the supervisory process can-
not, without qualification, be termed the most important
element in probation. Certainly, however, it is the penulti-
mate goal toward which the preceding processes look.
Supervision will be materially handicapped if its proper
foundation in the discriminating selection of offenders for
treatment has not been laid. Conversely, investigation be-
comes futile in the face of loose and perfunctory supervi-
sion. For, despite the close interrelation of all the processes
of probation treatment and the reciprocal effect which they
exert upon one another, supervision is the nucleus around

(259)

_ 260

which the system is built. The nature of this supervision
is, in the final analysis, the determining criterion by which
probation itself is evaluated and defined.

In its simplest terms," supervision is the oversight which
the probation officer exercises over those committed to his
custody. Whether, in practice, it becomes something more
meaningful than mere oversight depends upon many con-
ditionst'} If the period when the oifender is supposed to be
underwshpervision is merely a time spent under suspended
sentence “with the incidental advantages of oversight and
admonition on the part of the probation officer and without
recourse to severe measures” 1 when the admonitions are not
heeded, probation itself is little more than judicial clem-
ency. Few ofl’enders can be expected to transform them-
selves into law-abiding citizens without some degree of as-
sistance. “Probationers do not, in the absence of active
probation service, carry long in mind the efl’ects of the
scare of having been in court, and do not materially alter
their manner of life simply because the judge or the pro-
bation oflicer advises them to turn over a new leaf.” 2
“Probation cannot, moreover, become a constructive force
in the administration of criminal justice if supervision
amounts only to discipline directed toward holding in check
antisocial tendencies during the period? Mere observance
of conditions or nonarrest for another offense do not indicate
that the probationer has changed for the better.3 Criminal
proclivities are all too often held in check during the entire
probation period, only to break out again as soon as the fear
of sentence is removed.‘

 

1 Cooley. Organisation of a Probation Office, in Glueck, Probation and Crimi-
nal Justice (1933) 49, 65.

1'Towne, Probation and Suspended Sentence (1916) 7 J. Crim. L. 654, 657.

’Ibid.

‘ Bolster, Adult Probation, Parole and Suspended Sentence (1910) 1 J. Crim.
L. 438, 443. With years of experience in probation work this important fact
has come to be recognized more and more by probation oflicers. See, 6. 0.,
Halpern, A Decade of Probation (an unpublished manuscript) 16—17:

“The probation officer began to see that nothing short of an individualized
approach to the problem which each probationer presented could possibly help
to eradicate the maladjustments responsible for the behavior patterns and the
delinquencies. The probation officer became more understanding and less
arbitrary in his demands, less dogmatic in his evaluations, and began to
appreciate that it was in the mental attitudes of probationers that the most
fertile field for his efforts could be found. With this understanding and

261

It is the element of constructive treatment in probation
supervision which places probation as a criminological
method beyond either leniency or punishment. “In the con-
ventional attitude of the criminal law it is a form of pun-
ishment, but the purpose back of it is educational, reforma-
tive, reconstructive; to use a scientific term, it is thera-
peutic.” 5

If this purpose is to be achieved, probation supervision
must be “preeminently social case work,”8 or, more accu-
rately, “social case work with the added power of the law
behind it.” 7 It should be primarily “planned guidance
based on a careful study of the probationer’s problems, ca-
pacities, and limitations.” 8 Rightly understood, probation
supervision is “one of the highest forms of social service
work. It involves making use of all the social, educational,
recreational, moral, and religious resources of the proba-
tioner’s neighborhood to aid in his rehabilitation.” 9

THE SUPERVISING AGENCY

The ositive essentials of a probation system are few.
First the courts must possess the power to release ofi'end-
ers under suspended sentence. Second, there must be avail-

olerance came also the realization that the probationer had to be educated to
evelop resources within himself, since some time or other the period of
robation had to end and the probation ofiicer no longer would be able to
upply the crutch upon which the probationer could lean.

“The potentiality of probation treatment as a means of bringing about per-
anent rehabilitation was envisaged, in contrast to the narrow view which
nce prevailed, that probation was merely a form of enstodial care and that
he probation system was relieved of responsibility with the discharge of the
robationer from probationary oversight.

“These changing attitudes have brought about a merging of the three avenues
f approach; the sociological, the psychiatric, and the psychological. The
eat danger, however, for probation oflicers in their reliance upon the inter-
retation given by the psychiatrist, is that they will adopt a hesitant attitude
n placing confidence in their own interpretation of the material which their
ase histories contain, and permit the psychiatrist to do their thinking for
hem. No matter how well developed the methods used for character building,
or the changing of mental attitudes, and for the transference of objectives,
ese techniques cannot be made workable unless the probation oflicer has the
apacity, the vision, and the force to bend them to his will.”

5Pena1 Institutions. Probation and Parole (1931) 185, Report No. 9 of the
"ational Commission on Law Observance and Enforcement.

oBates, Prisons and Beyond (1936) 282.

7 Cooley, loc. cit. supra note 1.

8Sullivan, Principles and Values in Case Recording (1936) Yearbook of the
ational Probation Association 240, 251.

9 Hughes, Probation Progress (1933) 23 J. Crim. L., 915.

262

able an agency for the supervision of persons thus released.
A system must combine these two features before it can be
properly classified as probation, but this does not mean that
the establishment of this bare framework will create an ef-
fective probation system in any community.

The adoption of the Massachusetts statute of 1878 marks
the official introduction of probation into the American
penological scheme. This statute, however, included only
one feature which was new to the unofficial system, already
in operation, of suspension of sentence with, volunteer over-
sight. That feature was the provision for a supervising
agent of official standing with legally prescribed duties.
There is, then, historical warrant for singling out the su-
pervising agency as the characteristic feature of the peno-
logical treatment known as probation.

Statutory provision for a supervising agency—Legal
provision for supervision is indispensable. So-called pro-
bation statutes which merely give courts the authority to
place offenders on “probation” with only casual and scat-
tered reference to incidental duties of “the probation of-
ficer” will too often fail of their purpose. Only when the
law provides expressly for the appointment of a supervis-
ing agency can there be any assurance that one will be
available when it is needed.

In only 3' of the 41 jurisdictions where a probation law
has been enacted 1° is there no statutory provision at all for
official supervision of adult probationers. The Kansas law
gives the district and common pleas courts of the State
authority to appoint a patron for persons released on pro-
bation.11 Since the statute makes supervision entirely
discretionary with the court and voluntary on the part
of the patron, even volunteer oversight is not assured
for all cases. Although in Iowa the State parole board
has some duty to supervise probationers,” it is in actual
practice unable to assume the extra work of supervising
probationers in addition to parolees. N o provision is made
for salaried probation ofiicers in Iowa, but the court, or the

10 For the jurisdictions which have no probation law see ante-ch. I.
11 Kan. Gen. Stat. Ann. (1935) § 62—2211.
1”Iowa Code (1935) § 3803.

263

parole board, may appoint a private person to act as su-
pervisor.13 In Idaho the courts may place a probationer
under the supervision of the juvenile probation officer or of
any other designated persons.” In effect, a fourth State,
West Virginia, falls within the category of States without
statutory provision for regularly appointed probation of—
ficers. There, although the law designates the sheriff's of
the several counties as probation officers,15 the statute cannot
properly be regarded as one providing for real probationary
oversight.

In a few States there is a legal provision for regularly
appointed oflicers only in certain areas of the State. Thus,
in Arizona, although there is a general statutory provision
charging the adult probation officer with general supervision
of all persons under suspended sentence,16 only counties of
the first class may have an adult probation officer.17 The
result is that in only one county of the State, Maric0pa
County, are adult probationers supervised by an officer ap-
pointed especially for that purpose. In one other county
in the State the juvenile probation officer serves for adults
but receives no extra compensation.

The Colorado statutes make reference to various duties
which the probation officer is expected to perform,18 but

rovide for paid probation oflicers only in the city and
ounty of Denver.19 In other counties the sheriff serves as
probation officer and is allowed the expenses actually in-
urred in supervision.“0 The Maryland statutes authorize
he employment of paid oflicers in Baltimore.21 For the
est of the State the only probation service is supplied by
olunteers and, although probationers may be placed in the
.ustody of the parole department,22 this is not done in prac-
ice. Nebraska provides for the appointment of probation

13Id. § 3801.

14 Idaho Code Ann. (1932) § 19—2501.

15 W. Va. Code Ann. (Michie, Supp. 1933) § 6134.

16 Ariz. Rev. Code Ann. (Courtright, Supp. 1936) § 5108.

1" In counties of the first class adult probation officers may be appointed
only with the approval of the board of supervisors. Id. § 5106.

13 See, 6. 9., C010. Stat. Ann. (Michie, 1935) ch. 140, § 5.

1" Colo. Laws 1931, p. 687.

”Colo. Stat. Ann. (Michie, 1935) ch. 140, § 5.

=1 Md. Ann. Code (Bagby, 1924) art. 41, § 55.

”Ital

73115—39—v0L. n 18

 

264

officers in the various counties of the State on the basis of
population: Counties where the population is more than
12,000 may have an officer paid by the county?3

Although Oregon 24 and Virginia 25 statutes prescribe the
method for appointing probation officers, no oflicers have
been appointed in either State, because no appropriations
for their payment have been made. In Oregon, moreover,
the law expressly forbids the payment of compensation to
probation officers by the State or any subdivision thereof.26
Since the cost of imprisonment in Virginia is borne by the
State, and the counties are charged with the maintenance
of probation oificers,27 the Virginia counties have preferred
not to appoint any officers. In another State, Montana,
there are no regular ofl‘icial Oificers for probationers al-
though the statute has attempted to make such provision.
The act does not provide for any officers with the sole duty
of supervising probationers. It does, however, state that
supervision is to be conducted by parole officers under the
authority of the board of prison commissioners.28 Since
there are no such officers the effect of all orders of proba-
tion is to place probationers under the control of the State
board of prison commissioners.” Similarly, in North Da-
kota the statutory provisions designed to provide field
supervision by an individual officer have no practical ef-
fect, since the officer designated has penitentiary duties 30
which leaves him no time for probation work. Under a
statute of 1909 31 which applied to cases punishable by im-
prisonment in the penitentiary, supervision was vested in
the trustees of the State penitentiary.” The duties of this
board have since been taken over by the State board of ad-
ministration.83

”Neb. Comp. Stat. (Kyle, Supp. 1935) § 29—2210.
’4 Ore. Code Ann. (Supp. 1035) § 13—1148.

25Va. Code (Michie, 1936) § 1922a.

2° Ore. Code Ann. (Supp. 1935) § 13—1148.

27Va. Code (Michie, 1936) § 1922a.

28 Mont. Rev. Codes Ann. (Anderson & McFarland, 1935) § 12083.
29Id. § 12080.

30N. D. Comp. Laws Ann. (1913) § 10955.

81N. D. Laws 1909, ch. 174.

”N. D. Comp. Laws Ann. (1913) § 10952.

88Id. (Supp. 1925) § 288b5.

265

In 16 jurisdictions the appointment of probation officers
is discretiOnary with the agency which exercises the ap-
pointing power. This group represents the largest number
of those jurisdictions which can be classified as having
adult probation, therefore, it may be said that as a general
rule in the United States the appointment of probation
officers is not mandatory. The discretion to appoint officers
in these jurisdictions is vested either in local courts or in a
central agency created for the State-wide administration
of probation.

Eleven of these sixteen jurisdictions 34 entrust the ap-
pointment of probation oflicers primarily to the discretion
of their local courts. Of these, two States 35 and the Federal
Government permit individual courts not only to appoint
the officers but to decide whether, in fact, such appointments
are necessary. In Indiana judges of the several courts
authorized to grant probation “may appoint one or more
probation officers, to serve such courts” as their needs re-
quire.88 The judge or judges of the common pleas courts of
any county in New Jersey may appoint a chief probation
oflicer,37 and, on application of the chief probation officer,
uch other oflicers as may be necessary.38 The judges of the

ederal district courts appoint probation officers for their
'urisdictions and by law apparently possess the power to de-

rmine the necessity of making such appointments,39 but
ince oflicers are paid out of funds made available through the
ureau of Prisons of the Federal Department of Justice, it
ollows that a probation officer will not be appointed in a
articular district unless funds for that purpose have been
llocated by the Bureau. Statutes in two jurisdictions, Dis-
rict of Columbia and Illinois, limit the number of officers
hich each court may appoint. In the District of Colum-
ia the supreme court for the District may appoint one
alaried probation officer; 4° the police court, one chief pro-

1“Connecticut, District of Columbia, Georgia, Illinois, Indiana, Massachu—
etts, New Jersey, New York, Ohio. Pennsylvania, Federal.

36Indiana, New Jersey. '

“Ind. Stat. Ann. (Burns, 1933) § 9—2212.

8“’N. J. Laws 1929, ch. 156, § 5.

83Ibid.

39 46 Stat. 503 (1930).

4" D. C. Code (1929) title 6, 5 424.

266

bation officer and two assistants; 41 both courts may appoint
as many volunteer assistants as are deemed necessary.42
The circuit courts for each county in Illinois ‘3 can appoint
one probation officer,“ and also necessary assistants, but the
number of assistants which any court may have is limited by
the size of the county served.45 City courts where the city
has 75,000 inhabitants or less may appoint one additional
officer. In counties having cities of more than 75,000 popu-
lation, the number of officers allowed to the county are “equal-
ly apportioned” between the cities and the county and the
appointments are divided among the city and the county
courts. In addition, a chief probation officer may be ap-
pointed by a circuit court where the other officers number
five, or a chief probation oflicer may be appointed by a body
of circuit court and city judges acting as a unit.46 County
courts must utilize the services of the officers appointed by the
circuit courts.47

With few exceptions the local courts in Connecticut and
Pennsylvania may decide for themselves whether probation
officers should be appointed. The superior court of each
county and judges of the criminal courts of common pleas
may appoint one or more probation officers.“'8 All inferior
courts in Connecticut must appoint an officer ‘9 with the ex-
ception of justices of the peace, who may appoint officers
pro tempore.50 Local courts in Pennsylvania may appoint
“a discreet person” to serve as probation officer whenever
it seems desirable and also necessary assistants.51 In
Philadelphia, however, it is mandatory that the board of
judges of the municipal court appoint a chief probation
ofiicer,52 but it is discretionary with the board of judges 53

“Ibid.

“Ibid.

“The superior court of Cook County is considered as a circuit court.
44111. Stat. Ann. (Jones, 1936) § 37—779.

45 Not more than one to each 50,000 population or fraction thereof.
46 Ill. Stat. Ann. (Jones, 1936) § 37-479.

*7 People v. Huyvaert, 209 Ill. App. 40 (1918).

43 The officers appointed may be male or female. Conn. Gen. Stat. (1930)
6515.

‘9 Ibid.

soConn. Gen. Stat. (1930) § 6520.

51 Pa. Stat. (Purdon, 1936) title 19, § 1053.

"Id. title 17, § 691.

“Ibid.

267 .

whether any assistants to the chief probation officer are
amed.

In four of the States 5“ where the appointment of proba-
ion officers is discretionary local courts actually name the
flicer but do not possess sole discretion to determine the
eed for one. The general probation statute in Georgia pro-
'des that the grand jury of any county may recommend to
he superior court judge that he appoint a county proba-
ion officer and such assistants as are deemed necessary.55

owever, the 1931 law provides that in counties having a
opulation between 70,000 and 7 4,000, bailiffs of the several
ourts are to serve as probation ofiicers without extra com-
ensation.56 Moreover, under a 1933 statute, in counties of
5,000 to 100,000 population, the superior court is directed
o appoint a county probation officer on the recommenda-
ion of the grand jury and with the approval of the county
ommissioners.57 Apparently, in the larger counties the
eorgia courts operate, with regard to the appointment of
robation officers, under the 1931 and 1933 statutes rather
han under the provisions of the general probation laws. 7

Every trial court in Massachusetts has power to appoint
uch probation ofiicers as it may from time to time deem
ecessary. In the superior court, appointments are made
y the chief justice upon recommendation of a committee
f justices.58 In the municipal court of Boston the statutes
pecifically provide that appointment shall be by the chief
ustice subject to the approval of the associate justices. In

e district courts appointments are made by the respective.
istrict justices, with the written approval of the adminis-
ation committee of the district courts, which committee

required to consult with the State board of probation as

the appointment of probation officers.59

The necessity for probation officers in a county in New
ork is determined by the local fiscal body which appro-

“Georgia, Massachusetts, New York, and Ohio.

55Police officers may not be appointed as probation officers; assistant officers
ay be of either sex. Ga. Code (1933) § 27-2703.

“Ga. Laws 1931, p. 154.

57 Ga. Laws 1933, p. 233.

58 Catheron v. County of Sun'olk, 227 Mass. 598 (1917).

”Mass. Gen. Laws (1932) ch. 276, § 83, as amended, Mass. Acts 1936.
. 360.

268

priates the funds and fixes salaries.60 Probation officers are
appointed by the county court where ‘a board of supervisors
is the fiscal body; where the fiscal authority is some other
body the appointment is made by the court certifying the
need for oflicers to the fiscal body.61 In Westchester and
other counties having a county probation department, the
county director is appointed by the judges of those courts
in the county which render probation service; the required
probation officers are then appointed by the director.62 In
New York county the court of general sessions appoints a
chief probation officer and two deputies; the necessity for
additional officers is determined by this court which also
fixes salaries.63

Authorization of the board of aldermen and recommenda-
tion of the board of estimate and apportionment is necessary
for the appointment of ofiicers in the special sessions courts
of New York City. When such authorization and recom-
mendation have been secured the officer is selected by a ma—
jority of the justices of the courts of special sessions.“ The
chief magistrate in the city magistrates’ courts appoints the
chief probation officer and deputies, while additional depu-
ties may be appointed upon authorization of the board of
aldermen and recommendation of the board of estimate and
apportionment.65 It has been held that the inferior criminal
courts of New York City are under a positive duty to
appoint probation officers.66

A county department of probation may be established in
Ohio by the judge of the court of common pleas of the
county with the consent of the board of county commis-
sioners. Ofiicers of this department are appointed by the
judge.67

60N. Y. Code Cr. Proc. §§ 928, 920, as amended N. Y. Laws 1933, ch. 727.

“Ibid.

"N. Y. Code Cr. Proc. § 938—a.

”Id. § 938. This statutory provision applies also to the county courts of
Kings, Queens. Bronx. and Richmond counties.

“N. Y. Inferior Cr. Cts. Act § 150, as amended N. Y. Laws 1933, ch. 746.

“$1.12. duty of the inferior criminal courts in New York City is a minis—
terial duty so that mandamus lies to compel such appointments. Benchin v.
Kempner, 143 App. Div. 125, 127 N. Y. Supp. 657 (2d Dep't 1911), afl'g 69

Misc. 410. 127 N. Y. Supp. 614 (Sup. Ct. 1910).
‘7 Ohio Code Ann. (Throckmorton, 1936) § 1554—1.

269

In five States 68 where the appointment of probation of-
cers is discretionary, such discretion is by law vested, not
the local courts, but in some officer or agency of the State
'tself. Three of these, Kentucky, Missouri, and Utah, have
tate-administered probation systems. In Kentucky, pro-
ation oflicers—not more than one for each judicial cir-
uit—are appointed by a director of probation and parole
ho is required to conduct competitive examinations from
ime to time to establish lists of persons eligible for such
ppoint'ments.69 Under the new Missouri law the regular
arole officers, who are named by the board of probation
nd parole, are authorized to act as probation officers for
ocal courts and “parole” boards upon written request of
he local judge or judges.70 The Utah Board of Correc-
ions is empowered to appoint a chief adult parole-proba-
ion oflicer under the 1937 act,71 and district oflicers are ap-
ointed by the board subject to the advice of the district
udges.72
Each county in Delaware may have one officer who is ap-
ointed by the chief justice and associate justices of the
tate.73 Probation oflicers are appointed by the governor
Maine except in Cumberland County,74 where appoint-
ents are made by the judges of the municipal court sub-
ct to the approval of a judge of the superior court resi-
ent in the county.75
It is notable that, of the 10 States 7“ where the laws as-
re the existence of some agency to supervise probationers,
77 have State-administered probation systems while in the
her 2 78 the State exercises a degree of supervision over
robation work.

68Delaware, Kentuoky. Maine, Missouri, Utah.

69Ky. Stat. (Carroll, 1936) § 9795—9.

7° Mo. Laws 1937, pp. 400—403.

“Utah Laws 1937, ch. 122, § 7.

”Id. § 9.

73 Del. Rev. Code (1935) § 4316.

74 Me. Rev. Stat. (1930) ch. 147, § 10.

"‘5 Me. Priv. and Spec. Laws 1905, ch. 346, § 4.

7‘ Arkansas, California, Michigan, Minnesota, North Carolina, Rhode Island.
ennessee, Vermont, Washington, Wisconsin.

7" Arkansas, North Carolina, Rhode Island, Tennessee, Vermont, Washington.
isconsin.

73 California and Minnesota.

270

In some of these 10 States the statute provides that the
central probationary authority or its director shall have
control or supervision of all probationers in the State. This
is true in Arkansas, where the State director of probation
and parole is reSponsible for the supervision of all State
probationers.79 The director is appointed by the State
board of pardons and paroles, upon civil-service examina-
tion.80 The commissioner of public welfare in Vermont,
who, as State probation officer, has charge of the State’s
probation service, is designated to exercise general
supervision over probationers,81 and empowered to appoint
deputy probation officers throughout the State.82 The su-
pervision of persons released on probation by the courts of
Washington is vested in the board of prison terms and pa-
roles,88 which has the power to appoint such employees as
it deems necessary, subject to the approval of the Governor.“
At the present time in Washington the personnel charged
with active supervision of probationers consists of the chief
parole officer, two assistant parole officers, and four field
supervisors. These oflicers primarily have charge of pa— '
rolees and recipients of conditional pardons.

The Wisconsin Board of Control, through its department
of probation, is charged with the supervision of all adult
felons on probation except in Milwaukee Countyf?‘5 At the
present time the board employs a staff of about 36 officers
for the supervision of parolees and probationers. In Mil-
waukee County the chief probation officer is appointed by
the district court.86 When misdemeanants are placed on pro-
bation in Wisconsin, the court may either place the offender
in charge of the board of control or “designate some suitable
person to act as probation officer.” 87

The bureau of probation, parole, and criminal statistics
has the power of “supervision and control” over all persons

”Ark. Dig. Stat. (Pope, 1937) § 12772 (a).

3° Ibid.

“Vt. Pub. Laws (1933) §§ 455, 457.

am. § 8871.

83Wash. Rev. Stat. Ann. (Remington, Supp. 1936) § 10249—6.
3* Id. § 10249—8.

85Wis. Stat. (1935) § 57.02.

8'Id. § 57.02 (4).

87Id. § 57.04 (2).

271

laced on probation by the courts of Rhode Island.88 The
irector of probation, who is chosen by the director of the
tate welfare commission,89 appoints all necessary assistants
n his division.90 Probation officers are selected from the
ntire State instead of from a particular jurisdiction.
Under the new Michigan law which went into effect in
937, the State corrections commission appoints ofiicers upon
he recommendation of the judge or judges of the various
ourts.91 The commission is authorized to divide the State
to suitable districts, and to appoint one, or more, proba-
'on officers for each such district.92 The new act, however,
oes not apply to counties having over 500,000 population.93
In North Carolina and in Tennessee the head of the cen-
alized State probation system appoints probation officers.
11 North Carolina where the director is required to appoint
e necessary probation officers, subject to the approval of
e State probation commission,94 the general import of the
atutory language is that the director is obliged to appoint
me oflicers.95 This would also seem to be the case in
ennessee where the commissioner of institutions, with the
proval of the Governor, is directed to appoint not more
an 10 “field officers of paroles and probation,” distributed
a regional basis corresponding to the regions of the social
curity administration of the State.96
The chairman of the Minnesota parole board acts as State-
ide director of probation and parole. The law provides
at the parole board may appoint not more than five pro-
tion agents.97 In practice the activities of these agents
e for the most part confined to the metropolitan centers,
inneapolis, St. Paul, and Duluth. By statute probation
Minnesota is chiefly under the control of local courts,
unty, and municipal. Probation officers are provided by
w, however, for the district courts of counties having

88 R. I. Acts and Resolves 1932, ch. 1930, § 2 (1).

89R. I. Acts and Resolves 1935, ch. 2250, § 56.
Ibid.

a“Mich. Comp. Laws (Mason, Supp. 1937) § 17377.

”Id. § 17543—34.

“Id. § 17543—36.

“N. C. Laws 1937, ch. 132, § 7.

95Id. passim.

“Tenn. Acts 1937, ch. 276.

WMinn. Stat. (Mason, Supp. 1936) § 9937.

272

more than 50,000 population.98 In counties in which there
are two or more juvenile courts established whose regular
sessions are held more than 50 miles distant from each other,
two officers are provided,99 and all persons placed on proba-
tion may be committed to the custody of the juvenile ofli-
oer.”0 In the district court of Hennepin County a chief
and other probation officers are appointed by the judges of
the district courts.101 Provision is also made for officers for
the district court of Ramsey County,102 and for the munici-
pal courts of Duluth and Minneapolis.103 Supervision of
probationers is further assured by the Minnesota statutes
by a requirement that, when an agent of the parole board
has been assigned for probation work in a particular county,
the chairman of the board must advise the district court in
the county of the assignment and the availability of the
agent’s services.“’4

The California law expressly provides that a defendant
whose sentence has been suspended must be placed in the
custody of an officer during the period of suspension.105 Al-
though there is some State supervision,106 probation in Cali-
fornia is administered on a county basis. The superior
court in each county has a probation department which is
designated by statute to consist of the oflices of adult proba-
tion oflicer, assistant adult probation officer, and deputy
adult probation officer.107 With the exception of San Fran-
cisco and Santa Clara Counties, probation officers appointed
under the juvenile court law, act as adult probation offi-
cers.”8 In most of the other counties the judge of the supe-
rior court appoints a county probation committee which
nominates probation officers for appointment by the judge.109

93 Minn. Stat. (Mason, 1927) § 10910.

”Ibid.

10° Id. § 10909.

101 Minn. Stat. (Mason, Supp. 1936) §§ 208—1, 208—2.

102 Minn. Stat. (Mason, 1927) § 10915.

103 Minn. Laws 1925, ch. 85, § 8; Minn. Stat. (Mason, 1927) § 241.

104 Minn. Stat. (Mason, Supp. 1936) §§ 9936. 9937.

105 Cal. Pen. Code (Deering, 1937) § 1203.1.

1°“ Cal. Pol. Code (Deering, 1931) § 2333.

10" Cal. Pen. Code (Deering, 1937) § 1203.5.

108 Ibid.

109 Where there is more than one superior court judge in a county the judge
who sits as juvenile court judge appoints the committee. Cal. Gen. Laws
(Deering, 1931) Act 3966, §§ 17 et seq. See also Cal. Code Civil Proc.
(Deering, 1931) §§ 131.1 et seq.

273

his committee is also supposed to exercise a “friendly
pervision” over probationers.110
In San Francisco and Santa Clara Counties there are
robation boards distinct from the committees Created un-
er the juvenile court law.111 In any county the method
if appointment may be designated by county. charter, in
hich case the State law is superseded}12 Thus, in Los
ngeles County, the probation officer is appointed by the
oard of supervisors.
The various factors which should be considered in the
lection of probation officers are discussed in chapter III
f this volume. In that chapter there is also an evaluation
f the relative merits of each of the several methods em-
loyed at present in the appointment of oflicers. This sec-
on has been concerned with the appointment statutes prima-
ly to discover the extent to which the existence of an agency
r the supervision of probationers is dependent upon the
iscretion of administrative bodies, local courts, and local
scal authorities.
Since probation “calls for personal and individual effort” “3
s most important process, that of supervision, can best be
trusted to active field workers concerned solely with the
eatment of the individual ofl'ender. If the process of
pervision in any locality is not to be a mere gesture, the
rvices of full-time probation officers must be regularly
ailable. Substantive data collected by the Survey reveal
at where discretion to determine either the need for
cers or the number required for adequate service is left
tirely to local courts and fiscal bodies, real probation serv-
e is either woefully inadequate or totally nonexistent.
ailure to provide necessary officers for supervision occurs
en more frequently where the final authority to appoint
determine the necessity for officers is left to local fiscal
thorities, than when this matter lies solely within the dis-
etion of the courts to be served.

10 Ibid.

111 Cal. Pen. Code (Deering, 1937) § 1203.6.

“2 Cal. Gen. Laws (Deoring 1931) Act 3966, § 18.

113Scan1an, Probation in the Social Work Scheme (1930) Yearbook of the
t. Prob. Ass’n 234, 238.

274

The relationship between oflieer and probationer.—Of-
fenders on probation can be dealt with effectively “only
individually and according to their special conditions and
needs.” 1“ Much of the effectiveness of supervision depends
upon the personal relationship established between officer
and offender and for this reason prescribed qualifications
for probation officers, while necessary to maintain a proba-
tion service of professional caliber, do not constitute the
entire equipment of a good probation ofiicer. “Education
and training are needed for effective probation work; but
alone they do not qualify one as a successful probation
officer. Without the element of human understanding, the
highly educated and trained probation officer * * "‘
will fail because a purely scientific outlook tends to see
the individual, not as a human person measurably unique
but as a parcel or group of the intertwined effects of causal
factors.” “5

While specific and generally reliable techniques of super-
vision have been developed, their successful application
demands tact, sympathy, and understanding on the part of
the officer. The probation officer must not be controlled by
sentiment. Neither can he function merely as a policeman.118
Harsh and repressive methods and an attitude of distrust
and suspicion on the part of the officer only hinder con-
structive treatment. “The nearest approach to failure in
probation work comes with the conception of it as a modified
form of imprisonment. The probation oflicer is not a police-
man, he is not a sleuth; he is an upbuilder.” 1”

While a man on probation has no right to complain if
his manner of life is supervised and controlled,118 he cannot
be expected to respond readily to the suggestions and plans of
an officer who fosters in him only dislike and distrust. The
relationship established “while one of respect should be
distinctly friendly. The authoritative nature of the over-
sight should be made clear to the delinquent but its pre-

114 Towne, loo. cit. supra note 2.

115 Ferris, The Case History in Probation Service, in Glueck, Probation and
Criminal Justice (1933) 135, 155.

11° Penal Institutions, Probation and Parole, op. cit. supra note 5, at 189.

117 Burleigh, Probation and Parole (1921) 12 J. Crim. L. 320, 324.

‘18 Ulman, Public Opinion and Judge’s Attitudes (1932—33) Yearbook of the
Nat. Prob. Ass’n 57, 61.

275

ominating spirit should be one of encouragement and
elpfulness. With admonition and firmness should go tact
nd sympathy. All this is necessary to keep the proba-
ioner in a receptive and responsive attitude.” “9
The burden of creating a friendly relationship with the
robationer falls almost entirely upon the oflicer. From his
'tial contact with the man committed to his care, he
hould strive to make clear his own desire to be of assist-
nce and his need for the cooperation of the probationer in
hat must be a mutual enterprise to reestablish the offender
n society. Not infrequently the necessity of winning the
robationer’s confidence and support is the most difficult
f all the problems of supervision. Since little of a con-
tructive nature can be accomplished without this founda-
‘on on which to build, it often occurs that the major por-
'on of the officer’s efforts during supervision are expended
gaining the probationer’s confidence. In many cases,
ubborn barriers erected over a long period of years have
be broken down. Moreover, fear of the officer and the
rison may set up a social distance, difficult to bridge.120
Though supervision methods should, at the very least,
friendly,121 the custodial aspect of the probation officer’s
uties cannot be overlooked. “* * * Probation is ex-
ected to provide a means of ascertaining whether those
leased under its oversight live up to the probationary
nditions. * * * Probation must supply not only a
iding and helping hand, but also a watchful eye.” 122 The
cer cannot allow probationers to drop out of sight by
e simple expedient of a change of address; 123 it is his duty
know the whereabouts and conduct of his charge at all
mes, and neglect of proper vigilance can only bring the
cer and the system which he serves into disrepute. Fur-
ermore, the failure to require adherence to the terms of
lease complicates the officer’s task. “Supervision cannot
ntinue in a lax, haphazard manner without arousing the
ntempt of the probationer.” 1"“ In addition, public sup-

11° Towne, supra note 2, at 661.

13° Sutherland, Criminology (1924) 580.
1'-’1Bur1eigh, loo. cit. supra note 117.

12’ Towne, supra note 2, at 662.

1”Cooley, loo. cit. supra note 1.

”4 Cooley, Probation and Delinquency (1927) 30.

276

port and cooperation are difficult tow obtain for any proba-
tion system which does not assure the community the mini-
mum protection of vigilance against renewed criminal ac-
tivity on the part of probationers. The discipline required
for this purpose need not amount to police surveillance,
however, as it is fundamentally “a modulated and discrim-
inating oversight” 12“ calculated to achieve the safety of law-
abiding members of the community without unduly repress-
ing or harassing the offender.

Essentially, probation * * * supervision must be done by
extraordinary people, in order to be measurably effective
"' * * To establish a personality in the ways of right living,
to bring back self-respect, to temper the embitterment that
sometimes leads to crime, to fire with new and more construc-
tive ambition, to win the confidence of the suSpicious and
warped mind—these are diflicult. To do them well requires the
devotion and capacity of men and women possessed with both
intelligence and spiritual integrity of a high order.m6

“Probation in its final analysis represents society’s faith
and science’s belief in the possibilities of altering and re-
forming human conduct.” 127 To transmit this faith and be-
lief into affirmative action is the probation officer’s basic
task in supervision. In 1910 in the first issue of the Journal
of Criminal Law and Criminology, Bolster wrote:128

The ofiicer should endeavor to stimulate the probationer’s
dormant energies for a morally healthful and useful life; de-
velop in him ideas of right living, duty, and sobriety, and am-
bitions along desirable and laudable channels; change those
impulses, points of view and attitudes toward life and society
which are wrong; develop new mental habits in place of old
ones; stimulate his confidence in his own capacity to control
himself and to succeed in a new and useful life. * * * In
sum and substance, the officer should endeavor to build up a
new character in the offender; to replace the perverted ideas,
impulses, and habits which he has acquired through his environ-
ment with a new stock, i. e., to reeducate him along lines
which determine conduct.

It is not to be expected that any probation oflicer can
“spread himself out so widely as to be all things to all

mBurleigh, loo. c-it. supra note 117.
123Moley, Our Criminal Courts (1930) 163.
1’7 Cooley, op. cit. supra note 124, at 32—33.
128 Bolster, loo. cit. supra note 4.

277

hose under his care.” 129 He must be considered “rather as
n analyst and organizer,” 13" prepared to draw upon all the
ndustrial, educational, recreational, medical, moral, and re-
igious resources of the community to assist him in his task
f rehabilitation.

THE SUPERVISORY PROCESS

Judging by the practices followed and the results
chieved in the more highly developed probation units, it
an safely be said that probation is capable of accomplish-

g the social regeneration of many offenders. To carry
ut a supervisory process that will accomplish this end is

extraordinarily diflicult task. Since supervision deals
ith variable and unpredictable human nature, much of its
plication must be by trial and error, but it need not be
rposeless and planless.

The sections of this study which follow do not describe

e supervisory process of any single probation depart-
ent. All that this report on supervision seeks to do is

present some of the fundamental principles which should

vern the formulation of any policy of supervision, to in-
cate the most important factors in the life of an offender

d the community in which he lives toward which the

pervising agency must direct its efforts, and to describe

e techniques most commonly employed in the supervision

persons under probationary custody. Since probation
pervision is still in the process of development, substan-

l disagreement exists among case workers as well as

iters on the subject as to the value and propriety of many

ecific techniques. For this reason, no conclusive evalua-
ns can be drawn as to many of the practices and policies
use in the several probation units.

No ideal program for the supervision of probationers is

oposed because the degree of individualization of treat-

nt required in effective probation work renders any such
oposals impractical. However, probation administrators
1d case workers have developed many useful processes

29 Cooley, supra note 1, at 62.
3° Ibid.

278

which can be employed in ahnost every case.131 It is upon
these that the present chapter seeks to place particular
emphasis.

The initial interview between oflieer and probationer.——
Supervision actually begins with the first interview be-
tween officer and probationer. Generally, the first inter-
view takes place immediately after the probationary re-
lease has been granted by the court. The probationer may
be taken from the courtroom directly to the probation
office or to some other conference room. There the officer is
supposed to explain the nature of release on probation to
the offender and to instruct him concerning his future con-
duct. In many probation units on the occasion of the first
interview the probationer is given a printed card, on one
side of which appear the conditions of release and on the
other spaces for noting personal reports and restitution
payments.

‘Vhile printed instructions of this general character have
been widely used, many probation officers doubt their utility
and there seems to be a growing sentiment against their
use. One probation officer of considerable experience points
out that, while the “report card” has definite value for the
juvenile probationer who is impressed by visible symbols,
the adult ofl'ender seldom attaches any intrinsic significance
to it. Moreover, use of the report card tends to increase the
temptation to the supervising authorities to carry on a
purely perfunctory type of supervision.

It seems only fair, however, to provide the ofl'ender wit-h
a. written or printed copy of the conditions imposed upon
him. This is required by law in many States. The question
of whether to use printed cards is relatively unimportant.
What is really necessary is that the officer carefully explain
each condition of release to the probationer and that he
make reasonably certain that the probationer clearly under-
stands what is required of him.

In many departments the probation officer does nothing
more at the first interview than instruct the probationer in
the conditions of release and set a time for the offender’s

m Probation and the Criminal Oflender (1931) 113, Report or the Probation
Department, Court of General Sessions, County of New York.

279

ersonal reports. The first interview, however, can and
lould serve a definitely constructive purpose. The char-
cter of the relationship between officer and offender is
metimes unalterably established at this time. If the pro-
ation oflicer does not, from the moment of his earliest con-
ct with the probationer, exert himself to win the latter’s
nfidence and respect, the task of supervision will be even-
ally rendered more complicated and difficult than it need
herwise be. Because the oflicer’s ability to appeal person-
y to the probationer and to win his confidence at the first
terview may have an important effect upon the offender’s
titude toward the officer and the treatment given, it per-
ps is doubtful whether the first interview should take
ace until the oflicer has “thoroughly digested the investi-
tion and diagnosis” 132 so that he has some conception of
e personality and background of the offender.
In departments where a tentative plan of treatment is out-
ed in the record of the presentence investigation, the
pervising officer, at the time of the first interview, is ex-
cted to uderstand the plan and the reasons for it. He can
en “frankly discuss the plan with the probationer and in
nsulation with him modify it, if necessary, to such extent
will make the probationer accept it as his own. More
ective work can be done by winning the probationer’s as-
t to, and hearty approval of, the plan than by forcing
on him. While the probation officer must be firm in
1ding to the essentials of the plan so far as the main ob-
tive is concerned, his attitude should be one of a wise
end who woos rather than that of a disciplinarian who
mands.” 133
Whether or not the policy of a department lends itself
discussion of the plan of treatment at the initial con-
ence between offender and officer, that period can, at the
st, be utilized by the officer to impress upon the proba—
ner the seriousness of his position, the high standard of
duct expected of him, and the readiness of the officer to
rnish him with guidance and assistance at all times.

*3 Ferris, loo. cit. supra note 115.
33 Ferris, supra note 115, at 155-156.
73115—39—von. II 19

 

280

The plan of supervision—No set formula exists to deter-
mine the line which the officer must‘ take in making a plan
of social treatment. This does not mean that supervision
must be entirely a “hit or miss” affair. Supervision, un-
doubtedly, involves some reliance upon the trial and error
method, since the reaction of each offender to social treat-
ment cannot be predicted. Treatment need not however
be blind and purposeless. A plan of treatment based upon
specific needs is essential from the very outset of probation.

Some probation departments postpone the formulation of
the plan of treatment until after the probationer has been
under supervision for Some time. The delay is based upon
the belief that during the first few weeks of supervision the
oflicer can expect to do little more than observe his charge
in order to gain personal insight into the character and
problems which the probationer presents. A few depart-
ments utilize the early weeks of probation for clinical ex-
amination of the probationer in order that the program of
supervision may not only be based upon the probationer’s
social needs, but also limited to his physical and mental ca-
pacities. Finally, since in many units a complete presen-
tence investigation is not made, formulation of the plan of
treatment is necessarily deferred until adequate informa-
tion concerning the offender is made available to the super-
vising officer. Prolonged delay in drafting a definite pro-
gram of supervision is inadvisable, however.

Although the supervision plan needs to be definite and
concrete from the beginning of the probationary oversight,
it is always susceptible of modification in the light of
“changing problems, new or remedied causal factors.” 13* As
probation progresses, altered circumstances in the probation-
er’s life and environment may make it expedient to modify
not only the supervision plan but also the terms of release
by the court. Modifications are sometimes made which add
conditions to the original probation status. In Los Angeles,

for example, probation officers sometimes secure imposition 3
of an additional term upon the offender limiting his free- ‘

dom in expending income when it appears that his extrava-
gance 1s endangering the well—being of his family or de-

134Cooley, loo. cit. supra note 1.

281

endents. The probationer’s interest and cooperation in the
lan are indispensable to the attainment of its objectives,
nd it is therefore unwise to insist upon rigid adherence to
plan of treatment to which he may have legitimate and
nsible objections. “Certainly rigid adherence is of less im-
ortance than the probationer’s hearty cooperation in his
wn readjustment.” 1“
The essential aspects of a plan of probation supervision
re perhaps best summarized in the 1931 annual report of
e probation department of the New York County court
f general sessions, one of the most efl'ective probation units
1 the country: 133

The plan of treatment, if it is to have any constructive
value, must be based upon insight into the personality and
environment of the offender. The problems he presents must
be set forth and there must be an evaluation of the problem
in terms of his social liabilities and assets. There must be
an analysis of the causal factors, a definite evaluation of the
probationer’s needs, and the practical and workable means
that are to be used to influence him toward a higher level of
responsibility and social consciousness. * * * The plan
must envisage the development of discipline and self control,
and, wherever necessary, emotional adjustment and physical
rehabilitation. It must apply itself also to academic and
vocational education and religious development, and must por-
tray the means which are to be used for the development of
new resources and outlets.

The plan of treatment must further envisage the broadening
of social relationships, family adjustment, and improvement in
the physical conditions under which the probationer lives,
and bring about the development of a measure of financial
security through the development of economic efliciency and
a thrifty disbursement of earnings.-

The scope of the supervisory process—In the course of
pervision the probation officer must deal with many as-
cts of the probationer’s life. “In endeavoring to mold a
rthwhile citizen from the material with which the school,
e home, and society in general has failed, probation is
deavoring to supply all that has been lacking in the past
e of the individual.” 137 The needs to be supplied will vary

35Ferris, supra note 115, at 157.
a6Probation and the Criminal Oifender, op. cit. supra note 131, at 113-114.
37 Cooley, op. cit. supra note 124, at 24—25.

282

greatly, both in character and degree, with individual cases.
Supervision must, therefore, be broad in scope but directed
specifically to those basic difficulties in the individual of-
fender’s situation which most require solution. It must
deal aflirmatively with the factors which have actively con-
tributed to the antisocial conduct of the offender.

Data on crime causation are as yet vague and not alto-
gether reliable, but “all careful case studies of delinquents
and criminals have emphasized the fact that there are no
unit causes of crime. * * * As Healy and Bronner
state, ‘* * * the varieties of human beings and the vari-
eties of causes of delinquency are too many to be met by a
unitary conception of what it is possible to do in the therapy
of delinquency and crime.’ ” 133 The experience of case-
workers in probation and the contributions of medical, psy-
chiatric, and social science indicate, however, that there are
certain focal points in the life and environment of the
greater number of probationers which can be utilized as
points of departure in the process of rehabilitation. Among
these are the physical and mental health, capacities, and
limitations of the probationer; his home and family; his
leisure time activities; his religious life; his education, voca-
tional training, economic status, and industrial habits, as
well as his capacity for discipline and self—control. All of
these can, by careful supervision and constructive efforts
on the part of the probation officer, be turned into positive
factors for rehabilitation.

a. Physical and mental strata—Among the initial consid-
erations in probation supervision are the physical and men-
tal health, capacities, and limitations of the probationer.
These considerations are basic since they relate to the in-
nate ability of the offender to respond to social treatment.
Medical, psychological, and psychiatric examinations for
the purpose of evaluating an offender’s capacities and of
diagnosing mental and physical disorders fall more prop-
erly within the scope of the presentence investigation than
within that of the supervisory process. Since adequate su-
pervision can be given only in the light of accurate knowl-

133 The Causes of Crime (1931) 17—18, Report No. 13 of the National Commis-
sion on Law Observance and Enforcement.

283

dge of the physical and mental characteristics of the pro-
ationer, these analyses should be obtained during the early
eeks of the period of supervision if they have not been
ade earlier. Otherwise, the plan of supervision may con-
mplate objectives which the offender is incapable of at-
ining. The result of demanding too high a standard of
erformance of an offender will result in disappointment
r the officer and discouragement and loss of interest in
e probationer.
Many authorities on the subject of probation believe that
very person on probation should be examined either in
clinic or by an independent psychiatrist.” 139 There is
tle prospect that this goal can be achieved in the imme-
ate future since few courts or probation units have
her facilities or funds to initiate such examinations as
routine procedure. Except in a small number of units
obation staffs do not include persons with professional
aining in either psychiatry or medicine. There have
en, in many units, efforts to secure such professional
vices on a fee or part-time basis. For the most part,
wever, psychiatric treatment of probationers is carried
, if at all, in the out-patient clinics of hospitals. There
certain disadvantages attendant upon this practice be-
se “the patient frequently feels a certain amount of hesi-
cy in frankly revealing his criminal record to a new
of individuals and * * * because most out-patient
ics are not particularly interested in treating inten-
ely adults whose chief difliculties lie in the charactero-
ical field.” 14°
ince “in every community there are individuals placed
probation who are greatly in need of psychiatric treat-
nt,” 141 it is highly desirable that the supervisory officers
rk out some arrangement whereby such treatment will
assured whenever the need for it arises. The establish-
nt by the States of strategically located psychiatric clin-
designed to serve the criminal courts, probation, and
role offices in a given region might provide an acceptable

Probation and the Criminal Oflender, op. cit. supra note 131, at 117.
°Guttmacher, Psychiatry and the Adult Delinquent (1932—33) Yearbook of
Nat. Prob. Ass’n 126, 136.
1Probation and the Criminal Oflender, loo. cit. supra note 139.

284

solution of the problem. However, until publicly mains
tained psychiatric service is available, the supervising offi-
cer who does not endeavor to enlist community facilities for
this purpose, especially where mental disorders are pro-
nounced and obvious, is neglectful of his obligations to the
offender and to society.

Probationary supervision demands that proper attention
be given to the physical as well as the mental well-being of
the probationer. As in the case of psychiatric services, how-
ever, most probation departments are compelled to depend
upon either out-patient clinics of hospitals or upon part-
time services for the medical treatment of offenders. Medi-
cal treatment is perhaps more often secured and insisted
upon in cases of venereal or highly infectious diseases, since
the dangers of neglect are obvious. In other cases, however,
there is a tendency to ignore the important influence which
an offender’s physical condition may exert upon his con-
duct and habits. Frequently apparent laziness and lack of
interest and initiative in the probationer have a physical
basis and can be corrected only by medical care. Moreover,
in many cases physical handicaps and disease may induce
in the offender a sense of inferiority in which “may lie the
germ of an offender’s gangster growth.” “*2

In far too many probation units neither medical nor psy-
chiatric treatment is regarded as an integral part of the
process of supervision. Failure to provide such treatment
is, no doubt, to some extent excusable, since neither the
facilities necessary for this purpose nor the funds to obtain
them are available. However, there is some reason to be-
lieve that many probation oflicers do not recognize the im-
portance of medical and psychiatric treatment in supervi—
sion and for this reason have failed to exert any effort
either to utilize existing connnunity facilities or to enlist
support for publicly maintained services.

6. Employment and vocational guidance.—Perhaps no
other factor is so closely associated with outcome on proba-
tion as employment. Statistical analyses presented in chap-
ter X of this volume disclose the fact that of all the factors

1" Ibid.

» 285

probation analyzed for the present study, regular em-
oyment bears the most significant relationship to a favor-
le 143 outcome on probation. Conversely, lack of employ-
ent is more significantly associated with an unfavorable
tcome on probation than any of the other factors
alyzed.
Employment for probationers presents at once the pro-
tion officer’s greatest single aid and one of his most difli—
lt problems. “The average probation officer is a little bet-
informed than anybody else of the truth of the saying
at idleness is the devil’s workshop.” 1‘“ He is also well
are of the salutary efi'ects of regular habits of work and
a regular income upon the probationer. At the same
e he faces a formidable problem in the necessity of
isting those under his care to find a productive place in
e economic scheme.
Many criminals “are the result of bad industrial habits.
ey either cannot or will not earn their own living. Men
probation are apt to develop this indifference to work
ess given proper guidance.” 14“ Stable, respectable em-
yment can do several important things for the proba-
ner: (1) Insofar as he is harmlessly and profitably oc-
ied during working hours, his employment keeps him off
streets and away from dangerous companionships and
etting influences: (2) the tangible returns which his em—
yment brings improve his economic status and enable
to satisfy his ordinary needs legitimately; (3) result—
improvement of economic status increases not only the
bationer’s self-respect but the esteem of his family,
ghbors, and associates.
or various reasons, most probationers are unemployed
en they are received into the custody of the probation
artment. Many of them have lost their places in indus-
directly because of their arrest, detention, and convic-
Others have never known anything but sporadic and

“Favorable” here has no connection with rehabilitation but simply means
a disproportionately smaller number of the probationers studied had

rded violations against them during supervision.

Burleigh, loo. cit. supra note 117.

Jones, Employment Problems of Probationers (1932—33) Yearbook of the
Prob. Ass’n 198, 199.

286‘

part-time employment and are frequently without both
training and ambition to secure it.“ The probation ofiicer
owes an active duty to all of them to exert his best efforts
toward guiding them into decent jobs and instilling in them
proper industrial habits.

The Wickersham Report in 1931 found one of the prin-
cipal shortcomings of probation to be the laxity of the
supervising agency “in making sure that the probationer
keeps employed.” 14“ Under prevailing conditions of unem-
ployment, failure to keep probationers regularly at work is
due, not entirely to laxity of the supervising agency, but in
large measure to the impossibility of the task. Even un-
der the best economic and industrial conditions, the task
of placing probationers in industry is a difficult one. Gen-
erally the offender is unskilled and unaccustomed to hard
work. In addition, his criminal record handicaps the effort
to find work for him.

Employment has its most favorable reaction upon the
probationer when he is engaged in work which is interest-
ing to him and which, therefore, engenders a degree of per- '
sonal satisfaction in its performance. It is the purpose of
a plan of vocational guidance so to place probationers.
When, however, all jobs are at a premium, little vocational
guidance can be attempted. “Any work must do and that
as soon as possible. The main purpose is to keep that man
or boy busy at some work which is not actually harmful to
him and a source of temptation.” 1‘”

then adequate vocational guidance can be given, eco-
nomic conditions permitting, it can play an important part
in the permanent rehabilitation of the probationer. “If
probation can be considered as enforced education for the
offender certainly the obligation rests upon the court to
guide him not only morally but practically by helping him
to find suitable work and by educating him by vocational
guidance wherever possible.” 148

The average probation ofl‘icer is seldom an expert in voca—
tional guidance. In a few probation departments a special-

140 Penal Institutions, Probation and Parole, op. cit. supra, note 5, at 195.
147 Jones, 100. cit. supra note 145.
“8 Jones, supra note 145, at 198.

287

st in this field is a member of the probation staff, but the
ajority of probation units do not and cannot maintain
uch special services. By and large, the burden of job place-
ent falls upon the supervising officer, and although he may
ack special training in vocational guidance, he can» render
.cceptable and effective service. Where community facili-
°es for vocational guidance exist, their services can gener-
lly be used. Where there are no such facilities at his dis-
osal, the officer who endeavors to offer vocational advice
11 be guided to some extent by his personal observation
nd judgment of the offender’s aptitudes and interests.
here may be certain repeating factors in an offender’s past
d present industrial conduct which are indicative of voca-
onal maladjustment. One writer lists these as follows:
oor work, accidents, lack of interest in work, frequent
ange of employment, work either too hard or too easy for
e individual, short-time employment in various places.” 149
Industrial placement of probationers is perhaps best han-
ed by the officer in cooperation with other social agencies.
fiicient probation departments “are almost constantly in
ntact with public charity and relief bureaus and private
aritable organizations. Where there is a State employ-
ent service it is frequently of great assistance. Many op-
rtunities for job placement have been created, so to speak,
direct contact between the employer and the probation
cer, but few probation officers have opportunities for
ch contact or can create them. Consulting an expert with
me knowledge of the local employment situation and a
de personal acquaintanceship with employers therefore
comes necessary. Employment agencies both public and
ivate, are about the only places to look for such a man.” 15°
There is some question as to the desirability of establish-
g regular employment bureaus within the probation de-
rtment. Some authorities feel that it is undesirable as a
neral rule to create such bureaus since private and public
encies are usually ready and willing to help.”1 In view,
wever, of the fundamental importance of employment in
49 Jones, loo. cit. supra note 145.

Jones, supra note 145, at 200.
Johnson, Probation for Juveniles and Adults (1928) 51.

288

the process of rehabilitation, no method of increasing the
Opportunities of probationers for employment can safely be
neglected.

a. Family and homa—Supervision cannot be adequate
unless there is close contact between the supervising agent
and the probationer’s family and home. In fact, in many
instances, the unit of treatment must be not only the in-
dividual probationer but the family itself.152 The proba-
tioner’s family usually “represents his place in the social
scale and the influences which are thrown about him in his
family life are as far'reaching as any other contacts which
he makes.” 153 Under the narrow conception of the function
of probation supervision current among many probation offi-
cers, scant effort is devoted to general family rehabilitation.
Where the problems and needs of the entire family are not
considered by the supervising officer, probation may fail to
realize its potentialities in two ways. The offender himself
cannot make the desired social readjustment under the con-
tinuing unfavorable conditions of an unhealthful home situ-
ation. In addition, the probation officer who does not regard
his probationary custody of an offender as an opportunity to
undertake rehabilitative work with the other members of
the delinquent’s family is rejecting an opportunity to do
effective and far-reaching preventive work. Since “the
criminality of one member of a family is frequently the
clue that calls attention to the general pathological situa-
tion in the home,” 154 probation supervision can be utilized
not only to reeducate the individual offender in the habits
and attitudes of normal social life but to do rehabilitative
work with those members of his family who, though not
yet delinquent, are exposed to the same influences which
contributed to the probationer’s antisocial habits and atti-
tudes. Where “family disorganization, congestion, eco-
nomic incompetency, poverty, lax behavior, or a broken
home” 155 complicate the probationer’s situation, effective su-

159 Cooley, op. cit. supra note 124, at 125.

1‘53 Probation and the Criminal Offender, op. cit. supra note 131, at 115—116.

154 Glueck, The Significance and Promise of Probation, in Probation and
Criminal Justice (1933) 17.

1155Probation and the Criminal Ofiender, op. cit. supra note 131, at 116.

289

ervision can seldom be carried on unless the oflicer actively
pplies himself to the betterment of home conditions.

The average probation officer, burdened with many cases,
annot often do all that needs to be done for the family of
is charge. The task of effecting family adjustments is a
elicate and a complicated one requiring special training
nd long experience in dealing with the problems involved.
lthough the supervising officer can make valuable con-
ributions to family rehabilitation by discovering the mal-
djustments and needs, by persuading the members to co-
perate in striving to attain the objectives of supervision,

e expert assistance of other agencies in the community is
dispensable. “The clinics, community centers, hospitals,

ild—caring agencies, recreational departments * * *
re equipped far better than any probation office to meet the

ecific needs of the probationer or his family along certain
nes.” 15“

The supervising agent’s chief functions in regard to re-
abilitation of the probationer’s family and home are those
f an analyst and friendly counsellor. One of his principal
uties during supervision is that of harmonizing the
mily relationships of his charge.157 In many instances,
e is able to do this merely by his friendship, guidance,

d advice. Frequently he is called upon to interpret the
robationer’s conduct to the family, to make them see the

obationer’s delinquency, not as an independent act of will-
ilness for which the probationer alone is responsible, but

ther as the result of shortcomings and faults in the family
uation. In other cases, mere persuasion and counsel are

t enough.

Where the family itself needs treatment it is the proba-
on ofiicer’s task to arouse in the individual members the
illingness and active desire to secure the aid they require

order to improve the conditions of their common en—
ronment. By means of regular interviews with the fam-

, family initiative may be fostered, parents and wives

ay be encouraged in planning for the improvement of the

15“ Ferris, supra note 115, at 159.
157Cooley, lac. cit. supra note 152.

290

family’s status and living conditions. With an increased
sense of family solidarity, with a regeneration of the moral
and spiritual life of the home, and with the creation or aug-
mentation of the wholesome influences which the home can
bring to bear upon the offender,158 his prospects of perma-
nent reinstatement in society are immeasurably increased.

d. Recreation and leisure-time aotz'oitz’es.—“The misuse
of leisure hours has always proved a dominating factor in
delinquency.” “‘9 Yet association with disorderly companions
and the attraction of commercialized places of amusement
often constitute the only means, which the delinquent is ca-
pable of recognizing, of satisfying his gregarious instincts
and his desire for new experiences. Often the need to
escape from the monotonous and depressing atmosphere
of an inadequate home is the force which urges the offender
to frequent the public dance hall, the poolroom, and the
corner hangout. “A primary function of supervision, and
yet one which is frequently neglected, should be a process of
reeducation which will assist in the creation of new rela-
tionships and the better utilization of the period not spent
in school by the delinquent child or in the workshop by the
adult offender. New ties and interests must replace the
old.” 16°

To wean the probationer away from his demoralizing
associates and dangerous pursuits is, more than anything
else, a process of substitution. It is, however, a difficult
process since the offender is, naturally enough, unwilling to
relinquish old associates or to abandon familiar haunts. To
the majority of probationers the amusements and leisure-
time activities recommended by the probation oflicer, no
doubt, lack at first the excitement and glamour to be found
in commercialized places of entertainment. But if the pro-
bationer’s social attitude is to be changed, his group rela-
tions must be changed and enlarged.161 “Because the offender

153 Cooley, op. cit. supra note 124, at 128.

159m. at 134.

10° Johnson, op. cit. supra note 151, at 56.

131 “The attitudes of the individual are largely a product of social contacts.
The contacts that are of greatest importance are frequent and intimate, as in
the play-groups, the family, the neighborhood.” Sutherland, Criminology
(1924) 576.

291

as been isolated from what is generally regarded as law-
biding society, that group has not had much influence
on him.” 1'62 If reformation is to be accomplished the
robationer must be induced to participate in the normal
creational pursuits and activities which more than any-
'ng else can reveal to him the attitudes and way of life
hich characterize the law-abiding members of society.
The probation oflicer who can persuade the offender com-
itted to his care to engage in respectable and profitable
'sure-time activities partially solves his own problem of
'scipline and fulfills in a constructive way his duty of
gilance against unlawful behavior. When the ofiicer
ows that the probationer is spending his free time in a
putable gymnasium, on the athletic field or in the library,
that he is taking part in the activities of a good club,
need not so greatly fear violation of the criminal law
the probationer during those hours. At the same time
e probationer, by enlarging his legitimate social contacts
(1 by acquiring new recreational outlets, is learning valu-
le lessons for the employment of leisure when oversight is
oved. He is forming new and safer companionships and
is fitting himself to pursue contentedly a normal course
conduct.
11 large cities the range of wholesome amusements avail-
le to probationers is generally sufficient to satisfy every
tel“ In these centers the probation officer has at his
posal many community recreation facilities to which he
direct the probationer’s energies and his quest for new
eriences. In smaller communities recreational facilities
often limited and the ofiicer is compelled to exercise
enuity and effort to discover or provide proper recrea-
nal outlets. Even in metropolitan centers, however,
per recreational outlets are not always adequate to the
ds of probation supervision. Moreover, there are, both
he cities and in the smaller communities, many probation
cers who do not recognize the importance of providing
ble pastimes for their probationers. Others realize
need but do not exert effort in this direction. Even

2Ibid.
Cooley, op. cit. supra note 124, at 135.

292

though community facilities are generally inadequate, there
is at present insufficient use of existing facilities by the
officers.

The type of leisure-time activity a probationer should
indulge in can be determined largely by his own tastes and
aptitudes. While the officer can guide the offender into a
proper recreational atmosphere it is unnecessary for him to
superimpose his will and ideas upon the probationer in this
matter. Generally, if the .probationer is at all capable of
responding to probation treatment, he eventually accepts
the officer’s suggestions. No useful purpose is served by
pushing the offender into social contacts for which he is
not yet prepared.

Cooley reminds us that recreational ideation and habits
are extremely difficult to change. In substance he says that
the delinquent’s concept of recreation in many instances is
limited and in some cases scarcely extends beyond the crude
interests of alcohol, sex, and gambling. Consequently, in
such cases, it is only after slow, painstaking effort that an
improvement in leisure-time pursuits can be effected. The
play instinct is, however, always present as a basis for con-
structive work, and there are few probationers who cannot
be induced to avail themselves of better forms of recreation
where they are accessible and attractive in nature.164

6. Education—While the whole process of probationary
supervision is one of education or, rather, reeducation in
normal social living, education in its narrower sense has a
real place in the supervision program: 165

It is well known that education materially affects the per-
sonality of an individual, broadens his outlook, and gives him
understanding. The education of those with whom the pro-
bation officer deals is at best fragmentary, and, in many in-
stances, the probationer has not even completed the grammar
school grades. To deal adequately with his needs, it is neces-
sary to point out and stimulate his interest in a world outside
his limited vision; and to establish him as a productive social
unit requires training and at times reeducation.

Educational activities for probationers do not necessarily
include formal academic studies. In many cases this type of

 

1‘“ Id. at 136.
105 Probation and the Criminal Olfender, op. cit. supra note 131, at 119.

293

ducation cannot be attempted. While there are probation-
rs who desire to complete interrupted or discontinued
hooling, many others cannot in any way profit from fur-
her formal study in the classroom. Many of the latter
ype of probationers are of limited intelligence. Some of
hem first expressed their delinquency in truancy from
chool. However, most of these probationers can benefit
rom a practical type of education designed to fit their
articular abilities and peculiar needs.

For the intelligent probationer a properly planned course
f reading may be useful in imparting an appreciation of
's obligation to his family, his neighbors, and to society

general. Probationers of this type can be directed to the
ublic libraries where the assistance of professional readers’
dvisers in planning their reading can generally be secured.
11 some probation units books are collected for circulation
mong probationers. Where this has been done the response
f probationers has been gratifying.

As a rule, one of the prime necessities of the probationer

for training in a vocation or trade. Attendance at a
ade school prepares the probationer to strive for a more
cure place in industry, and at the same time safely occu-
ies a portion of his time. In addition, increasing interest

learning new skills can do much to reawaken dormant

bitions and initiative. As new possibilities and activities
en up for him he will become more and more reluctant to
opardize his freedom and good standing.

In many social service centers and settlement houses in-
ruction is available to the probationer and his family in
e budgeting of income and expenditures, in housekeeping

d marketing, sewing, child care, citizenship, and hygiene.
any of the stresses and strains of domestic life may be
moved with resultant good to the offender when he and
8 family have a proper understanding of these simple
mely matters. The probation officer who does not guide
s probationers to such educational opportunities does not
mpletely fulfill his obligation of supervision.

The probation oflicer and the community—The probation

oer, acting alone, cannot deal adequately with the many

ases of a probationer’s life which require intensive treat-

294

ment during supervision. Apart from the many and vari-
ous demands upon his time the officer, though versatile, does
not possess the many skills which intensive and well rounded
supervision demand. The officer is rather called upon “to
be a social engineer who can tap all the forces—social, re-
ligious, economic, educational, recreational and otherwise—
which may contribute to the reclamation and upbuilding of
the offender.” 16"

The probation officer, standing between the offender and
wronged society, has important duties to the community.
It is because of the officer’s sponsorship that society permits
the offender to go at large. If the officer is to merit the trust
reposed in him by society, he must exercise extreme caution
to prevent further wrong to the community by renewed
criminal activity of the probationer. This is at once the
least and most fundamental of his duties. It is the least,
in that merely deterrent supervision offers only minimum
and short-lived protection to society. It is the most funda-
mental because society cannot be expected long to tolerate a
so-called penological system which does not offer reasonable
protection against criminal acts. “With numbers of of-
fenders at large on probation, the community has the right
to demand that those who continue in evil ways shall be
discovered and dealt with by some more drastic means.” 167

It must, of course, be anticipated that a few offenders, im-
properly placed on probation, will commit new offenses no
matter how careful the probationary oversight may be. The
supervising agency, however, cannot do less than attempt
the utmost vigilance against wrongful conduct on the part
of those committed to its care. The general laxity in keep-
ing informed as to the probationer’s whereabouts and activi-
ties, and the failure to return flagrant violators and obvious
misfits to penal custody which characterize the supervision
in many probation units must naturally arouse public dis-
trust of probationary releases. It is part of the probation
ofiicer’s task to win public support for the system which he
serves. His efforts in this direction will be facilitated when
he does well the phase of his work which is intended pri-

1°° Towne, loo. cit. supra note 122.
1‘" Towne, supra note 2, at 663.

295

marily for the protection of the law-abiding community—
close oversight and necessary discipline during the period of
supervision.

The probation officer needs to win friends for probation
in the community; he needs also to gain sympathy and com-
munity cooperation for the probationer. If he insures the
good behavior of his charge during the probation period
and if the supervision which he gives results in decided im-
provement in the former offender, community support often
spontaneously rallies to the probationer. However, during
the time of readjustment, the probationer inevitably en-
counters some resentment, antagonism, and suspicion in the
community. Partly by the force of his own personality and
influence, and partly by enlisting the interest of influential
persons and institutions in the community, the ofiicer can
contribute to the adjustment of these difliculties. Teachers,
leaders of civic organizations, the members of service clubs,
clergymen, and others who enjoy public confidence need to
be persuaded to aid the probationer in working out his social
readjustments.

More concrete help from the community than good will
and understanding are necessary to effective supervision,
however. Since the probation officer is unequipped to per-
form personally all of the many services which the proba-
tioner needs, the assistance of community agencies must be
enlisted for rehabilitation. Frequently these agencies can
perform the desired services more efficiently than the officer
himself could hope to do. “Wherever the probation ofiicer
finds that some specific reconstructive service can be ren-
dered more satisfactorily by another agency, it is his duty
to call that agency in on the case; otherwise there will be
wasteful duplication of effort. Further, the probationer is

ntitled to the best the community can do for him in assist-
ng him to permanent social readjustment.” ”3

Formerly registration of probation cases with social serv-
ice exchanges was thought to be unwise or inexpedient by

any probation oflicers.169 Today, however, probation ofli-

1“ Ferris, loo. cit. supra. note 156.
16" Chute, Probation Service Today—Progress or Retrogression (1930) Year-
ook of the Nat. Prob. Ass’n 89, 92.

731 15—39—v0L. II 20

 

296

cers realize the many benefits to be derived from such regis-
tration. It may disclose that the probationer or his family
are already known to social service organizations within
the community which are usually able to impart valuble in-
formation to the officer. In addition, these agencies are
frequently willing to undertake a large portion of the re-
habilitative work with the offender’s family. Few well-
equipped probation departments fail to register their cases
in this manner.170

Responsibility for securing the assistance of other social
agencies rests with the probation officer, because social
agencies ordinarily refrain from activity in a case in which
another agency has instituted treatment.171 However, the
majority of social agencies understand that “the probation
office as a social agency is unique in that it is a sort of diag-
nostic clinic, determining what a probationer’s problems are
rather than attempting to solve them entirely by its own
efl’orts.” ”2 Consequently, although initiative for securing
the cooperation of other community agencies must be taken
by the probation officer, his request for help is seldom re-
fused.

Methods of supervision—The double purpose of proba-
tion supervision has already been indicated. As an officer
of the court and of the law the probation officer has the duty
of “keeping informed concerning the conduct of each pro-
bationer.” “3 However, the probation officer “is more than

17° Ibid.

171 Ferris, loo. cit. supra note 156.

17’ Ibid.

173 N. C. Laws 1937, ch. 132, § 9. Similar provisions are to be found in
almost all probation statutes. See, 6. g., Arlz. Rev. Code Ann. (Courtright,
Supp. 1936) § 5108; Ark. Laws 1937, Act 178, § 7; Cal. Pen. Code (Deering,
1937) §§ 1203.6, 1203.10, 1203.12; Colo. Stat. Ann. (Michie, 1935) ch. 140,
§ 5; Conn. Gen. Stat. (1930) § 6516; Del. Rev. Code (1935) § 4317; D. C.
Code (1929) title 6, § 426; Ga. Code (1933) § 27—2703; Ill. Stat. Ann. (Jones,
1936) § 37-781; 1nd. Stat. Ann. (Burns, 1933) §§ 9—2213, 9—2906; Iowa Code
(1935) § 3804; Ky. Stat. (Carroll, 1936) § 97911—8; Mich. Comp. Laws (Mason,
Supp. 1935) § 17384; Minn. Stat. (Mason, 1927) § 242; Neb. Comp. Stat.
(1929) § 29—2211; N. Y. Code Cr. Proc. § 936, as amended N. Y. Laws 1933,
ch. 727, N. Y. Inferior Cr. Cts. Act § 151, as amended N. Y. Laws 1933, ch.
746; Ohio Code Ann. (Throckmorton, 1936) § 1554-1; Ore. Code Ann. (Supp.
1935) § 13—1149; Pa. Stat. (Purdon, 1936) title 71, § 601; Va. Code (Michie,
1936) § 1922d; W. Va. Code Ann. (Michie, Supp. 1933) § 6134; 18 U. S. C.
§ 727 (1934).

297

an officer of the law, he is a social worker and should be a
helpful friend to each of his charges.” 1“ Statutes, as a rule
recognize the second duty as well as the first and direct
officers in charge of probationers “to aid them with encour-
agement and advice.” ”5

The various techniques employed to carry into effect the
purposes of the supervisory process are all based upon one
of two principal methods of supervision: The probationer’s
report and the officer’s visit. The probationer’s report may
either be written or made in person to the oflicer. Officer’s
visits are of two general types: (a) The home visit, (b) the
community visit. Wherever probation is in use, at least one
of these methods is being followed in the supervision of
probationers. How far can any of these methods be de-
pended upon to fulfill the purposes of probation super-
vision?

a. Reports by probationers.—Written reports constitute
the least satisfactory method of supervising probationers,
either for investigation and discipline or for rehabilitation.
Generally, the written report is either sent to the officer by
mail or brought to him by the probationer when he makes
his personal report. As a rule it calls for statements by the
probationer concerning employment, wages, general con-
duct, religious life, associates, recreation, home life, and
savings. Frequently probation officers require the written

sports to be endorsed by employers, parents, wives, clergy-
nen, or other interested persons.176

Since the written report contains only information fur-

ished by the probationer himself, little reliance can be
laced upon it even as a method of ascertaining the offend-
r’s whereabouts. It is used in the more highly developed
robation units only in exceptional circumstances. In the
ederal probation service monthly written reports are re-
uired of probationers but do not constitute the only means

174 Methods of Supervising Persons on Probation, Report to the State Proba-
ion CommissiOn (N. Y. 1922) 6.

175 N. Y. Code Cr. Proc. § 936, as amended N. Y. Laws 1933, ch. 727. For
tatutory provisions of similar import in Arkansas, California, Colorado,
eorgia, Indiana, Nebraska, North Carolina, Virginia, West Virginia, and
ederal, see supra note 173.

17° Methods of Supervising Persons on Probation, supra note 174, at 25.

298

of keeping in touch with offenders. Except in the smaller
urban and rural units, written reports are seldom substi-
tuted for personal reporting and home visits and are not
regarded as an acceptable means of supervision unless the
probationer is ill or for some other valid reason unable to
report in person. Even then a home visit is considered
preferable. Frequently where a probationer has been per-
mitted to reside outside the jurisdiction he is allowed to
make regular reports by mail, but here again the written
report is not sufficiently reliable and should be supple-
mented by the more personal supervision of a probation
officer in the place of residence. 7

It cannot be said that the written report is altogether
worthless in supervision. Where it places upon a proba-
tioner the onus of writing an account of his activities at
regular intervals, he himself may gain some advantage from
the self-evaluation involved. Except for this purpose, use
of the written report should be avoided wherever possible.
Certainly it should never be employed as the only means
of controlling and supervising probationers.

“Most probationers are required by order of the court to
report at regular intervals to the probation officer in his
office or some other place selected by him.” 1" Although
much criticism has been leveled at this practice, it has been
and remains the most commonly used method of probation
supervision.

The personal report was devised originally as a means
of securing regular contact between officer and probationer.
It was expected that by insuring private interviews during
the probation period personal relations would be established
and a measure of discipline enforced. In evaluating the
effectiveness of the personal reportfor these purposes sev-
eral factors must be considered: The frequency with which
reports are made, the time and place set aside for receiving
them and above all the ability of the oflicer to make of these
reports something more than mere stereotyped office visits.

Generally, probationers are required by law to report in
person to the probation oflicer. In some States the fre-
quency with which such reports must be made is also fixed

1’" Sutherland, Criminology (1924) 573.

299

by law. Usually the probationer is merely required to re-
port to the probation oflicer as directed. Where the statute
does not specify how often the probationer must report, the
supervising officer may generally determine this matter with
reference to the needs of the individual case. Latitude to
fix the frequency of personal reports according to the neces-
sities of each case is highly desirable.
Most departments demanda personal report by the pro-
bationer once each month. During the experiment in sci-
entific probation work conducted by the Catholic Charities
Probation Bureau in the New York City court of general
sessions, probationers were required to report weekly “ex-
cept during periods of unemployment, when daily visits
at the office were demanded.” 17“ Many units require weekly
reports to be made in all cases during the early months of
probation. This requirement may be reduced as the period
progresses if the probationer’s conduct shows improvement.
In many units biweekly or daily oflice visits are the rule
for probationers whose situation seems to demand intensive
effort and close personal contact on the part of the oflicer.
It is obvious that the personal report will accomplish very
little if it amounts to no more than a weekly or monthly
appearance by the probationer at the reporting place so
that his compliance with the reporting condition may be
noted. “If the reporting period means a friendly weekly
or biweekly conference, it gives an opportunity for consid-
ering problems which arise and progress which is being
ade in attaining the objectives of supervision.” “9
A conference of this type is impossible unless the oflicer
an devote sufficient time to each interview. The time of
eporting for each of the group of offenders supervised by

particular oflicer can be so arranged that haste is unnec-
ssary in dealing with the individual.180 Many officers find
t expedient to devote more than 1 day a week to receiving
eports. In this way reporting can be “spread out” and, if

definite hour is set for each report and promptness in-
sisted upon, ample time for a worthwhile interview may

1" Cooley, supra note 1, at 63.
17" Johnson, op cit. supra note 151, at 49.
18° Cooley, loo. cit. supra note 178.

300

be assured. “The time of conference with probationers
should be planned at an hour that will not interfere with
* * * school attendance * * * or * * * em-
ployment * * *. Evenings and Saturdays must be
fully utilized.” “31

Generally reports are received at the probation office
which is usually located in the courthouse or some other
public building. Johnson believes that “the place of re-
port should not be limited to a central office.” The better
practice is to select reporting places on a district basis and
this is being done more and more in the larger and more
highly developed probation departments. “Schools, settle-
ments, social centers, and offices of social agencies may be
utilized.” 182

One of the principal objections to the use of the personal
report in probation supervision is that “this system results
in the assembling of probationers in the places in which
they report and this is regarded as conducive to continued
delinquency.” 183 Some advocates of the reporting system
believe that the undesirable mingling of probationers “can
be reduced to a minimum by having district rather than
central offices, fixing a definite time at which each proba-
tioner should report, having several waiting rooms, or re-
quiring that those in the waiting room sit at least 3 or 4
feet from each other and maintain silence.” 18* Apart from
the fact that many probation offices are financially unable
to maintain separate waiting rooms, stringent rules as to
seating arrangements are somewhat objectionable as intro-

181 Johnson, lac. cit. supra note 179. See, e. g., Halpern, A Decade of Proba-
tion (an unpublished manuscript) 48:

“Probationers at the inception of the probation period, are required to report
weekly. The rules of the Department require that probation officers shall visit
the homes of probationers twice monthly, and shall verify their employment
once each month.

“Extreme care is taken to avoid intermingling of probationers, and privacy
when reporting is obtained through the use of the private oflices in the Proba-
tion Department.

“Reports are made by probationers between the hours of 5 p. m. and 8 p. m.
in order that conflict with their employment may be avoided and every proba-
tion oflicer assigned to this Bureau is on duty until 8 p. m. 2 nights each week.
The offices of the Department are open until 8 p. m. every working day of the
week, except Saturday when they are closed at 12 noon.”

18’ Ibid.

183 Sutherland, Criminology (1924) 575.

13‘ Ibid.

301

ducing overly rigid discipline into a relationship where mu-
tual confidence and understanding are essential. . More-
over, the imposition of artificial restraints upon probation-
ers at the probation office in no way prepares the proba-
tioner for inevitable contact with other offenders in the
community. One of the purposes of supervision is to teach
the probationer to exercise will power and self-restraint
against the importunities of undesirable companions. No
ystem of enforced silence and arbitrary seating can isolate
'm from others on probation.
Opinions regarding the value of personal reports differ.
One argument in favor of the personal report is that it
fl'ers an “opportunity for privacy which cannot be secured
the home.” 185 This is true, however, only Where oflice
acilities are adequate and probationers may see their oflicer
ithout the presence of others. “Interviews should be in
urroundings that invite confidence. All too often the of-
ender is supposed to reveal his * * * inmost thoughts
ithin both sight and earshot of others.” 186 In reporting
laces where complete privacy for each interview is unob-
ainable, the officer will be unable to secure much of the
nformation essential to a solution of the offender’s prob-
ems.
To some the reporting condition seems a purely discip-
'nary measure inconsistent with the logic of probation. To
utherland, the argument that the personal report has dis-
iplinary value is “not impressive” since “it represents a
onviction that reformation is produced by suffering, incon-
enience, and compulsory performance. If offenders can be
eformed in that way, they should be sent to prison where
ey can be compelled to obey rules, be punctual, and suffer
convenience.” Moreover, he believes that such methods of
'scipline are relatively useless and that “they irritate, and
lienate the probationer, thus reducing the efficiency of other
ethods.” 1‘” On the other hand, Ferris sees in the discip-
ary aspect of the formal report a really constructive
orce, “useful not only as a tacit reminder to the proba-

135 Sutherland, Criminology (1924) 574.
18° Report of the Crime Commission (N. Y. 1927) 266.
15" Sutherland, Criminology (1924) 574, 575.

302

tioner that he is definitely under supervision, but especially
in helping him to form a habit of accounting for his activi-
ties to some one wiser than himself.” “’8 This habit of ac-
counting for himself may grow into the more valuable one
of looking upon the probation oflicer as a source of guidance
and advice.

The greatest importance of the formal report consists in
assisting the probation officer to maintain continuity of
contact with the probationer. Although the statements of
the probationer cannot always be trusted and must be
checked by outside investigation, the reports certainly fur-
nish information upon which investigation may be based.
Where case loads are particularly heavy, the formal report
enables the officer to see a much larger number of proba-
tioners in a given period than does any other method.189
However, the formal report is utterly worthless for rehabil-
itation if the ofiicer himself regards it merely as a routine
check-up on the whereabouts of his charge or as an oppor-
tunity for repression and exhortation. If the questions and
discussion revolve about matters of employment, home life,
recreation and leisure time, income and budget, and church
attendance,190 the officer may be able to offer guidance to the
probationer in adjusting himself to the exigencies of his
daily life.

6. Visits by the probation ozfioer.—“Important as report-
ing may be, the visit to the home of the probationer is of
even greater significance.” “1 For careful and intensive
supervision frequent visits to the home are indispensable.
“Many failures of probation can be traced to neglect of
home visits.” 192

However, in probation units where the home visit is
valued chiefly as a means of securing information about the
probationer or of verifying his personal reports, the basic
function of this method of supervision is ignored. The
knowledge the probation officer seeks in the home is not
for purposes of surveillance and discipline alone. It

15‘ Ferris, op. cit. supra note 115, at 157.

18° Sutherland, Criminology (1924) 574.

19° Johnson, 100. cit. supra note 179.

1°1Ibid.

1” Report of the Crime Commission (N. Y. 1927) 267.

303

's for understanding on the basis of which he may plan and
ct intelligently. Only a close contact with the home itself
an reveal to the officer favorable family relationships and
ome conditions which may be enlisted in the rehabilitation
f the offender. Only by such conduct can he single out
he unfavorable influences which he must counteract or
hangs.193

The home visit occupies its important place in the super-
'sion program because it offers the surest approach to the
iscovery and solution of basic problems in the offender’s
ersonality and environment. Criminality is often not a
anifestation of individual waywardness, but the result of
home situation delinquent in itself. To say that the home

s the most important part of the probationer’s environ-
ent may have become commonplace but the daily impact
f his home situation upon the probationer can never be
verestimated. Its influence can seldom be counteracted
y miscellaneous advice and exhortation delivered weekly

the probation office.
If it is true that “every efficient probation officer recog-

'zes the necessity of visiting probationers in their homes,” 19‘

e reverse is almost universally true of probation statutes.
f the 39 jurisdictions where a probation law is in force
ly 4-—New York, North Carolina, Ohio, and Virginia—
ecifically require officers to make such visits.195 In only
0 of these, New York and Ohio, do the statutes attempt,

specific direction, to insure the making of the visits at
.gular intervals.196 It is not suggested that statutory pro-
'sions fixing the regularity of home visits are altogether
esirable. If probation personnel is at present not adequate
carry out a policy of regular home visits, enactment of
andatory statutory provisions does not offer an accept-
le solution of the problem. Moreover, the frequency with
hich visits may become necessary is variable and cannot

fixed by statute. Then, too, statutory requirements of

93 Ferris, supra note 115, at 158.

1“ Methods of Supervising Persons on Probation, supra note 174, at 7.
195 N. Y. Code Cr. Proc. § 936, as amended N. Y. Laws 1933, ch, 727; N. C.
we 1937, ch. 132, § 9. Ohio Code Ann. (Throckmorton, 1936) § 13452—3;
. Code (Michie, 1936) § 1922d.

19" In New York, home visits are to be made once each month; In Ohio, twice
h month. Supra note 194.

304.

such visits at stated intervals may be regarded merely as
one of the minimum standards of a State’s probation serv-
ice. Although they may be useful insofar as they compel
adherence at least to that minimum, where the satisfaction
of statutory minimum standards becomes the highest level
of the service, supervision practice may suffer.

Under the experiment of the Catholic Charities Proba-
tion Bureau in New York, home visits were made twice each
month.”7 Haynes feels that even a weekly visit can do lit-
tle in outweighing “the evil influences which are exerting
their forces on the individual day in and day out.” He ad-
mits, however, that “the average of a visit a week is prob-
ably better than is actually maintained in most places.” “’8
It is so much better, in fact, that for the majority of earnest,
progressive probation departments the weekly visit repre-
sents an unattainable ideal.

In 1927 response to inquiries made by the crime commis-
sion, probation officers in New York stated that home visits
were made “seldom,” “twice a year,” “as many as possible,”
“when near his home,” and “never.” The commission de-
clared that answers to their inquiries on this matter
abounded in evasions and “even where a straight-out state-
ment of ‘once a month’ comes, one doubts its entire truth-
fulness.” 199 The status of the home visit for the country as
a whole in 1937 was not much different from that disclosed
in New York 10 years earlier.

The active field supervision required for adequate proba-
tion service is not confined to the home visit. While the
probationer’s home life must always be the object of careful
study and constructive effort, other aspects of his life call
for investigation by the officer. It is to the probationer’s
immediate neighborhood as well as to his home that the ofli-
cer must turn for information concerning the probationer’s
habits and conduct during the period of supervision, and
often the neighborhood is a better source of information on
this matter than the home. It is one of the officer’s major
duties “to inquire in the neighborhood and from various

197 Cooley, loo. cit. supra note 189.
198 Haynes, Criminology (1930) 359.
199 Report of the Crime Commission, (N. Y. 1927) 267.

305

ther sources as to how the persons under his care are pro-
essing.” 20° _
One consideration in regard to the community visit must
ot be overlooked. Discretion is always necessary in con-
ucting visits outside the home in order that the proba-
oner’s unfortunate situation may not be aggravated.
eighbors may be inquisitive and inclined to gossip.
Special care must be exercised in dealing with employers
the offender’s standing is not to be jeOpardized. Many
cers avoid visiting probationers’ employers except in cases
emergency unless they are certain that the employee’s
atus as a probationer is already known. On the other
nd, the advisability of keeping employers in ignorance
the probationer’s conviction is questionable, for it is rea-
nable to suppose that this knowledge can be imparted more
ctfully, and with less danger of dismissal, by the proba-
n officer than by others. Frequently employers, once
vised of the situation, gladly cooperate with the ofli-
r, keeping him advised of the probationer’s habits of work
d conduct. Even here, however, the officer has to exercise
re in planning his visits so that they do not interfere
duly with the conduct of the business.
Correspondence and use of the telephone have a legiti-
ate place in probation supervision when they are used to
pplement home and community visits. They are undoubt-
ly valuable when information is needed quickly or when
rification of the offender’s statements must be made with-
t loss of time. However, substitution of these methods
r home and community visits is not to be encouraged.
Records and reporta—Probation statutes, almost univer-
ly, require that the probation officer keep records and re-
rt to the court concerning the conduct and condition of the
enders committed to his care. While the form and con-
t of the report to the court must necessarily be governed
the preference of the particular court served, the charac-
of the supervision record is usually dictated by the ad-
nistrative policies of the probation unit itself. Properly,
supervision record forms a part of the case history of the
obationer and follows the record of the presentence in-

Towne, Probation and Suspended Sentence (1916) 7 J. Crim. L. 654, 663.

306

vestigation and diagnosis. Since, however, supervision ex-
tends over a longer period of time, the record of supervision
necessarily exceeds the other portions of the case history in
bulk. The supervision record supplies not only a permanent
account of the activities of the probation officer but is useful
as a means of judging the probationer’s progress and re-
sponse to treatment. In addition, it is invaluable as a tangi-
ble yardstick of the quality and effectiveness of the treatment
given. Its form and content, therefore, must be a matter
of some concern to the efficient probation staff.

Because of the disorderliness and inadequacy of case re-
cording, it is impossible in many instances to ascertain either
the quality or the amount of the supervision given by a pro-
bation unit. The paramount necessity for uniform, accurate
and reliable case records cannot be overstressed. Probation
work in many units suffers because the supervising officers
lack the necessary clerical assistance to keep orderly, reli-
able records of the work they are doing. Many officers do
not recognize the important purposes which an accurate his-
tory of the supervisory process can serve.

Unless the record of supervision is designed to show “both
the successive stages of the application of the plan of treat-
ment and the gradual unfolding and development of the per-
sonality of the probationer in response to the various social
controls applied” 201 its usefulness will be seriously impaired.
To be adequate, it must record “from day to day, each con‘
tact in or out of the office with the probationer and others
on his case, each call made, each decision entered into by the
probation offiecr or by the probationer, each action taken,
and each change or supplement to the plan of treatment.
Nor is it sufficient to note the mere fact of each item re-
corded, each entry should be comprehensive enough to give
accurately the substance of each contact, call, action, or
change and in sufficient detail to make it possible for another
probation officer to go on with the case without loss of time
or understanding.” 202

In eflicient, well-organized probation departments where
the process of supervision is carried out carefully and inten-

201 Ferris, supra note 115, at 153.
20“Id. at 154.

307

sively, the supervision record is in constant use by the super-
vising ofiicer himself, and by his colleagues and supervisors,
not only to estimate the effectiveness of the work done but to
plan for the further treatment of the probationer. In these
departments the need for accurate, complete and accessible
records is clearly recognized, and the entire case history is
generally kept according to a uniform, prescribed method
which enhances its usefulness.

FACTORS INFLUENCING ADEQUACY OF SUPERVISION

Case Zoads.—Both the scope of the supervisory process and
he character of the oversight given are influenced directly
y the number of probationers placed in the custody of the
ndividual supervising agent. “The larger the number of
robationers assigned to a single officer the more he must
epend upon purely mechanical means” 2°3 for supervision.
nformation collected for the Survey during the first quarter
f 1937 reveals that in unit after unit where a single officer

as solely responsible for all the probation work of the
ourt which he served, the periodic personal report by the
robationer furnished the only contact between officer and
robationer during supervision. Moreover, in many of these
nits, even the personal report, inadequate though it would
ave been at best, was frequently obtained in such a manner
s to render it almost entirely meaningless and unsatisfac-

ry even as a method of ascertaining the offender’s where-
bouts.

It is generally recognized that success in probation super-
ision “depends on personal service and acquaintance
rought about by the frequent contact of the probationer

d the probation officer.” 2"“ The officer must be able to
udy the probationer, to plan effective treatment for his
habilitation, and to render practical service to that end,205

t he can do none of these things when the number of pro-

tioners whom he is expected to supervise is excessive.

o matter how well equipped any probation officer is, his

se load must be limited to his capacities or it will be phys-

mHaynes, Criminology (1930) 357.
“Chute, Probation and Suspended Sentence (1922) 12 J. Crim. L. 558, 562.
”5 Cooley, supra note 1, at 61.

308

ically impossible for him to render a service which has any
constructive value.” 2°“ Undoubtedly, much of the lax and
inadequate supervision which is being carried out in many
probation units at the present time is attributable to the
fact that these units are hopelessly understaffed.

This report makes no attempt to present case-load figures
for the units studied. Although serious overloading of
probation officers is only too common and although such
overloading inevitably has a deleterious effect upon the
quality of supervision, case-load figures cannot legitimately
be utilized to evaluate the adequacy of supervision in a
particular department. While it is obvious that an officer
with 500 probationers in his custody can give only a super-
ficial and perfunctory type of supervision, it does not neces-
sarily follow that the officer whose case load is 25 or less
deals with his probationers in an effective or satisfactory
manner. Overwhelmingly heavy case loads are bound to
impair the quality of supervision, but the existence of a
small case load in any unit is no evidence of efficient
probation service.

Bare case-load figures cannot present a true picture of
the quantity and quality of the work performed by a pro-
bation unit. Except where all the probation service for the
unit is carried out by a single officer, case-load figures are
at best a mere average, obtained by dividing the number of
persons on probation by the number of probation officers,
either as of a given date or for a certain period. The quan-
tity and quality of the work done can be evaluated with
reasonable accuracy only when we have concrete informa-
tion concerning the character and duties, the administra—
tive set-up and policies, the geographical location, and the
social and financial resources, as well as the selection poli-
cies and practices of the individual unit.

Oflicers may be poorly trained or altogether incompetent,
and thus unable to handle effectively as many offenders as
the properly qualified probation officer. The officers may
be required to investigate and supervise not only adult pro-

mHalpern, Practical Problems in Administering Probation (1931) Yearbook
of the Nat. Prob. Als’n 105, 108.

309

bationers but parolees and juvenile delinquents as well.
They may be merely ea; oflz‘cz'o or part-time oflicers devoting
a major portion of their efforts to nonprobationary duties.
In addition they may render service to unofficial as well as
oflicial cases. Some of the officers may be serving in a
purely administrative capacity with little or no actual cpn—
tact with probationers. On the other hand, a unit may
have an inefficient administrator with the result that duties
of this character devolve upon the various oflicers. Where
the probation staff has no clerical assistance, officers may be
compelled to spend time in clerical work that might other-
wise be devoted to supervision. Oflicers may be required to
divide their time between the functions of investigation and
supervision.
Probationers may be widely scattered geographically so
that much of the officer’s time and energy is spent in travel-
ing. Inadequate transportation facilities within the area
0 be covered may render this phase of the officer’s work
nduly time consuming. Community resources and coop-
ration for the social treatment of offenders may be lim-
ted or impossible to secure. The failure of local courts
0 exercise sound judgment in granting probation may re-
ult in the selection of a large number of poor probation
isks who will complicate the oflicers’ problems during su-
ervision. Finally, case loads are subject to considerable
ariation during even relatively short periods of weeks or
onths.
Case-load figures of themselves cannot show the exist-
nce, interrelation, and effect of the various factors enu-
erated. Even though they are not intended to serve as a
easure of the effectiveness of a probation department,
ase-load figures have been improperly used for this pur-
ose by laymen. Case-load data do, however, show in a
ough way the degree to which a unit is in a position to do
ffective work, but since data of this type are subject to
isinterpretation, they are omitted from the present study.
In current probation literature the opinion is frequently
xpressed that intensive rehabilitative work with offenders
nd their families cannot be done when the number of pro-

310

bationers under the supervision of any oflicer exceeds 50.207
This figure has been arrived at “on the basis of family wel-
fare case work experience.” 203 It has perhaps gained addi-
tional authority because of its successful use in the Catholic
Charities Probation Bureau in the New York County Court
of General Sessions.209 The maximum case load of 50 pro-
bationers per officer was also recommended as desirable by
the National Commission on Law Observance and En-
forcement.210 In proposing standards for effective proba-
tion work, Mr. Edwin J. Cooley, who directed the New
York probation experiment, said: 211 _

The probation system should be standardized by the em-
ployment of as many officers as are required by the number of
cases. Effective probation work demands that no probation
officer should supervise more than 50 probationers at one
time. Officers handling the cases of women should be assigned
to a smaller number.

Although there is pressing need for a drastic reduction of
probation case loads in almost all units, standardization of
case loads at 50 per officer may not meet the needs of indi-
vidual units. First, it must be remembered that under the
Catholic Charities Probation Bureau, supervision officers
were not required to carry out any duties of presentence in-
vestigation. The officer who combines both functions “can-
not exercise supervision over as large a number as would
'be possible were he freed from making time-consuming in-
quiry.” 212

Moreover, the same considerations which affect the valid-
ity of case-load figures as criteria of the effectiveness of the
probation service in a single unit may be advanced as objec-
tions to any movement to adopt a standard limitation upon
case loads. Each unit must decide in the light of its own
peculiar problems just how many officers it will need to

W See, 6. 9., Chute, Probation. and Suspended Sentence (1922) 12 J. Crim L.
558, 562; Glueck, The Significance and Promise of Probation, in Probation and
Criminal Justice (1933) 17; Haynes, Criminology (1930) 357; Penal Institu-
tions, Probation and Parole, loo. cit. supra note 116.

‘03 Glueck, loc. cit. supra note 207.

“9 Cooley, loo. cit. supra note 205.

20° Cooley, loo. cit. supra note 205.

31° Penal Institutions, Probation and Parole, loo. cit. supra note 116.

an3Johnson, op. cit. supra note 151, at 46.

311

mploy in order to carry out a satisfactory program of
upervision.

In spite of the fact that a case load of 50 cannot be
ecommended for universal adoption, it does represent a
esirable goal. The number of offenders normally under
pervision in almost every probation unit in the country
eatly exceeds this figure. There is hardly any unit which
oes not urgently need the services of additional oflicers

implement its supervisory work. Until personnel is
preciably augmented beyond the subminimum level pre-
iling at present, probation work must remain halting and
erfunctory. “It is, of course, empty optimism to expect

y tangible and enduring results from supervision when
e probation officer depends principally upon the reporting
stem, or is compelled to attend to too many cases.” 213
Length of the probation period—Since the ultimate pur-
se of probation treatment is the permanent social read-
stment of the offender, the period during which this treat-
ent may be given must be long enough to accomplish the
rpose for which it was designed. Unfortunately, “the
riod spent on probation is frequently too short,” 21“ to per-
t a purposeful and adequate process of treatment to be
dertaken. “With the termination of probation at the

iration of a few months, there is no hope of accomplish-

any definite and lasting results in the development of

meter in the probationer.” 215

be widely varying statutory provisions respecting the
ration of the probation period cannot be explained on any
ional basis. It would seem that the length of the proba-
n period should be a matter for the discretion of the

rt and the probation officer since the progress of the

bationer and many other factors may suggest the desir-
lity of continuing supervision until there is assurance

t it is no longer necessary. Any arbitrary period fixed

statute is manifestly not adaptable to the exigencies
ich may arise in a particular case.

Cooley, loo. cit. supra note 124.
Penal Institutions, Probation and Parole, op. cit. supra note 5, at 195.
Cooley, loo. cit. supra note 124.

73115—39—vor... u—-——21

312

At least 13 jurisdictions 21" have not limited the duration
of the probation period but leave the matter largely to the
discretion of the court. But even some of these States have
imposed limitations. In Maine the probation period may be
indefinite only if probation is granted before sentence is
pronounced; otherwise the period is limited to 1 year.217
Courts in the city of Baltimore cannot order probation for
more than 5 years or the maximum term for which the
offender could have been imprisoned, whichever is the
shorter.”18 In Rhode Island a “deferred sentence” expires
automatically at the end of 5 years.219

Eleven States 22° seem to regard probation as’analogous to
incarceration, since the probation period is limited to the
maximum term for which the defendant could have been
imprisoned.221 Slight variations exist in this group also. In
California the period may be 2 years in any case,222 and in
Indiana the period cannot exceed 5 years.223 Minnesota courts
may order probation for 1 year in any case 22“ while in North
Dakota in nonpenitentiary cases the period may be ex-
tended 18 months beyond the maximum period of possible
imprisonment.225 In Tennessee a misdemeanant cannot be
kept on probation longer than 12 months.226 Pennsylvania227
and Wisconsin 228 have provided that if payment of a fine is a
condition, final payment results in a termination of proba-
tion.

Six States 229 and the Federal Government provide that
probation may not be continued longer than 5 years. Kan-

21“ Arkansas, Delaware, District of Columbia, Iowa, Kentucky, Maine, Mary-
land. Massachusetts, Rhode Island, Utah, Vermont, Virginia, and Washington.

31" Me. Rev. Stat. (1930) ch. 147, §§ 12, 14.

’13 Md. Laws 1931, ch. 132.

m R. I. Acts and Resolves 1927, ch. 1063.

“Arizona, California, Georgia, Idaho, Indiana, Minnesota, Montana, North
Dakota, Pennsylvania, Tennessee, and Wisconsin.

mBut even in some of these jurisdictions revocation may be had after the
probation period has expired.

mCal. Pen. Code (Deering. 1937) ,5, 1203.1.

223Ind. Stat. Ann. (Burns, 1933) § 9—2211.

224 Minn. Stat. (Mason, Supp. 1936) § 9937.

1”SN. D. Laws 1931, ch. 131.

mTenn. Code Ann. (Williams, 1934) § 11802.2.

2“"Pa. Stat. (Purdon, 1936) title 19, § 1052.

238Wis. Stat. (1935) § 57.04 (1) (applies to misdemeanor cases only).

mColorado, New Jersey, North Carolina, Ohio, Oregon, and West Virginia.

313

as 23“ and Missouri 231 limit the probation period to 2 years
misdemeanor cases and 10 years in felony cases. Michi-
an 232 and Nebraska 233 have like restrictions in the case of
isdemeanants, but limit the period for felons to 5 years.
nnecticut 23* and Maine 235 consider 1 year a sufficient pro-
ation period, but this limitation is applicable in Maine only
probation is granted after sentence has been pronounced.
linois prescribes a 6-month maximum for violation of
unicipal ordinances and 1 year in other cases, but permits
1 extension for a like period at the end of the first.236
Where legislative restrictions on the duration of proba-
n permit a sufficiently long time for adequate social
eatment, in the great majority of cases there may be some
stification for the retention of such limitations. As to the
gth of time Which should be designated, it can be argued
at proper selection of probation subjects presuppose that
formation or rehabilitation may be achieved Within a
atively short period, generally 2 years, and if the desired
ults have not been attained Within that period, there is
son to doubt that they may ever be realized. It must also
recalled that a relatively rapid turnover of cases is neces-
in order that already overburdened personnel may be
dy to receive the constant stream of new probationers.
ntinuing cases under supervision for more than 2 or 3
rs increases the case load and may jeopardize the proba-
n program as a Whole. In addition, probation if con-
ued too long “many prove onerous for the probationer” 2“”
thus defeat its own ends.
11 the other hand, predetermination of the period dur-
which treatment may be given seems inconsistent With
nature of a process Which demands individualization
flexibility to accomplish its aims. “The period of pro-
ion should be long enough to afford opportunity for defi-
improvement in the character and conduct of the pro-

Kan. Gen. Stat. Ann. (1935) § 62—2209.

Mo. Stat. Ann. (Vernon, 1932) §§ 3816, 3817.
Mich. Comp. Laws (1920) § 17372.

Neb. Comp. Stat. (1929) § 29-2215.

Conn. Gen. Stat. (Supp. 1931) § 17250.

Me. Rev. Stat. (1930) ch. 147, § 14.

111. Stat. Ann. (Jones, 1936) §§ 37—773, 37—777.
Report of the Crime Commission (N. Y. 1927) 263.

314

bationers. At least 1 year is required in difiicult cases, and
a longer period is often advisable. ‘ The length of proba-
tion in each case should be determined by a study of the
,problem, the needs disclosed, and the progress made.” 238 The
last point is highly important, since no probationer should
be discharged until the case objectives of a sound program
of supervision have been realized.239

The expiration of a set probationary period may find the
probationer “in an undesirable position economically, phys-
iCally, mentally, spiritually, or socially” 24° so that he re-
mains in need of continued probationary oversight. Even
where the probationer’s readjustments have been effected
with apparent ease and rapidity there is need to continue
probation long enough “to warrant a reasonable presump-
tion, based on adequate observations, and testing, that the
probationer, freed from oversight, will under the probable
circumstances of his life maintain a law-abiding and proper
course of conduct.” 2“

The statutes limiting the probation period to the maximum
term of possible imprisonment are particularly vulnerable
to criticism in the case of misdemeanants. A probation
period of 30, 60, or 90 days is too short to afford an oppor-
tunity for the probation department to do any effective
work. In Wisconsin, where this condition obtains, proba-
tion is not encouraged in the case of petty offenders for
this reason, with the result that many persons who would
probably benefit from probation are detained in jails at
great expense to the counties?42

Perhaps with a view to insuring some probationary treat-
ment in every case, Idaho, Montana, and Wisconsin have
provided that the probation period must not be less than
the minimum term of possible imprisonment, and New
Jersey requires that the period be at least 1 year. On the
other hand, the statutes of Pennsylvania and Wisconsin
require that cessation of probation upon payment of a fine
be made a condition of the order. Such legislation seems

“Cooley, op. cit. supra note 124, at 327.

”9 See Cooley, loo. cit. supra note 205.

“° Cooley, supra note 1, at 66.

241Towne, Probation and Suspended Sentence (1916) 7 J. Crim. L. 654, 657.
9‘9 Report of the State board of control, 1932. (Wisconsin) 38.

315

fortunate, since the ability to pay a fine has no necessary
nectiOn with the social rehabilitation of the offender; in
t, the entire purpose of probation may be defeated in
h Cases and the processes of probation utilized as a
venient method for collecting fines.
he probation service throughout the country stands in
d of a standardization of policy with regard to the
gth of the probation period. Both statutory restrictions
d judicial practices in fixing the duration of supervision
d to be reconciled with the aims and purposes of the
bation method. To this end the Survey suggests that:
(1) Statutory provisions requiring or permitting proba-
n to cease upon payment of a fine be repealed.
2) All restrictions of the probation period to a term of
than 1 year, whether in felony or misdemeanor cases
repealed.
3) If statutory limitations of the probation period to a
of 1, 2, or 3 years are retained, courts should have
cretion to extend the term beyond the statutory period
11 the recommendation of the probation officer. Sim-
ly upon recommendation of the probation officer, the
rt should be able to terminate probation and grant dis-
.rge before the expiration of the term originally fixed.
4) Every efl'ort should be made to educate courts to the
esirability and inutility of fixing the probation period
ess than 1 year as well as to the advisability of granting
ensions and early terminations upon the advice of the
ervising oflicer.
5) There is no justification for continuing probationary
rsight beyond 5 years.

OUT-OF-STATE SUPERVISION

requently it becomes desirable to permit probationers
eside outside the jurisdiction of the court which granted
bation and the agency charged with supervision. This
ation arises particularly where the probationer is legally
esident of another jurisdiction and has his home and
ily there. In such cases, permission of the court for
ransfer must be secured since probation is usually
nted upon condition that the offender will not leave the

316

jurisdiction of the court during the period of suspended
sentence.

The transfer of probationers to another jurisdiction
should not be permitted even though favorable economic and
family conditions may indicate that the offender will make
a better adjustment if transferred unless some provision is
made for continued supervision of the probationer. Some
departments have provided nominal oversight in such cases
by requiring the probationer to make written reports at
intervals to the probation officer in the jurisdiction where
release was granted. Other departments, recognizing the
insufficiency of the written report for this purpose, have
worked out reciprocal arrangements for the supervision of
transferred probationers. These arrangements are neces-
sary to insure the supervision of probationers transferred
from one unit to another within the same State.

Recently due to the efforts of the Interstate Commission
on Crime several States have adopted uniform compacts
providing for the transfer and supervision of out-of-State
probationers.248 The compact has been adopted by the fol—

“3 The text of the interstate compact is as follows:

“(1) That it shall be competent for the duly constituted judicial and ad-
ministrative authorities of a State. party to this compact, to permit any
person convicted of any offense within such State and placed on probation or
released on parole or under suspended sentence, to reside in any other State,
party to this compact, while on probation or parole or under suspended
sentence, if:

“(_a) Such person is in fact a resident of or has his family residing within
another compacting State and can obtain employment there;

“(b) Though not a resident of another compacting State and not having
his family residing there, the receiving State consents to such person being
sent there.

“Before granting permission, an opportunity shall be granted to the other
compacting State to investigate the home and prospective employment of
such person.

“A resident of a compacting State, within the meaning of this section, is
one who has been an actual inhabitant of a State continuously for more than
1 year prior to his going to another compacting State and has not resided
continuously within the other compacting State more than 6 months im-
mediately preceding the commission of the offense for which he has been
convicted.

“(2) That each compacting State assume the duties of visitation and of
supervision over probationers or parolees or those under suspended sentence
from any other compacting State, and in the exercise of those duties will be
governed by the same standards that prevail for its own probationers and
parolees and those under suspended sentence.

“(3) That duly constituted officers of compacting States may at all times
enter another compacting State and there apprehend and retake any person
on probation or parole or under suSpended sentence. For these purposes no

317

ing 22 States as of December 31, 1937 : Arizona, Arkan-
, Delaware, Illinois, Indiana, Iowa, Maryland, Massa-
setts, Michigan, Minnesota, Montana, Nebraska, New
mpshire, New Jersey, New Mexico, Ohio, Oregon, Penn-
vania, Rhode Island, Utah, Vermont, and Washington.
had been signed but awaited legislative ratification in
lorado, Kansas, and Wyoming. At the present time
es are being drafted to facilitate the administration of
compacts. The problem is somewhat complicated by
fact that some of the States which have entered into
pacts have no probation statutes while others have made
provision for the supervision of their own probation-
. Consequently, these States are not in a position to
ertake the supervision of probationers from other
tes.
SUMMARY AND CONCLUSIONS

he final phase of the probation process is supervision.
its simplest terms, supervision is the oversight which is
rcised over those who have been placed on probatiorfi/
ly a supervisory process which is, in effect, intensive so-
1 treatment, highly individualized and purposefully re-
structive, can meet the requirements of an adequate pro-
$011 serlvacc.

e essential legal framework for a probation system need

be elaborate. All that is needed is authority in the
rts to suspend criminal sentences indefinitely and statu-
y provision for an agency to supervise the offenders thus
ased. However, true probation treatment cannot be
en unless active field workers devoting full time to their

alities will be required other than establishing the authority of the
er and the identity of the person to be retaken. All former legal require-
ts to obtain extradition of a person on probation or parole or under
ended sentence are hereby expressly waived. The decision of a compact-
State to retake a person on probation or parole or under suspended sen-
e shall be conclusive upon and not reviewable by any other compacting
e: Provided, however, That if at the time when a State seeks to retake
robationer or parolee or one under suspended sentence, there should be
ing against him, within the other compacting State, any criminal charge,
e should be suspected of having committed a criminal oflfense within such
e, he shall not be retaken without the consent of the other compacting
e until discharged from prosecution or from imprisonment for such offense.
(4) That the duly constituted officers of a compacting State shall be
itted, without interference, to transport persons being retaken through
and all States, parties to this compact.”

318

duties as probation officers are employed for supervisory
work. ‘ ,
T6 some extent the States can assure the availability of
probation officers by imposing upon the appointive author-
ity a positive duty to select enough officers to carry out the
objectives of probation treatment. In three of the States
which have enacted probation laws there is no statutory
provision whatever for official supervision of adult proba-
tioners. In one State the only officials who serve as super-
visors are the county sheriffs. In many States the laws pro-
vide for probation officers only in a few metropolitan areas
of the State, leaving the rest of the State dependent upon
volunteer, ea: 0775050, and part-time officers. In one State the
probation statute contains a provision forbidding the pay-
ment of any probation officer out of public funds.
Satisfactory probation service cannot be expected to exist

unless a sufficient number of probation case workers to carry
out all the processes of probation treatment are employed.
There is danger that many communities will neglect proba-
tion work almost entirely unless the laws in each jurisdic-
tion impose upon the authority vested with the appointive
power the express duty to appoint full-time officers. No
community can safely depend upon the services of volunteer
or em 0773050 officers. Where the appointment of probation
officers is left to the discretion of local courts, the probation
service is often inadequate and perfunctory. The situation
is usually worse where local fiscal authorities exercise con-
trol over appointments.

\ The establishment of a State-wide probation service
headed by an administrative officer who is required to super-
vise probationers does not supply the need for supervising
agents in a satisfactory way. It is too much to expect the
administrative director of a centralized State probation sys-
tem to have either the time or energy to supervise in an
effective manner all of the probationers of an entire State.
The primary concern of such officials must of necessity be
with the more general and administrative aspects of the
service. Efficient supervision of probationers requires full-
time officers in each community. If this assistance is lack-
ing, the supervision given by a State probation board can

319

ount to little more than reliance upon written, unverified
umcations from probationers.
he , ersOnality, training, and experience of the super-
ing dilicer in a large measure determines the adequacy of
bation treatment. ' Lax supervision and failure to deal
y with those Who persistently violate the terms of re-
se e{can only bring the entire probation system into disre-
Adequate probation supervision must deal with all
ses of the offender’s life, including his family and the
unity in which he lives / Although there 1s some con-
versy among case workers and writers on probation as
he value and propriety of many specific techniques for
ervision, all recognize the usefulness of a plan of treat-
t based on the needs, capacities, and limitations of each
nder. The physical and mental health, capacities, and
itationsbf the offender; his home and family; his leisure-
e activities; his religious life; his education, vocational
'ning; economic status and industrial habits, as well as
capacity for discipline and self- control must all be con-
red by those who are attempting to remold him into a
thwhile oltlzen.
he need for mental and psychiatric examination and
tment of probationers is not met in many probation
Although, at present, funds to maintain public clin-
or this purpose are insufficient, assistance may be secured
often from the out-patient clinics of hospitals or from
sicians who are willing to devote part of their time to
service either on a fee or gratuity basis. The estab-
ent by the State of strategically located psychiatric
medical clinics to serve the criminal courts, probation,
parole departments in a given region might provide an
ptable solution of the problem. Until something of the
is available the ofiicer must continue to bear the burden
ecurmg needed assistance of this type.
e employed probationer, as a general rule, is a less
cult case to deal with during supervision than the of-
er who is not working; Regular habits of work and a
dy income usually have a salutary effect upon the pro-
oner. While employment has its most favorable in-
nce upon the probationer when he is able to engage in

320

work which interests him, any respectable employment is
better than none at all.

\Frequently, vocational training and guidance must be
resorted to during supervision in order to readjust the of-
fender indust1ially Few probation departments employ
experts in vocational guidance, and at the present time the
most feasible method of handling this problem would seem
to be by means of close cooperation between the supervising
officer and local employment agencies and vocational train-
ing centers _

In many cases, supervision must be given not only to the
probationer but to members of his family as well. Family
readjustment is frequently necessary in order to create for
the probationer a reasonably favorable opportunity for re-
habilitation. . :The task of effecting family adjustments
is a delicate and complicated one which usually requires
special training and experience in handling the problems 1n-
volved. The officer should act in this matter as an analyst,
diagnostician, and friendly counsellor, directing the family
to those agencies in the community which are best equipped
to supply it with the help it needs.

Ijecreation and leisure time activities form an influential
part of the probationer’s life and frequently require redi-
rection and the substitution of new interests and associa-
tions for old. In addition, attention should be given, so
far as possible, to supplementing the probationer’s educa-
tion along academic and practical lines.

In order to deal afliimatively with all the aspects of the
prObationer’s life which require treatment, the probation
officer cannot act entirely alone. EHe must, wherever pos-
sible, endeavor to secure the assistance and coope1ation of
community leaders and agencies. In many cases settlement
houses and other social agencies can perform services for
the offender more effectively than the officer. Responsibility
for securing the assistance of other social agencies rests
with the probation officer. This is an indispensable part of
his duty and where it is neglected probation work will
remain unsatlsfactory

.' r atiOnary treatment necessitates frequent and continu-
ous contact between the offendei and the probation officer.

321

this reason, a written ieport mailed from the proba-
er to the supervising agency constitutes an unsatisfac-
means of supervision. Although the probationer may
some benefit fr om the habit of reviewing his conduct
writing an account of it for others, the lack of intimate
tact between offender and supervisor presents an insuper-
obstacle to the inauguration of any type" of social
tment. The use of the written. report is avoided when-
possible by effective probation units. Unfortunately,
in general use in many rural and smaller urban pro-
on units and in several States where the only avail-
supervising agency is the administrative director of
State-wide probation service.
he visit of the probationer to the probation office, though
uently criticized, remains the most common method of
ation supervision even in progressive and highly
loped probation departments; In many of these the
onal report is supplemented by visits of the probation
rs to the offender’s home and community. The princi-
advantage of the personal report is that it enables the
and frequently overburdened probation officer to see
of his charges regularly. Perhaps the chief reason for
isfavor with which this method of supervision is viewed
any writers is that there has been a tendency in far
many communities to make a purely perfunctory per-
1 report the sole method of supervising probationers.
11, however, the personal report is combined with fre-
t visits by the oflicer to the probationer’s home and"
hborhood, it has a useful and legitimate place in super-'
od probation service is impossible where officers are
elled to handle too many cases. Nevertheless, few
ation units are adequately staffed. A case load of 50
ders per officer for supervision has been suggested as
able. However, in determining this matter various
rs must be taken into consideration. These include the
ing and experience of the officer, the division of duties
., investigation and supervision), the geographical
ibution of probationers, the transportation facilities
lable, the extent of community resources and community

322

cooperation with the officer, the character of the selective
process. The existence, interrelation and effect of these and
other factors may render a case load of more or less than
50 desirable. Nevertheless, case loads in almost all parts of
the country greatly exceed 50. Appreciable reductions ap-
pear to be necessary before the quality of probation super-
vision can be improved.

‘ The period spent on probation in many cases is far too
shert in which to undertake a purposeful and adequate proc-
ess of supervision. In some jurisdictions this is the result
of statutory limitations upon the length of the probation
period. In many others responsibility must be placed upon
the courts which have failed to exercise the discretion
granted them in this matter in a realistic and satisfactory
way. Every effort should be made to impress upon courts
the undesirability of fixing the probation period at less than
1‘ Or 2 years. In addition, judges should be educated to the
advisability of granting extensions or early terminations
of probation upon the advice of the supervising officer.
Statutory provisions requiring or permitting probation to
cease upon payment of a fine should be repealed.

‘ Restrictions of the probation period to a term of 1 year,
whether in felony or misdemeanor cases, frequently prevent
completion of the process of social readjustment. Where
statutes limit probation to 1, 2, or 3 years, courts should be
given discretionary power to extend the period. An in-
definite term of probation 11p to 5 years may be desirable,
but extension of the period beyond 5 years would seem to
be inadvisable.

CHAPTER IX

REVOCATION AND TERMINATION OF
PROBATION

REVOCATION PROCEDURE

Who may revoke—In the Federal system and all States
cept Iowa, Missouri, Montana, North Dakota, and Wis-
nsin: the courts are the sole authorities empowered to re-
ke the suspension of sentence and probation and to order
carcerationf‘)‘; Since the Iowa parole board has power to
lease persons on “parole” prior to commitment, it has the
1thority to declare such parolees delinquent and order
mmitment.1 In certain counties in Missouri the power
grant bench parole is vested in a board composed largely
the judges in the county, and in such instances the board
s exclusive power to revoke “parole.” 2 After suspending
tence, unless the power to revoke is retained, the Mon-
na courts lose jurisdiction of cases of probation and re-
cation may be ordered only by the board of prison com-
ssioners.3 The board of administratiOn has the sole
wer of revoking probation in penitentiary cases in North
kota.‘ The Wisconsin statutes yest the revoking author-
with the courts in misdemeanor cases and in all cases
'sing in Milwaukee County; but in all other cases the
ard of control, through its probation department, exer-
es control over probationers.5
Grounds for revocation.—{—Every probation statute, either
express language or by reasonable implication, provides
t probation may be revoked for any violation of condi-
ns.‘ A few States go further and permit revocation if it

Iowa Code (1935) § 3805.

See, e. 9., Mo. Stat. Ann. (Vernon, 1932) §3812.

Mont; Rev. Codes Ann. (Anderson & McFarland, 1935) §12084. Mont.
s 1937, ch. 184 authorized the courts to retain power to revoke. Thereto—
the board had had exclusive powers in this respect.

N. D. Comp. Laws Ann. (1913) § 10954.

Wis. Stat. (1935) §§ 57.03 (1), 57.04 (2).

(323)

324

is found that the probationer practiced fraud upon the court
or misrepresented facts prior to being released on proba-
tion,8 or that his conduct is inconsistent with good citizen-
ship.7 Logically, it would seem that some violation of con-
ditions is necessary before probation can be revoked, but
it has been held by a Federal court that sentence may be
imposed at the expiration of the probation period even
though it affirmatively appears that the probationer’s con-
duct has been good.8

Conviction or commission of a new crime is not neces-
sary,9 although the practice in some States is such that vio-
lations are seldom called to the attention of the court un-
less the probationer is charged with or has been convicted
of an offense. Where such practice prevails it is not un-
usual to find that revocation is not ordered if the punish-
ment meted out for the second offense seems adequate under
the circumstances. On the other hand, if any difiiculty is
anticipated in procuring a conviction on the second charge

or if incarceration therefor is to be in the county jail :
whereas the sentence which had been suspended required .

service in the State penitentiary, considerations of expedi-
ency and local economy may dictate that revocation is pref-
erable to prosecution of the new offense. In either event,

the net result is that the offender escapes punishment for ‘

one crime.

The fact is frequently overlooked that, although the stat— ‘

ute may sanction revocation for any violation of condi-
tions—Which in some instances are so broad and general
that definitive standards of conduct are nonexistent—revo-

cation does not occur unless the conduct deemed violative ,
of the terms of the probation order is called to the attention f
of the court. The criterion of success of ,a probation de-

partment cannot be stated in terms of the percentage of
probationers who, during the probation period, do not re-
ceive a formal revocation of their probation, from which

°Idaho Code Ann. (1932) § 19—2502.
'Tenn. Code Ann. (Williams. 1934) § 11802.3.
l*Rec-ves v. United States, 35 F. (2d) 323 (C. C. A. 8th, 1929).

°Riggs V. United States, 14 F. (2d) 5 (C. C. A. 4th, 1926); Selle-r8 v. 1

State, 105 Neb. 748, 181 N. W. 862 (1921); Comm. V. Miller, 63 Pa. Super.
548 (1916).

325

atement the inference might be drawn that probationers
ot haled before the court committed no acts forbidden by
e terms of their release. Manifestly any such generaliza-
on is misleading and inaccurate. If the policy of a de-
artment is to recommend revocation only for breaches
ounting to a criminal offense, its record cannot be com-
ared on the same basis with that of another department
hich insists upon a strict compliance with all of the condi-
ons of probation. Moreover, the attitude of the probation
cer in this regard is highly important because his con-
ption of what constitutes a violation sufficiently serious
warrant a recommendation of revocation cannot be re-
cted in any statistical table. The impracticability, there-
re, of utilizing recorded revocations as a reflection of the
equency of violations of conditions is apparent.
When revocation may be ordered—The majority of States
d the Federal system provide that the court may revoke
obation at any time during the probation period. A few
ipulate, in addition to the above provision, that revoca-
on may be ordered after the expiration of the probation
riod but within the maximum period for which the de-
ndant could have been sentenced to imprisonment.10
ther States, which do not prescribe the duration of the
obation period, apparently permit revocation at any time
ovided that the probationer has not been discharged.11
On the whole, the statutes are silent on the point of
ether the entire revocation procedure, culminating in the
rmal order of commitment, must be completed within the
obation period. If apprehension, hearing, and commit-
ent (or sentence) must occur before the probation period
pires, it follows that a defendant may evade detection
ar the end of his period and thus defeat revocation. Only
ew courts have passed on this subject.

00010. Stat. Ann. (Mitchie, 1935) ch. 140, § 7; N. Y. Penal Law § 2188,
Y. Code Crim. Proc. §§ 470a, 483 (4); Va. Code (Michie, 1936) § 1922b;
Va. Code Ann. (Michie. Supp. 1933) § 6134; 18 U. S. C. § 725 (1934).

11Arkansas: Denham v. State, 180 Ark. 382, 21 S. W. (2d) 608 (1929);
rtley v. State, 184 Ark, 237, 42 S. W. (2d) 7 (1931); Iowa: Bennett v.
adley, 216 Iowa 1267, 249 N. W. 651 (1933); Maryland: Md. Code Ann.
agby, Supp. 1929) art. 27, § 577A; Oregon: Ore. Code Ann. (1930)
13-1126 (bench parole); Rhode Island; Roderick, Petitioner, 45 R. I. 153,

Atl. 674 (1923).

326

The Arizona court recently took a strict view of the revo-
cation procedure. The statute in that State reads that
revocation may be ordered “at any time during the period
of probation,” but “if the court has not seen fit to revoke
the order and impose sentence or pronounce judgment, the
defendant shall, at the end of the term of probation, be by
the court discharged.” 1”- This provision was construed to
mean “not only that the order of probation should be re-
voked, but also that sentence be imposed during the period
of probation.” 13 A somewhat similar decision was reached
by the Ohio Court of Appeals, which held that, in View of
the phrasing of the probation statute that “the jurisdiction
of the court or magistrate to impose sentence shall cease” 1‘
at the end or termination of the probation period, the trial
court was without. power 5 days after the expiration of the
period to continue the probation.15 Since the extension of
the probationary term was invalid, an attempt to revoke the
order and impose sentence thereafter was likewise void.

In Vermont, if the revocation procedure was begun prior
to the expiration of the statutory period, revocation may be
ordered thereafter.16 The New York law provides that revo-
cation may not be ordered after the probation period or the
maximum period for which sentence could have been imposed
has expired, unless the probationer was convicted of crime
within either of those periods.17 Under a statutory provision
authorizing revocation at any time during the probation pe—
riod, the Michigan court has held that where the petition to

1”Ariz. Rev. Code Ann. (Struckmeyer, 1928) § 5105.

18117.7: parte Keene, 47 Ariz. 191, 194, 54 P. (2d) 791, 792 (1936). In
this case the court had ordered the arrest of the probationer within the
period, but for some reason not appearing in the report the probationer was
not brought before the court until more than 2 years after the probation
period had expired. Reliance was placed upon the decision of the California
court in People v. O’Donnell, 37 Cal. App. 192, 174 Pac. 102 (1918). But in
that case the probationer had absented himself from the State for the
entire period, which amounted to a violation, and no eifort was made to
apprehend him until he returned to the State after the expiration of the
period. The court indicated that if proceedings had been initiated for revoca-
tion during the period, another result might have been reached. Thus the
O’Donnell case is easily distinguishable from the decision of the Arizona court
in the Keene case. '

1‘ Ohio Code Ann. (Throckmorton, 1936) § 13452—7.

15 Ex parte Miles, 35 Ohio App. 553, 172 N. E. 703 (1930).

1° Ex parte Parker, 107 Vt. 463, 181 At]. 106 (1935).

17 N. Y. Penal Law § 2188; N. Y. Code Crim. Proc. § 483 (4).

3-27

evoke was filed within the period, such action gave the court
urisdiction to enter the order revoking probation within a.
easonable time following expiration of the probation
eriod.18 In Pennsylvania, revocation of the suspended
ntence must be made within the term of the maximum
ossible sentence, although it may be made after the pe-
'0d of probation (where that period is shorter than the
aximum possible sentence) if the violation occurred
ithin the period. 1"
Apprehension of probation violators .—1About two-thirds
f the States specifically provide that the probationer may
e arrested with or without warrant during the probation
eriod. 20} A few of these provide further that after the
piration of the probation period, but within the maxi-
um period of possible sentence, the court may issue a
arrant for the probationer’s arrest.21 In most of these
tates the probation officer, in addition to peace oflicers
enerally, is empowered to arrest the probationer, but in
entucky, North Carolina, and Oregon the statutes seem
contemplate that the arrest shall be made by peace of-
cers since the arresting officer must have a written state-
ent from the probation officer in order to arrest a proba-
oner without a warrant. A small number of States 2"
ovide that the court may issue process or that the proba-
on oflicer may surrender the probationer. In about 10
risdictions 23 the statutes are silent on this point, but
ere seems to be no reason to doubt that the court has
ple power to issue process as a necessary incident to the
wer of suspending sentence.

13 People v. Hodges, 231 Mich. 656, 204 N. W. 801 (1925).
19Pa. Stat. (Purdon, 1936) title 19, § 1056; Comm. ea: rel. Wilhelm v-
organ, 278 Pa. 395, 123 Atl. 337 (1924). No case has passed on the ques-
n whether revocation may be had after the maximum possible sentence
riod has expired although violation occurred within that period.
20 Arizona, California, Colorado, Connecticut, Delaware, Georgia, Illinois,
diana, Kentucky, Massachusetts, Montana, Nebraska, New Jersey, North
rolina, North Dakota, Ohio, Oregon, Tennessee, Utah, Vermont, West Vir-
nia, Wisconsin, and the Federal System.
21 Colorado, Indiana, and West Virginia.
*2 Idaho, Maine, Pennsylvania, Rhode Island, and Virginia.
”Arkansas, District of Columbia. Iowa, Kansas, Maryland, Michigan, Minne-
ta, Missouri, New York, and Washington.

73115—39—v0L. II 22

 

328

There is considerable sentiment that probation officers
should not be empowered directly to apprehend violators?1
This attitude is justified on the ground that probation of-
ficers are not. chosen with an eye to their qualifications as
policemen and that the possession of such power may lead
the officer to adopt an attitude of repression whereas the
emphasis should be upon constructive rehabilitation of the
probationer. This contention has considerable merit, but
it can hardly be expected that a statutory pronouncement
depriving probation officers of the power to arrest would
work any measurable improvement in probation procedure.
In any event, the initial impetus leading to revocation must
come from the probation oflicer and whether or not he pos-
sesses the power of arrest seems, from a theoretical stand-
point, immaterial. However, time spent by probation of-
ficers in apprehending violators could be better utilized in
performing more constructive duties rather than in in-
' ti‘uding into the domain of the police. This and other
practical considerations indicate that, on the whole, appre-
hension of violators should be made by the regular law—en-
forcement personnel. '

Probably one reason for the prevalence of provisions au-
thorizing probation officers to arrest probationers is that
not infrequently the police, sheriffs, and other peace offi-
cers constitute the supervisory probation personnel; at least
this condition obtained more generally in the evolutionary
stages of probation, before there was any general accept-
ance of the idea that a professional group is needed for
the proper administration of a probatio ystem.

Provisions for notice and hearing—the large majority
of States require that before revocation is ordered the ac-
cused probationer should be given due notice and an op-
portunity to be heard."_wiThe statutory provisions on the
subject are in many cases vague and the requirement of a
hearing must be inferred from language to the effect that

2* The Wisconsin probation department in 1934 expressed the opinion that
arresting duties should not be placed upon probation officers. as “such duties
are not only contrary to the theory of probation, but at times might create
embarrassing situations because probation oflicers are not selected because of
their ability to do police work but rather for their understanding and skill in
handling social problems.” Report, Wis. Prob. Dep’t 1934, p. 92.

A. .Anrhnm..._-_m..____.mn 4

329

he probationer accused of violating the terms of his re-
ease shall be “brought before the court.” What type of
wearing is sufficient to satisfy the legislative requirement
s seldom specified; a few statutes enjoin the court to ac-
ord a “summary hearing,” 25 or that “due examinations” 2“
hall be made into the charges of violation, or that a “full
nvestigation and a personal hearing” 27 shall be given.

In at least five States 28 the court may proceed to revoke
robation without notice and hearing. The courts in these
tates have uniformly held that proceedings resulting in a
evocation of the probation order without affording the
robationer an opportunity to be heard do not deprive him
1" any constitutional right or privilege.29 However, the
easoning upon which this procedure has been sustained is
ot particularly clear. If a constitutional right is involved,
t seems unduly technical to sustain a revocation without a
earing on the ground that the probationer accepted the
robationary release subject to the possibility of being com-
itted without an opportunity to explain.30 The better
xplanation is probably that the “liberty” given the proba-
ioner is entirely a matter of grace and creates no “vested
ight” which should be protected by the constitutional guar-
nty of due process.

A great diversity of opinion among the courts has arisen
n the process of deciding just what procedural attributes
re necessary to make the hearing comply with the vague
tatutory directions. The cases range from those uphold-
g informal summary procedure to those insisting upon
irtually all the characteristics of a common law trial.

The Federal probation law merely provides that, follow-
ng arrest for an alleged violation of conditions, the pro-

25 Mich. Comp. Laws (1929) § 17374; N. J. Laws 1929, ch. 156, § 4; Ore.
ode Ann. (Supp. 1935) § 13—1147; Vt. Pub. Laws (1933) § 8879.

26Ga. Code (1933) § 27—2705.

"N. D. Comp. Laws Ann. (1913) § 10956; Wis. Stat. (1935) § 57.03 (1).

23 California, Iowa, Kansas, Minnesota, and Missouri.

29 Pagano v. Bechly, 211 Iowa 1294, 232 N. W. 798 (1930) ; In re Patterson,
4 Kan. 439, 146 Pac. 1009 (1915); State v. Chandler, 158 Minn. 447, 197
. W. 847 (1924) ; State v. Collins, 225 Mo. 633, 125 S. W. 465 (1910); see
ecple v. O’Donnell, 37 Cal. App. 192, 174 Pac. 102 (1918) ; People v. Sanders,
4 Cal. App. 1. 220 Pac. 24 (1923); Ea; part6 Young, 121 Cal. App. 711, 10 P.
2d) 154 (1932).

30 See the language in Pagano v. Bechly and In re Patterson, both supra.

330

bationer “shall forthwith be taken before the court” and
contains no further provision for a ‘hearing. In constru-
ing this statute the Supreme Court held that it was manda-
tory that the accused probationer be taken before the court:
“Clearly the end and aim of an appearance before the court
must be to enable an accused probationer to explain aWay
the accusations. The charge against him may have been
inspired by rumor or mistake or even downright malice.
He shall have a chance to say his say before the word of
his pursuers is received to his undoing. This does not mean
that he may insist upon a trial in any strict or formal
sense. * * * It does mean that there shall be an in-
quiry so fitted in its range to the needs of the occasion as
to justify the conclusion that discretion has not been abused
by the failure of the inquisitor to carry the probe deeper.” 3‘

State courts have reached a substantially similar result
under comparable statutes. In Vermont the statutory pro-
vision that the court shall inquire summarily into the con-
duct of the probationer “means that such inquiry shall be
speedy and informal—unhampered by the procedure in-
cident to a common law trial.” 32 The Wisconsin court
pointed out that “Beneficent results could not be secured
under the probation law if every probationer was entitled
to a trial—perhaps a jury trial—to determine whether his
probation should be terminated.” 33

At the other extreme we find the courts of Nebraska and
Utah. In Sellers v. State 34 a revocation had upon motion,
notice, and hearing, with the assistance of counsel and the
presentation of testimony being accorded the accused, was

 

31Escoe v. Zerbst, 295 U. S. 490, 493 (1935). The court expressly rejected
the petitioner’s contention that the privilege of a hearing had a basis in the
due process clause of the fifth amendment. Thus if the statute had not been
interpreted to require a hearing, no basis for objection could have been raised.
Since the due process clauses of the fifth and fourteenth amendments have
been interpreted somewhat similarly, this decision would seem to indicate that
state statutes permitting revocation of probation without notice and hearing
are not contrary to any provision in the Federal Constitution. Cf. Williams v.
State, 162 Ga. 327, 133 S. E. 843 (1926), where the court stated that the
Georgia probation law did not violate the fourteenth amendment “because the
probationer is not deprived of liberty without a hearing. " " *” ,

33Ea' parte McAllistcr, 97 Vt. 359, 361, 123 Atl. 207 (1924); see also
In re Hall, 100 Vt. 197, 136 Atl. 24 (1927).

33Brazosky v. State, 197 Wis. 416, 453, 222 N. W. 311, 313 (1928).

3‘ 105 Neb. 748, 181 N. W. 862 (1921).

331

held proper, but it was added by the court, perhaps out of
an abundance of caution, that “proper practice requires a
verified information stating specifically the conduct con-
stituting a violation * * *.” The Utah court has gone
even further. Conceding that the statute in question, which
merely authorized the trial court to “revoke or modify any
condition of probation,” 3“ did not point out a method of
procedure, the opinion went on to erect safeguards prob-
ably never contemplated by the legislature. The court
stated that “a person who has a sentence suspended during
good behavior, without any limitation, is entitled to a hear-
ing upon the question of whether or not he has complied
with the conditions imposed; that such hearing must be
according to some well recognized and established rules of
judicial procedure; that defendant is entitled to have filed
either an affidavit, motion, or other written pleading set-
ting forth the facts relied upon for a revocation of the sus-
pension of sentence; that the defendant should be given an
opportunity to answer or plead to the charge made; that a
hearing should be had upon the issues joined; and that the
defendant as well as the State be given the right of cross-
examination.” 3" .

The Washington statute says nothing about notice and
hearing; execution of sentence is suspended “until other-
wise ordered” by the court. 37 However, an ea: part6 order
revoking a suspended sentence without notice and in the
absence of the defendant is void.38 The court assumed that
a “substantial right” of the defendant was involved, and
that to enter a revocation order without giving the de-
fendant an opportunity to be heard “is to disregard a prin-
ciple as old as the law itself.” 39

Considerations of fair play ought to dictate that the
accused probationer be given a chance “to say his say before

3‘ Utah Rev. Stat. Ann. (1933) § 105—36—17.

“State v. Zolantakis, 70 Utah 296, 305, 259 Pac. 1044, 1047 (1927).
“Wash. Rev. Stat. Ann. (Remington, 1932) § 2280.

9~3Statc v. O’Neal, 147 Wash. 169, 265 Pac. 175 (1928).

39The court quoted with approval and adopted the reasoning of Ea: part6

Lucero, 23 N. M. 433, 168 Pac. 713 (1918), wherein it was stated that “it
would seem that due process of law would require notice and opportunity

to be heard before a defendant can be committed under suspended sentence."

332

the word of his pursuers is received to his undoing.” 4° To
leave the determination of whether an order revoking pro-
bation shall be entered to the discretion of the court acting
on ea: part6 evidence, is apt to create the impression that
the court is acting capriciously and arbitrarily and to leave
a rankling sense of injustice. Even though it be granted
that the court has absolute discretion in granting proba-
tion and that probation is a matter of grace and not of
right, a sense of fair play requires that some inquiry be
made and that the accused be given an opportunity to ex-
plain before he is deprived of his conditional freedom. This
freedom in legal contemplation may not amount to a
“vested right” accorded constitutional protection but is,
nevertheless, a very great privilege to the probationer.
However, it is unfortunate that some courts have viewed
revocation proceedings as virtually analogous to a trial.
By thus erecting rigid procedural safeguards the courts
have placed the probationer in a position hardly compatible
with that contemplated by the discretionary and conditional
nature of his release.

No probation statute specifies the amount of proof neces-
sary to support an order of revocation, but leaves the matter
to the sound discretion of the court. Although there must
be some proof of violation,41 no particular source, manner,
or degree of proof is required by statute.42 Generally
speaking, evidence sufficient to convince the court that the
defendant has not complied with the conditions of his re-
lease,43 or that his conduct has not been good,“ is adequate.
Proof of a conviction of another crime is by no means neces-
sary.45 However, some courts under a plain suspension of
sentence statute, have decided that “good behavior” means
refraining from Violating the law, so that revocation can be
ordered only upon conviction for another crime.46

‘° Escoe v. Zerhst. 295 U. S. 490. 493 (1935).

‘1 In re Maguth, 103 Cal. App. 572, 284 PaC. 940 (1930).

‘2 In re Young, 121 Cal. App. 711. 10 P. (2d) 154 (1932).

‘3 Ea: part6 McAllister, 97 Vt. 359. 123 A11. 207 (1924).

44 Campbell v. Aderhold, 36 F. (2d) 366 (D. C. Ga. 1929). _

45 Riggs v. United States, 14 F. (2d) 5 (C. C. A. 4th. 1926) ; Sellers v. State,
105 Neb. 748, 181 N. W. 862 (1921); Comm. v. Miller, 63 Pa. Super. 548
(1916).

‘° In re Hcmler, 157 La. 227, 102 So. 316 (1924). The Louisiana statutes
define good behavior as absence of a conviction of any felony or misdemeanor.

333

Revocation proceedings may, generally, be scrutinized by
pellate courts either through Izabeas corpus proceedings
on direct appeal.47 However, the action of the trial court
'11 not be disturbed if there was some evidence justifying
8 action ‘3 or if no abuse of discretion appearsfi9
E fleet of 7’er00ati0n.—Practically all probation statutes
ecifically provide that upon revocation of probation the
urt may proceed to order commitment as if no probation
d been granted. The usual provision is that the court
ay then impose any sentence which might originally have
en imposed. In some States the court’s liberty to impose
ntence upon revocation is limited to those cases in which
position of sentence was originally suspended; and where
ntence was imposed but its execution suspended the origi-
l sentence becomes effective. That is, the statute is so
irased that if sentence was pronounced prior to the grant
probation but its execution stayed, then upon revocation
is sentence goes into effect. On the other hand, if the
atute makes no differentiation between the procedures to
followed upon revocation in regard to suspension of im-
osition and execution, the court seems free to “impose any
ntence which might originally have been imposed” even in
case where sentence was originally imposed but execution
spended. It is evident, therefore, that treatment of pro-
tion violators under these two different provisions may
varied only where execution of sentence has been
spended.
The difference in result under these two types of pro-
sions may perhaps be best pointed out by a hypothetical
ample. Let it be assumed that X has been convicted of
crime for which he may be imprisoned from 3 to 10
ars. He is sentenced to 5 years, but execution is sus-

. Code Crim. Proc. Ann. (Dart, 1932) art. 537, 538. See also State v.
rdin, 183 N. C. 815, 112 S. E. 593 (1922) (violation must be of a State,
t Federal, law).

47 Missouri seems to be the only State which specifically provides that revoca-
n of “parole” is not subject to review. Mo. Stat. Ann. (Vernon, 1932)
3821.

“Peeple v. Fields, 131 Cal. App. 56, 20 P. (2d) 988 (1933).

“Olsen v. State, 21 Ga. App. 795, 95 S. E. 269 (1918); State v. Wall, 189
inn. 265, 249 N. W. 37 (1933); Comm. v. Miller, 63 Pa. Super. 548 (1916).

334

pended and he is placed on probation. He later violates his
probation and proceedings are held resulting in revocation.
Under the type of statute which provides that in such event
the original sentence becomes effective, the court has no
alternative except to order commitment for 5 years. How-
ever, under the type of statute which provides that upon
revocation the court may impose any sentence which might
might originally have been imposed, irrespective of whether
imposition or execution was suspended, it is possible that
the court may order X to be imprisoned for a shorter or
longer period than 5 years.

The Federal probation law is of the type last mentioned;
that is, upon revocation the court may impose any sentence
which might originally have been imposed, whether imposi-
tion or execution of sentence was suspended.50 It has been
held that when suspension of execution is revoked the court
may modify the original sentence so as to decrease the term
of imprisonment.51 Thus in the hypothetical case X having
been originally sentenced to 5 years, may upon revocation
be resentenced to only 3 years. No case was found wherein
the court, upon revocation of suspension of execution in-
creased the original sentence. Yet under a statutory pro-
vision similar to that in the Federal law, the hypothetical
probationer might be subjected to imprisonment for more
than 5 years if the court felt that the original sentence was
too mild. It is possible to argue that if such action were
taken the increased sentence might be open to the attack
that the defendant was twice placed in jeopardy for the
same offense in violation of the Constitution.

Only a few States specifically provide that the time spent
on probation is not to be taken into account to diminish
the time for which the probationer may be imprisoned fol-
lowing revocation. Where the statute is silent or vague on
the point, the courts have refused to give credit for the
time spent on probation.‘52 In Georgia, however, the proba-

5018 U. S. 0. § 725 (1934).

‘1 United States v. Antinori, 59 F. (2d) 171 (C. C. A. 5th, 1932).

52Kepler; v. Hecht, 24 F. (2d) 664 (C. C. A. 2d, 1928) ; Belden v. Hugo, 88
Conn. 500, 91 At]. 369 (1914); Bowers v. Wilson, 143 Kan. 732, 56 P. (2d)

335

on statute provides that the court “may mold its sentence
as to allow the defendant to serve same outside the con-
nes of the chain gang, jail, or other place of detention.” ‘3
nder this statute the court found that “a sentence of pro-
ation is as much a sentence of the court as is the judgment
quiring the convict to serve the period of time fixed by the
ntence in the jail or chain gang.” Consequently, “the
me served by the convict under the order and sentence
rior to the revocation must be counted in favor of the
efendant and deducted from the period of service
posed.” 5“ '
Although all States having adult probation laws, with
e exception of Georgia, provide, either by statute or deci-
on, that the time spent on probation shall not be credited
the sentence imposed upon revocation, as a practical
atter the probation violator not infrequently gets credit
r the probation period. This result may be achieved by
e imposition of less severe sentences on probation violat-
rs than they would originally have received. No statisti-
l comparisons are available on this point, but it has been
served that courts frequently impose a sentence upon a
obation violator which, together with the time spent on
obation, would approximate the sentence initially im-
sed in a like case where no probation had been granted.

FREQUENCY OF REVOCATION

To obtain some idea of the frequency of revocation of
obation, a study was made of 19,256 cases in 25 probation
its in 16 States and the District of Columbia. The cases
nsidered comprise a random sample of the probationers
ose probation periods, as revealed by the available case-
story records were terminated, either by revocation or dis-

2 (1936); King v. Comm. 246 Mass. 57, 140 N. E. 253 (1923); In re
unce, 307 Mo. 40, 269 S. W. 385 (1925) ; In re Hall, 100 Vt. 197. 136 Atl.
(1927).
‘3 Ga. Code (1933) § 27—2702.

Wimbish v. Reece, 170 Ga. 64, 152 S. E. 97 (1929).

336

charge, during the 3-year period from 1933 to 1935, inclu-
sive.“ ‘

The data which follow are presented in summary form,
with the cases from the 25 probation units lumped together.
No separate treatment is given of the frequency of revoca-
tion in each unit because these figures might lead to invalid
comparisons. As has been pointed out previously, the in-
tensity of supervision and the policies of a particular de-
partment influence the frequency of revocation. Hence it
by no means follows that a low rate of revocation in a
particular department indicates that few probationers vio-
late the terms of release. A high rate of revocation may be
attributable to intensive supervision, whereas a low rate
may be due to lax supervision. Hence revocation statistics
cannot be utilized to compare the efficiency of probation de-
partments.

As used in thisstudy, violations of probation consist of
recorded infractions of the terms of release. Violations have
been divided into two groups; namely, violations of condi-
tions and violations by a new offense. While it is true that

 

“The following units were employed in making the analysis:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Name of unit: Number of cases
Arizona. Maricopa County 335
California, Los Angeies 3,567
Colorado, Denver 268
District of (‘nlnmhin 959
Illinois, Cook County 1,578
Kansas (State) 313
Minnesota, Hennepin County 328
Minnesota, Ramsey County 292
Missouri, Sixteenth judicial district 85
Missouri, St. Louis 303
Maryland, Baltimore 125
Massachusetts, Springfield 385
Massachusetts, Suffolk County 598
New York, Erie County 384
New York City, Court of General Sessions ________ 415
New York, Kings County 1,456
New Jersey, Essex County 962
Ohio, Hamilton County 361
Ohio, Cuyahoga County ___.. 826
Pennsylvania, Allegheny County 1, 924
Pennsylvania, Berks County 301
Rhode Island 263
Vermont 439
Wisconsin State Board of Control ________________ 1, 964
Wisconsin, Milwaukee County 825

 

Tota1-___i_- _____ 19, 256

 

337

law observance is generally made a condition of release, it
seems advisable to separate violations that constitute new
offenses from violations that consist of conduct which does
not amount to a criminal offense. Not only does the general
public consider violations by offense to be more serious, but
probation departments frequently pursue a different policy
with respect to the two types of violations. All violations
recorded in the case-history files are included, whether or
not they resulted in revocation. The data collected reveal
that in almost all departments a higher percentage of offense
violations resulted in revocation, while violations of condi-
tions less frequently resulted in revocation.
A great deal of caution must be used in interpreting the
data on recorded violations and revocations. The respective
ercentages are not representative of the situation either in
he country as a whole or in any particular probation de-
partment. They cannot be used to indicate the frequency
of violations or the relative “success” or “failure” of pro-
bationary treatment. However, they do reveal, in a general
way, the relation between recorded violations and revoca-
tions. Since the data include departments that have strict
olicies of revocation coupled with intensive supervision, as
ell as departments that exercise a minimum amount of
upervision and revoke only for flagrant violations, it is
ot unlikely that the general average of revocation is some-
hat less than might be expected if a uniform and efficient
olicy of supervision were maintained in all departments
onsidered.
Of the 19,256 cases analyzed, 11,712 (61 percent) revealed
0 recorded violations during the probation period, whereas
he records of 7,544 probationers (39 percent) showed that
he terms of release had been violated. 3,497 (18 percent)
f these recorded violations were new-offense violations, and
,047 (21 percent) were violations of conditions. However,
ot all of the recorded violations resulted in revocation.
evocation was ordered in 3,624 cases, or 19 percent of the
.otal cases. The probationary terms of 2,288 offenders (12
ercent) were revoked for violations by new offenses, and in
,336 cases (7 percent) revocation was ordered because of
iolation of conditions.

338

It appears, therefore, that about two-fifths of the proba-
tioners considered violated the terms of release, but that
revocation occurred in less than one-fifth of the total cases.
“Moreover, although recorded violations of conditions con-
stituted a larger proportion of the total cases than violations
by new offenses, the number of revocations for new offenses
was significantly larger than the number of revocations for
violations of conditions. It is not surprising, however, that
fewer violations in the new-offense group should go unre-
voked. Offense violations are not only more serious, but
departments frequently consider violations of minor con-
ditions a matter rather for informal adjustment than for
revocation.

The number of recorded violations and revocations is
more strikingly brought out when studied in relation to spe-
cific groups of probationers. For this purpose, probationers
have been classified into groups according to certain char-
acteristics. The first grouping comprises those offenders
whose case histories disclosed the presence or absence of a
record of prior commitments to penal or correctional insti-
tutions. In addition, the relations between revocation and
the degree of employment during the period of supervision,
the race of the offender, and the age of the probationer when
release was granted, are considered. The results of this
analysis are given in table I.

The data were sufficiently complete to permit the classi-
fication of 17,756 probationers according to the presence or
absence of prior incarcerations. Cases numbering 4,319 fell
into the recidivist group because the records revealed that
in each case at least one term had been served in a penal
institution before the present probationary release had been
granted. Recorded first offenders accounted for 13,437 cases.
It is very likely that some recorded first offenders would
have been included in the recidivist group if the available
criminal records had been more nearly complete. Of the
recidivist group, 1,980 (46 percent) violated their probation
terms, whereas 4,804 (36 percent) of the first-offender group
had violations recorded against them. Thus, when com—
pared with first ofienders. a significantly higher percentage

339

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340

of the probationers whose records revealed previous incar-
cerations had violations recorded against them.

Of the 1,980 recidivists who were recorded as violators,
1,372 (32 percent) cases were revoked. On the other hand,
of the 4,804 first—offender violators, only 1,895 (14 percent)
were revoked. In other words, the percentage of revoca-
tions in the case of recidivists is about twice that for first
offenders. A further refinement of the revocation statistics
shows that 805 (19 percent) of the recidivists had proba-
tion revoked because of violations by new offenses, while
1,216 (9 percent) first offenders were accorded similar treat-
ment for offense violations. Revocation also resulted more
frequently for recidivists who violated conditions of release,
as compared with first ofi'enders.

The analysis of employment status during the period of
supervision and frequency of recorded violations and revo-
cations reveals even more pronounced differences. Only
4,014 cases could be classified either as totally unemployed
or as fully employed during the time spent on probation.
Of the 1,893 unemployed probationers, the records of 1,243
(66 percent) showed violations of the terms of release,
whereas out of 2,121 fully employed cases, only 535 (25
percent) were recorded as violators. The distribution of
violations for these two groups is interesting. The unem-
ployed offenders violated by new ofi'enses in 654 (35 percent)
cases and by conditions in 589 (31 percent) cases; fully
employed probationers violated by new offenses in 199 (9
percent) cases and by conditions in 336 (16 percent) cases.

There are significant differences in the frequency of revo-
cation for these two employment groups. Revocation was
ordered in 646 totally unemployed cases (34 percent); in
498 cases (26 percent) because of new—offense violations;
and in 148 cases (8 percent) for violations of conditions.
Fully employed probationers had their releases revoked in
165 cases (7 percent), divided about equally between offense
and condition violations. Therefore, the revocation rate
for unemployed offenders was almost four times that of
fully employed probationers. Moreover, a. much larger pro-
portion of the revocations were for offense violations in the
case of unemployed persons.

341

A total of 15,456 cases could be classified as either white
r Negro. However, the Negro group comprises only 2,272
ases, and these were concentrated in a few probation de-
artments. Hence the frequency of violation and revoca-
ion in the case of Negro probationers is attributable to these
ew departments, whereas white probationers are drawn
rom all of the 25 units. Negro violators totaled 1,062
ases (47 percent), and of these, 530 (23 percent) resulted

revocation; 376 (16 percent) for offense violations and
54 (7 percent) for violations of conditions. White proba-
‘on violators numbered 4,727 (36 percent), and of this
umber 2,253 (17 percent) had their probations revoked;
,438 (11 percent) for offense violations and 815 (6 percent)

r violations of conditions.

Probationers under 25 years of age formed a group of
,428 cases, and those 35 years of age and over numbered
,527. Forty percent, or 3,791 cases, in the group under

were recorded as violators. New offenses accounted for
,059 (22 percent) of these violations and the remaining
,732 violators in the younger age class, or 18 percent, vio-
ted the conditions of release. Probationers 35 years of age

over had recorded violations against them in 1,680 cases

7 percent), of which number 518 (11 percent) were offense
iolations and 1,162 (26 percent) were violations of condi-
ons. Even though the percentages of recorded violations

these two age groups are almost equal, the percentage of
'olation' by new ofi'enses for those under 25 years of age is

ice that of the older group.

Revocations were ordered in 1,998 cases (21 percent)
ithin the younger age group; 1,382 (14 percent) for new

enses and 616 (7 percent) for violations of conditions.
robationers 35 years of age and over had their releases
voked in 631 cases (14 percent), equally divided between

ense violations and condition violations. There is a
arked difference in the frequency of revocation for new

enses, between these two age groups. While precisely

e same percentage of cases was revoked for violation of
nditions, the percentage of younger individuals whose
obationary terms were revoked for offense violations was
uble that of the more mature group.

342

To summarize the data on frequency of revocation, it ap-
pears that (1) 19 percent, or about one-fifth of the 19,256
cases studied resulted in revocation; (2) almost one-third
of the recidivists, or 32 percent, had their probations re-
voked, whereas only 14 percent of the first offenders were
accorded similar treatment; (3) the probationary terms of
34 percent of the totally unemployed probationers were re-
voked, as contrasted to only 7 percent of the fully employed
probationers; (4) 23 percent of the Negro cases resulted
in revocation, compared to 17 percent for whites; (5) 21
percent of the probationers under 25 years of age had their
releases revoked, while 14 percent of those 35 years of age
and over were accorded like treatment.

TERMINATION AND DISCHARGE
W ho may grant dzscharge .——The philosophy of probation

self for a given period, supervision will be te1minated and
he will be released from liability for further penal treat-
ment. Thus the probation statutes in a majority of the
States contain provisions regulating the final termination of
the probationary status and discha1ge of the defendant

In the Federal system and in practically all States having
provisions on the subyect the cou1t is the proper agency to
giant a final dischargeiz” i This is true in all States except
Iowa, Montana, North Dakota, Washington and Wisconsin
In Iowa there is no statutory provision for discharge by
the court and since “parole” continues indefinitely, the only
method for obtaining final release from the possibility oi
revocation and imprisonment is through an executive grant
from the Governor which is analogous to a pardon. In
Washington one statute provides that sentence remains sus-
pended “until otherwise ordered” by the court.56 However,
the act creating the board of prison terms and paroles pro-
vides that supervision shall continue during the period oi
suspension or “until such sentence is terminated by the Gov-
ernor”.57 Final discharge, in practice, is granted by the

“'3 Wash. Rev. Stat. Ann. (Remington, 1932) § 2280.
‘7 Id. (Supp. 1936) § 10249-6.

343

Governor. In Montana and North Dakota the control of
probationers is vested in administrative bodies and they are
the proper authorities to terminate probation. The courts
in Wisconsin have power to grant discharge in misdemeanor
and nonsupport cases as well as in all cases in Milwaukee
County; the board of control has like power in all other
cases.

Although the statutes of some States are silent on this
base of the probation procedure, there seems to be no rea-
on to question the existence of power in the court to order

discharge. However, this function of the court is fre-
uently disregarded, or at best performed in a perfunctory
1anner. If, as is true in many States, the probation period
3 limited, it follows that when the power to revoke is lost
he probationer is in effect released, even in the absence of
ormal court action. Moreover, active supervision may
ease even before the expiration of the probation period, or
he probation officer may informally notify the probationer
hat he is discharged. While it may generally be true that,
s a legal matter, the court and not the officer is the proper
uthority to grant a discharge,58 there is little likelihood
hat objection would be made to an oral discharge by the
flicer or probation department. This seems to be the
ractice in some States.

When may dischav ge be granted. ——Except in the few ju-
sdictions where the statutes require that a certain mini-
um pe1iod be spent 011 probation, lthe court or other au-
ority may terminate the probationary status at any time

d discharge the defendant Of course, the assumption is
at a discharge will be granted prior to the expi1ation
f the probation period only upon a showing that such
tion is proper in the particular case. In eight States a
rmal discharge may not be granted until a certain period
as been spent on probation.59 The usual provision is that
1e minimum sentence imposed or which could have been

posed must expire before a discharge may be granted.
11 Kansas and Missouri a minimum period of 6 months in

58Roderick, Petitioner, 45 R. I. 153, 120 At]. 674 (1923).

59Idaho, Kansas, Minnesota, Missouri, Montana, North Dakota, Oregon,
isconsin.

                   

. . ;—
-—‘ -—

 

_. v -.- -

 

'E-PU‘I-V'V

345

ates to restore civil rights lost by reason of the conviction
for crime. Unless the expiration of the probation period
and the cessation of the power to revoke be regarded as
the equivalent of discharge, these statutory provisions seem
to place the defendant in a more favorable status than would
otherwise be the case.64

THE LEGAL STATUS OF PROBATIONERS

' What legal disabilities attach to probationers during the
probation period and after its expiration? This and kin-
dred questions have received but little attention in judicial
opinions or legal writings. In fact, it is impossible to state
with certainty just what civil rights are lost by convicts
generally. The statutes in the various States do not under-
take to define in any inclusive manner the effect of criminal
conviction upon civil and political status. Neither has any
serious attempt at critical research into this neglected field
of the law ever been made.

Since the statutory provisions in their present form are
not sufficiently definitive to settle the matter of the civil
and political status of convicted persons and since variations
in their wording and differences in judicial interpretation
have led to widely divergent results, this phase of the law
has become one of confusion and uncertainty. Where
courts have dealt with this matter the decision in the case
has generally depended on the court’s opinion as to whether
or not there had been a “conviction.” However, decisions
as to the meaning of “conviction” when one type of dis-
qualification is under consideration are not necessarily in-
dicative of the result that may be reached in a different
situation. So far as the problem of probationers is con-
cerned, there seems to be a dearth of authority on the ques-
tion of whether there has been a conviction at all.

In general, it appears that where personal disabilities or
disqualifications are concerned, courts will demand that
there be something more than a mere finding of guilt. In
Other words, the trial court must finally have adjudicated
the matter by passing judgment, i. e., sentence.65 Perhaps

64 See next section for a consideration of the legal status of probationers.
“See 13 Corpus Juris 909; 9 Ruling Case Law 1042; Note (1930) 30 C01.
L. Rev. 1045. 1046.

346

the leading case on the subject is People v. Fabian,“ decided
by the New York Court of Appeals“ in 1908. In that case
the defendant was indicted for illegally voting at an election
when he was not qualified. The disqualification relied upon
was the fact that he had been convicted of a felony. The
applicable statute provided that “no person who has been
convicted of a felony shall have the right to register for or
vote at any election unless he shall have been pardoned and
restored to citizenship.” As a matter of fact the defendant
had been found guilty of a felony, but imposition of sen-
tence had been suspended. The court decided that the stat-
ute authorized disfranchisement “only upon a conviction in
the more comprehensive sense of that term—that is to say,
upon a judgment based on a verdict of guilty * * *.”
The net result, therefore, was that a finding of guilt fol-
lowed by suspension of the imposition of sentence did not
deprive the defendant of the right to vote.67

Thus the courts have made the judgment and sentence of
the trial court upon plea or verdict of guilty the decisive
factor in determining the question of “conviction.” Evi-
dently the general feeling has been that prior to pronounce-
ment of judgment the trial court may set aside the verdict
or grant a new trial which may result in acquittal. There-
fore, when faced with the question of disqualification, the
appellate courts are likely to take the view that unless sen—
tence had actually been imposed, it would be premature to
treat the person as though guilt and its consequences were
finally established.

The attempt to give any categorical answer to the ques—
tion is further complicated by the differences in procedure

6“ 192 N. Y. 443. 85 N. E. 672 (1908).

“Of. State v. Houston, 103 N. C. 383, 9 S. E. 699 (1889) where Smith,
C. J., pointed out that if judgment on the verdict were not required in order
for there to be a “conviction,” an anomalous result would occur in that “the
severe and heavier punishment of disfranchisement" would be inflicted while
at the same time the conduct of the accused was deemed such as not to
require “the present vindication of the violated law” through imprisonment.

Statutory and constitutional provisions regulating the qualifications of
electors generally provide that one who has been convicted of a felony or
infamous crime cannot exercise the privilege of voting unless pardoned or
restored to citizenship. See, 0. g., Ariz. Const. art. VII, § 2; Ark. Dig. Stat.
(1937) § 4692; Cal. Const. art. II, § 1; Idaho Code Ann. (1932) § 17—310;
111. Rev. Stat. (Smith-Hurd, 1937) ch. 46, § 72. Utah Const. art. IV excludes
only those convicted of treason or crime against the elective franchise.

347

which the probation statutes of the various States have
created. In some States probation can be granted only
if imposition of sentence has been suspended.68 In others
sentence must be imposed and its execution suspended,69
while the majority of statutes permit trial courts to follow
either procedure.70 The purpose of probationary release is
the same in either case; that is, mitigating circumstances
are present» which persuade the court that it will be to the
advantage of the defendant and of society that supervised
release be substituted for incarceration.

Yet an application of the rule of People v. Fabian would
require more severe treatment to be accorded probationers
released under suspended execution of sentence, than those
released under suspended imposition of sentence. There is
no rational. basis for such a distinction in treatment. The
circumstance that one method rather than the other was
followed was dictated not by the comparative guilt of of-
fenders but by the wording of the statute in question or
the idiosyncrasy of the particular judge. Some judges feel
that imposition should be suspended so that, in the event
of revocation, the court may at that time be free to mete
out a proper sentence; others are of the opinion that the
probationer is more likely to respect the terms of his release
if a sentence is imposed before probation is granted. In
either event, there is little practical diiference so far as the
probationer and the public are concerned. Yet, if the sug-
gested reasoning is applied, a result is reached which does
not disqualify probationers released after suspension of
imposition of sentence but does disqualify those released by
way of suspension of execution of sentence.

Seen in this light the reasoning of the Fabian ease seems
purely technical and altogether unrealistic. Although the
proceeding is not technically complete when the court sus-

68Arkansas, Delaware, Illinois, Kentucky, Nebraska, Ohio, Pennsylvania,
West Virginia.

”Connecticut, Georgia (probation is a sentence; execution of imprisonment
is suspended), Minnesota, Montana, North Dakota, Washington.

7° Federal, Arizona, California, Colorado, District of Columbia, Idaho, In-
diana, Iowa, Kansas, Maine, Maryland (in Baltimore either imposition or
execution of sentence may be suspended; outside Baltimore, Maryland courts
may suspend only imposition of sentence), Massachusetts, Michigan, New
Jersey, New York, North Carolina, Oregon, Rhode Island, Tennessee, Utah,
Vermont, Virginia, Wisconsin.

348

pends the imposition of sentence and grants probation,
yet as a practical matter the court is satisfied that the de-
fendant is guilty but deems it advisable to allow probation
rather than to impose a sentence of imprisonment. Ob-
viously, if the court were of the opinion that the verdict of
guilty was unfounded or that errors had been committed
in the trial of the case, the court would entertain and grant
a motion to set aside the verdict or for a new trial.

Generally, the court’s action in suspending sentence is
not motivated by any doubt or misgiving as to the certainty
of the defendant’s guilt but by the hope of rehabilitation
which the convicted person apparently presents. In fact,
by accepting a plea or verdict of guilty and granting a peti-
tion for probation, the court, at least inferentially, is mak-
ing manifest its belief in the defendant’s just conviction.
The Illinois Supreme Court expressed this view in the fol-
lowing manner: “When no issue remains to be determined,
and there is nothing to be done except to pass sentence,
there is no sound reason for holding that the prisoner has
not been convicted. * * * The fact that the court de-
termined that there was reasonable ground to expect that
the defendant might be reformed and that the interests of
society would be best subserved by disciplining the defend-
ant on probation rather than in the reformatory or peni-
tentary would not in any way affect the previous determina-
tion of the court that the defendant was guilty. * * *
The release on probation does not in any wise set aside the
conviction of the prisoner.” “’1

Following this opinion the Illinois attorney general ruled
that a person released on probation must be pardoned be-
fore he can exercise the rights of citizenship.72 Although
no case was found involving the forfeiture of the electoral
privilege following suspension of execution of sentence, the
possibility of such a result is suggested by cases arising
under habitual criminal statutes. Thus a New York court
decided that a defendant was not subject to punishment as

71 People v. Andrae, 295 I11. 445, 455, 129 N. E. 178, 182 (1920). The court
held that a prior probationary release following the suspension of imposition of
sentence amounted to a conviction so that the record thereof could be intro«
duced to question the credibility of the accused as a witness.

"Opinions Att’y Gen. (1933) 277.

349

a fourth offender when two of the prior “convictions” relied
upon had resulted in the indictments being placed “on file”
following pleas of guilty.73 However, another court in the
same State later held that a. probationary release following
suspension of execution of sentence was a prior conviction
within the meaning of the fourth-offender law.“ More re-
cently, the New York attorney general stated that in his
opinion a person who has completed the probation period
imposed following suspension of execution of sentence, must
apply to the executive for restitution of citizenship in order
to exercise the elective franchise.75

There seems to be no sound practical reason why the
political status of some. probationers should be different
from that of others, solely by reason of the presence or ab-
sence of a formal judgment by the court. While it may
be desirable to avoid a result which disqualifies probation-
ers, it would seem that the disqualifying factor should be
something more than the rather fortuitous circumstance of
a judgment.

In a number of States there are statutory provisions to
the effect that a sentence of imprisonment in a State prison
for any term less than life suspends all civil rights of the
person so sentenced during such imprisonment."8 None of
these statutes undertake to define the term “civil rights,”
but in some instances certain rights such as the power to
sell and convey property are expressly exempted from
suspension.77

It seems fairly clear that these statutes apply only to
persons “sentenced” and do not operate to suspend any civil
rights of probationers who have been released by way of

73 People ea: rel. Marcley v. Lawes, 254 N. Y. 249, 172 N. E. 487 (1930);
People v. Schaller, 224 App. Div. 3. 229 N. Y. Supp. 492 (lst Dep’t, 1928).

74 People v. Jennings, 135 Misc. 809, 240 N. Y. Supp. 91 (Co. Ct., 1930).

'75 Opinions Att’y Gen. (1933) 138.

7° See, 9. g.. Ariz Rev. Code (Struckmeyer, 1928) § 4903; Cal. Pen. Code
(Deering. 1937) § 6731; Idaho Code Ann. (1932) § 17—310: Utah Rev. Stat.
Ann. (1933) § 103—1—35. No consideration is given here to civil death statutes
which apply in case of sentence to life imprisonment. For an exoellent
treatment of this “medieval fiction in a modern world,” see Legis. (1937) 50
Harv. L. Rev. 968.

7“ Strictly speaking, it is questionable whether the term “civil rights” includes
the electoral privilege. The right to vote has been termed a political. and not
a civil right. State v. Collins, 69 Wash. 268, 124 Pac. 903 (1912); see also
1 Words & Phrases (2d series) 719.

350

suspension of imposition of sentence.78 There is a conflict
of authority as to whether the statutes operate to suspend
the civil rights of persons who have been sentenced but
have not been imprisoned because execution of sentence has
been suspended. The conflict arises because the statutes
are subject to various interpretations, depending upon
whether emphasis is placed upon “sentence” or “imprison-
ment.” The Kansas 79 and Missouri 8° courts have held that
civil rights are suspended only during actual imprisonment
in the State prison; therefore, a person at liberty under
suspended execution of sentence may dispose of his prop-
erty. On the other hand, the attorneys general of Oregon 81
and Wisconsin 82 have ruled that suspension of execution of
sentence does not stay the operation of the statute. In
other words, the fact of sentence automatically suspends
civil rights.

It is questionable whether these statutes should be ap-
plied to deprive persons released on suspended sentence of
civil rights. A fair interpretation seems to be that dis-
ability follows upon imprisonment. Since the general rule
is that time spent on probation does not reduce the original
sentence,83 it follows that, in the event of revocation, ad-
herence to the conclusion reached by the Oregon and Wis-
consin attorneys general would result in the suspension of
civil rights for a longer period than the term of imprison-
ment. These statutes were enacted long before the adoption
of probation legislation and at a time when imprisonment
was practically the only treatment for crime. They are
scarcely adapted to the situation created by suspended sen-
tence and probation laws. Probationers can hardly be
classed with inmates of penal institutions; at least the

73 The Wisconsin attorney general, however. has ruled that probationers who
have been convicted of felony, whether imposition or execution of sentence has
been suspended, do not enjoy civil rights during the probation period or after
final discharge; restoration of civil rights must be granted by the Governor.
5 Opinions Att’y Gcn. (1916) 107. To the same effect is the opinion or the
Illinois attorney general. Opinions Att’y Gen. (1933) 277.

'19 Harmon v. Bowers, 78 Kan. 135, 96 Pac. 51 (1908); Handrub v. Griffin,
127 Kan. 736, 275 Pac. 196 (1929).

80Murphy v. Barron, 275 M0. 282, 205 S. W. 49 (1918); Ward v. Morton,
294 Mo. 408, 242 S. W. 966 (1922).

81 Opinions Att’y Gen. (1932—34) 64.

82 5 Opinions Att’y Gen. (1916) 107.

’53 See ante pp. 334—335.

351

philosophy of probation is in some degree posited upon the
premise that incarceration is not desirable for certain of-
fenders. To impose the same civil and political disabilities
upon probationers as upon convicts actually imprisoned
seems to contradict the theory of probation.

Besides the real possibility of loss of civil and political
rights, persons released on probation are denied other priv-
ileges. It is common knowledge that many fields of em-
ployment are closed to persons who have been found guilty
of crime. Licensing requirements applicable to certain pro-
fessions operate to exclude anyone with a record of known
criminality. The public service is, on the whole, closed to
the individual who has been convicted, and the same holds
true for many fields of private employment. Generally,
however, discrimination is not directed against probationers
and parolees as such, but includes all who have been
adjudged guilty of crime.

In view of the difficulties encountered by probationers in
securing suitable employment, it is regrettable that an act
of Congress, designed, in part, “for the purpose of relieving
the acute condition of widespread distress and unemploy-
ment now existing in the United States,” should have been
so phrased as to have occasioned the Attorney General to
render an oflicial opinion barring persons on probation or
on parole from eligibility for enrollment in the Civilian
Conservation Corps. The original act authorizing the cre-
ation of the Corps provided that “in employing citizens for
the purposes of this act no discrimination shall be made on
account of race, color, or creed; and no person under con-
viction for crime and serving sentence therefor shall be em-
ployed under the provisions of this Act.” 8‘ The opinion 85
held that probationers, as well as parolees, came within the
statutory inhibition. The net result, therefore, was to ex-
clude from enrollment the offender “whom the judge thinks
to be a brand who can be plucked from the burning,” 8°
while the more hardened offender who had been denied pro-
bation and had served a term in prison was eligible to enroll

in the C. C. C.

8448 Stat. 22, 23 (1933).
85 Opinion of March 6, 1936, released for publication April, 7, 1938.
85 United States v. Murray, 275 U. S. 347, 358 (1928).

352

As has already been demonstrated, it is questionable
whether all probationers have been “convicted” in a tech-
nical sense; moreover, it is the general rule that time spent
on probation is not credited upon the sentence to be served
in the event of revocation. Thus only by giving the phrases
“under conviction for crime and serving sentence therefor”
a meaning broader than customarily given, could the inhibi-
tory language in the statute be applied to probationers. It
is unfortunate that probationers were excluded, while persons
who had finished a term in prison and were not under super-
vision, were, at least from a legal standpoint, eligible for
enrollment in the camps.

However, when the Civilian Conservation Corps was form-
ally established by statute in 1937, the provision fixing the
eligibility qualifications of enrollees gave the Director of the
Corps power to “exclude from enrollment such classes of
persons as he may consider detrimental to the well-being or
welfare of the Corps, except that no person shall be excluded
on account of race, color, or creed.” 87 Hence the statutory
restriction upon persons convicted of crime and serving
sentence therefor, which prompted the Attorney General’s
opinion discussed above, is no longer operative. Instead,
the Director of the Corps may, if he sees fit, permit proba-
tioners to enroll in the Corps.

Probationers occupy a position between that of the gen-
eral citizenry and inmates of penal institutions. However,
their exact legal status is not at all clear in the present state
of the law. If disabilities do attach to probationers, are
they removed after the expiration of the probation period,
or is a pardon restoring civil rights necessary in order that
the person may thereafter enjoy the ordinary privileges and
rights of citizenship? The answer to this and other ques-
tions of the same nature must wait for a more definitive de-
velopment of the law. Yet it seems desirable that proba—
tioners should always be carefully instructed as to their
civil status from the very outset of supervision. Otherwise
misunderstandings are likely to arise which will have an
unfortunate effect upon the attitude of the probationer. Un-
fortunately, in the present confusion of the law not even
judges are qualified to offer such instruction.

"50 Stat. 322 (1937).

 

sh
,, ,

W"

CHAPTER X

SOME FACTORS ASSOCIATED WITH OUTCOME
ON PROBATION

INTRODUCTION

It is the purpose of this chapter to analyze the relation-
ships of selected characteristics of probationers and outcome
on probation. The analyses are based upon facts disclosed
by the histories of 19,171 probation cases taken from the
files of 24 probation units in 16 States and the District of
Columbia.1 The cases considered comprise those in Which
the probation period was terminated, either by revocation
or discharge, within the 3-year period from January 1, 1933
to December 31, 1935.2

 

1 The following units were employed in making the analyses:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Name of unit: Number of cases
Arizona, Maricopa County 335
California, Los Angeles _ 3,567
Colorado, Denver 268
District of Columbia 959
Illinois, Cook County 1, 578
Kansas: Kansas City, Topeka, Wichita 313
Minnesota, Hennepin County 328
Minnesota. Ramsey County 292
Missouri, St. Louis 303
Maryland, Baltimore 125
Massachusetts, Springfield 385
Massachusetts, Suffolk County 598
New York, Erie County 884
New York City court of general sessions 415
New York, Kings County ‘ 1, 456
New Jersey, Essex County 962
Ohio, Hamilton County 361
Ohio, Cuyahoga County 826
Pennsylvania, Allegheny County 1, 924-
Pennsylvania, Berks County 301
Rhode Island 263
Vermont 439
Wisconsin State Board of Control 1, 964
Wisconsin, Milwaukee County 825

Total 19, 171

 

'For some probation units, not all terminated cases for the 3-year period
were included. However, in such instances the sample used was selected
purely at random and there is no reason to believe that the sample used is not
representative.

(353)

354

In order to obtain a cross—section picture of probation
practices and techniques throughout the country, it was
necessary to choose probation departments from different
sections of the United States. However, several additional
factors influenced the selection of the 24 units. Since the
study is concerned with the outcome of adult probationers,
it was necessary to select departments which handled adults,
some of whose supervision periods were terminated, both
by reyiocation and discharge, during the 3-year period under
consideration. Moreover, the records of the probation de-
partments had to be sufficiently complete to guarantee that
statistical results would be significant.

Since each probation department is essentially an inde—
pendent agency controlled by separate personnel and since
certain local practices might have special import, the analy-
Ses were made on the basis of each unit as an entity instead
of on the basis of the entire group as a single unit. By re-
taining the identity of each unit, the significant relation-
ships that were found to exist despite diflerences in admin-
istrative practices have even greater weight.

The number of cases considered for each of these units
range from 125 in Baltimore, Md., to 3,567 cases in Los
Angeles, Calif. lVithin these extremes the number of cases
for the separate units varies widely. Four other units in
addition to the Los Angeles department are represented by
more than 1,000 cases.

Limitations of time, the suitability to objective treat-
ment of the factors selected, and the emphasis generally
placed upon specific characteristics prompted the selection
of the six factors here considered. These six factors are:
Race and nativity, age, marital status and number of de-
pendents, present oifense, recidivism, and employment on
probation.3

3The six factors analyzed in this report represent only a small proportion
of the number of items for which some information was available in schedule
form. The probation schedule provides information for 109 factors dealing
with the parental background, personal history, criminal history, trial history,
and probation history of the probationer. Because of the curtailment of Survey
funds and the attendant reduction in personnel and mechanical equipment, it
was necessary to resort to hand tabulation in order to make the analyses in
this report. For this reason, it was estimated that only 6 of the 109 items

355

The importance here attached to any of these characteris-
tics depends not only on relationships found within. one par-
ticular unit but also upon the regular recurrence of such,
relationships in the other units. The significance which can.
be attached to any particular factor is increased when the
relationships which it bears to outcome on. probation appear
consistently in nearly all departments. This test of con-
sistency, or universality, is important, because its use makes
it possible to arrive at results which are not subject to some
of the criticisms that have been leveled at similar studies.

The criticisms which have been made against other studies
depending on information gathered from official records are
that (1) case history data are inadequate; (2) the available
information from official records is unreliable; (3) the in-
formation in the records deals almost entirely with static
elements, whereas the more dynamic elements are not re-
corded, and (4) proper consideration is not given to the
interrelationships of factors. These criticisms assume a
degree of validity when results depend upon data derived
from a single probation department. In this study, how-
ever, cases from a large number of units were utilized. The
recurrence of relationships in a large number of units off-
sets may of the criticisms applicable to smaller studies.
Specifically, if it is found that a characteristic is signifi-

listed on the schedules could be treated within the period allotted for the
probation analyses.

Of importance in the choice of the six items was the extent to which all the
units revealed information on each. For this purpose a sampling procedure
was used to determine which items were recorded for the majority of units.
Another consideration was the importance attached by probation authorities to
certain factors such as recidivism, employment, and types of offenses com-
mitted. Finally, there were the limitations inherent in hand tabulation werk.
Therefore, items with many categories were eliminated because the small staff
and limitations of time prevented the detailed analyses which would have been
involved.

This rough method of selecting factors for analyses necessarily eliminated
many important items which may have a significant bearing on probation
outcome. For example, such important factors as the probationer’s family
relationships; the mobility of the probationer prior to his conviction; his age
at leaving school; his usual occupation; the extent of his unemployment prior
to probationary treatment; his antisocial habits; his attitude toward his
present offense; and his plea upon arraignment are some of the other factors
in regard to which data were collected. Also, many items of importance in
probation administration, such as the probation oflicers’ evaluation of proba-
tionary treatment and the type of presentence investigation, could have been
analyzed if additional time and money had been available.

356

cantly associated with outcome on probation in all or nearly
all of the units studied, despite differences in administrative
practices and despite the fact that probation has been in
operation for varying lengths of time in the different units,
then there is little doubt that the particular characteristic
has an important bearing upon probation outcome.

The definition of each of the categories for the different
items used will be set forth in the sections in which these
items are discussed. Since the two terms “failures” and
“suCcesses,” however, are basic in the analyses of all the
items which follow, they must be precisely defined in order
that the results of the analyses relating the various charac-
teristics of the probationer to outcome on probation may
have validity.

- A case was considered a failure on probation whenever
the oificial records disclosed that the probationer had vio-
lated any of the terms of release. The violation may have
been either a breach of conditions of probation or a viola-
tion by committing a new offense on probation. The pro-
bationer was considered a violator whether or not his pro-
bation was revoked. This definition of failure, which does
not differentiate between condition violations and offense
violations was used because the primary objective was to
discover the essential association between the various charac-
teristics of probationers and conduct on probation, rather
than to analyze the revocation practices of the various de-
partments. However, a separate analysis was made to de-
termine Whether changed relationships would result if the
definition of failure were limited to new—offense violations
on probation. Since both violations of conditions and viola-
tions by new offenses are basic in the interpretation of the
results of the analyses which follow, both terms were given
careful consideration.

A case was considered a success on probation when the
official records revealed that the probationer had not vio-
lated the terms of his release, either by violating the con-
ditions or by committing a new oiiense during the proba-
tion period.4 The term.“success,” as here used, means only

4 However. when the definition of failures is limited to violations by offense,
the definition of successes automatically is broadened to include probationers
whose records showed violations of conditions.

 

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357

that recorded violations were net found; it does not im-
ply that the probationer was rehabilitated, since absence of
violation does not necessarily indicate such adjustment. It
is probable that some of the so-called “successes” violated
while on probation but the violations were not recorded.
It must be emphasized that this study is strictly limited to
information recorded in probation department records.

It is a general practice to include violation rates in
studies of this type. Significant interrelationships between
selected characteristics and outcome on probation may be
found whether a probation unit has a high or a low viola-
tion rate; hence, general violation rates are irrelevant for
the purposes of the analyses which follow. Moreover, com-
parative statistics on violations invariably lead to misin-
terpretations. It has been the practice of some recognized
authorities to use violation statistics for the purpose of
evaluating the efficiency of probation departments. T here-
fore, publication of comparative violation statistics for the
24 probation units covered by this study would be inad-
visable because it might lead to many invalid comparisons.
It is entirely possible that a higher violation rate may be
indicative of a better probation system, due to a variety of
factors such as longer probation periods and closer super-
vision throughout the probation period. For these rea-
sons, violation rates were omitted from this study.

Symbols are used to indicate whether any statistically
significant relationship exists between a particular charac-
teristic and outcome on probation. The three terms, “neu-

tral,” “favorable,” and “unfavorable” are used to depict the

type of relationship between a given factor and out-

 

come on probation. In the tables which follow, these terms

are represented by the symbols (N), (F), and (U), re-
spectively. Since these terms and symbols are used in a
special statistical sense, it is necessary to explain their
meaning more fully.

On the basis of the statistical test employed the term
“neutral” indicates that the particular characteristic was
not significantly associated with outcome on probation. The
term “favorable” indicates that out of a group of proba-

358 .

tioners possessing a specific characteristic a significantly
large proportion were not recorded as violators during their
probation periods. Conversely, the term “unfavorable” in-
dicates that out of a group of probationers possessing a
certain characteristic, a significantly large proportion were
recorded as violators of probation.

In other words, the statistical procedure indicates
whether a given factor, which is common to a certain group
of probationers, was significantly associated with the con-
duct of these probationers during the probation period. Or
stated another way, the technique employed sought an an-
swer to this question: What importance, if any, can be at-
tached to the fact that a. significantly large proportion of
probationers with a common characteristic succeeded or
failed during the supervision period?

A statistical test was used to determine whether there is
any indication that a relationship was or was not signifi-
cant.5 On the basis of the criterion of significance ac-

'’In testing for the significance of the six factors with outcome on proba-
tion, the “chi-square” test, which was originated by Karl Pearson and de-
veloped by R. A. Fisher. was used.

To clarify the meaning 01‘ this test as used in this report, consider sample
table A in which 1,000 cases are classified according to race and outcome on
probation.

TABLE A.—0bsev'ved values

 

 

 

Race Si iccess Failure Total
White ________________________________________________ 475 275 750
Negro ................................................ 125 125 250
Total ___________________________________________ 600 400 1, 030

 

 

 

 

Race is classified into white and negro, and probation outcome into success
and failure. The problem is to ascertain whether the data in table A reveal
some indication that race is significantly associated with probation outcome.

It will be noticed from table A that 600 of the total 1,000 cases, or 60
percent, succeeded on probation. If race had no effect on probation outcome,
then it would be expected that approximately 60 percent of both the whites
and Negroes would succeed on probation; that is, 60 percent of the 750 whites
(450 cases) and 60 percent of the 250 Negroes (150 cases). In like manner,
it would be expected that approximately 40 percent of the 750 whites (300
cases) and 40 percent of the 250 Negroes (100 cases) would fail on proba-
tion. The 450 white successes, 300 white failures, 150 Negro successes and
100 Negro failures are called the expected values, since they are the values
that would have occurred if Negro and white successes and failures were
entirely independent. These expected values are shown in table B.

'V‘v-

359

cepted and applied in this report, a relationship which may
be attributable to chance is not considered as either “favor-

TABLE B.-—E’wpected value-s

 

 

 

 

 

 

 

 

 

A vfi—wr—vr

Race Success Failure Total
White ................................................ 450 300 750
Negro ................................................ 150 100 250
Total .................. 600 400 1, 000
The difference between these expected values and the observed values in
table A is a rough indicator of the departure from independence. A large

difference between the observed values and the expected values indicates a wide
departure from the values expected if race had no effect on probation outcome.
Further, the absolute differences are the same, and in this example the differ—
ence equals 25. Although this value, 25, would be a rough indicator of the
association between race and outcome, it is subject to some limitations. A
more convenient and accurate measure called “chi-square” is based on this
difierence and the expected values found in table B.
Chi-square as used in this example is obtained by computing

1 1 1 1
(25).1 [fi+fi+m+m]

which is equal to 13.9. It can be shown that the more closely the observed
values agree with those expected, the smaller will be the chi-square, and the
wider the discrepancy between the expected and observed values, the larger
will be the chi-square. Thus, for table A, the larger the chi-square the greater
the probability that Negroes and whites, and successes and failures are not
independent, and therefore, there is indication that being white or Negro is
associated with success or failure on probation.

The next question is how large should the chi-square be before whites and
Negroes are to be considered significantly associated with success or failure
on probation. It has been approximately determined what proportion of
samples of all possible samples with the same marginal frequencies and the
same number of cells will have a higher chi-square value than any given
chi-square value. Thus, for table A the proportion of samples which will have
a larger value of chi-square than 13.9 (the chi-square value found for table
A) is less than one out of a hundred.

If the probability is that an observed value of chi-square will be exceeded
in only 1 out of 100 cases, it is assumed that the observed frequencies depart
significantly from proportionality. In such circumstances, it is very unlikely
that the frequencies are independent, and there is some indication that
Negroes and whites are associated with success or failure on probation. In
this report, when less than 1 out of 20 samples will exceed a computed
chi-square value, a factor is considered significant. Since less than 1 out of
20 samples will exceed the observed value of chi-square for table A, Negroes
and whites are considered significantly associated with success and failure
on probation.

At best, the chi-square test as applied to the number of cases is only an
approximate one. As an approximation, it is very inaccurate for small fre-
quencies, but a good approximation for large frequencies. Therefore, in this
report chi-squares were not computed for categories of less than 10 cases.

The method used in the foregoing example has been used only to illustrate
the concepts underlying the use of the chi-square test. Essentially, the above
treatment is based on a much more rigorous treatment given in Fisher, Sta-
tistical Methods for Research Workers (4th ed. 1932) 87—105. In the analyses
which follow, many short-cut procedures have been used in calculating the
chi-squares.

73115—39—v0L. II 24

 

360

able” or “unfavorable” but is termed “neutral” and no
significance is attached to it. When the probability that
a relationship may be attributable to chance is less than 1
out of 20,6 then the relationship is considered significant.
The significant relationships were designated as either
“favorable” or “unfavorable,” depending upon whether the
number of probationers who violated was disproportionately
smaller or larger than the number who did not violate.7

A further analysis was made for age and steadiness of
employment in order to determine whether a difference in
degree affected outcome on probation. For example, it is of
interest to ascertain whether an increase in age is accom-
panied by a corresponding increase or decrease in violations
on probation. The statistical procedure utilized for this
purpose may be termed an “analysis by rank.” If it is
found that with an increase in age there seems to be a

his a matter of fact, in nearly all instances the statistical test indicated
that the probability that the relationship may be attributed to chance was less
than one in a hundred.

7To illustrate the statistical method used in arriving at “favorable,”
“neutral,” and “unfavorable” relationships, the following hypothetical table
has been constructed.

 

 

 

 

Percent Percent dis- .
Factor Total Success Failure success tribution of Rglllaitipn-
total total p
X ........................ 900 550 350 61 90 F
Y 50 18 32 36 5 U
Z ......................... 50 32 18 64 5 N
Total _______________ 1, 000 600 400 60 100 ..........

 

 

 

 

 

 

 

This table shows that 61 percent in the X group, 36 percent in the Y group,
and 64 percent in the Z group did not violate during the probation period;
hence, these cases are termed “successes” for the purposes of this study.
Application of the statistical test discloses that 61 percent based on 900 cases
is significantly higher than the rate for the remaining cases and is, therefore,
considered favorable (F). On the other hand, the 64 percent in the Z group,
based on 50 cases, is not significantly higher than the percentage for the
other cases and is, therefore, labeled neutral (N). The 50 cases in the Z
group are a comparatively small number and they constitute only 5 percent
of the total number of cases considered. The lack of significance. therefore,
may be due to the small number of cases. An unfavorable (U) relationship
for the Y group is found, however, despite the small number of cases. This
is true because the difference between 36 percent and the rate for all the
other cases is sufficiently large to assume statistical significance.

In other words, the smaller the comparative number of cases in any cate
gory, the greater must be the difference in the percentages for that category
and the remaining cases in the entire group in order that the category may
be considered to have a significant relationship with outcome on probation.

 

‘P‘.-. Vv ""V I v

 

 

361

falling off in the percentage of violations, then, by rank-
ing the age groups in order of relative decrease in violations,
it is possible to discover the trend of the data. Thus by
assigning to the age group with the highest percentage of
violations the rank of one, and the second highest group the
rank of two, and so forth, a distinct decrease in percentage
of violations is observed. By applying the “test of signifi-
cance” to these ranks it is possible to determine whether the
difference has any significance.

RACE AND NATIVITY

In this section an analysis is made of the outcome on
probation of whites as compared with Negroes. For the
other minority races the data were insufficient, in most
cases, to warrant statistical treatment. There is also in-
cluded here a comparison of the outcome on probation of
foreign-born whites with that of native-born whites.

The race of the subject’s father and mother was used,
whenever possible, to determine the race of the subject.
Whenever this could not be found in the official records, the
race of the subject was determined on the basis of other
available information pertinent to the subject’s race. The
categories used in the tables on race are: White, Negro, and
other. A case was cataloged as “white” when the evidence
revealed that the race of the father and mother (either or
both, or in the absence of such information, the subject’s
own race) was designated as “white.” Persons showing one-
eighth African blood or more were classified as “Negro.”~
All other racial groups were classified in the “other” cate-
gory because the number of such cases was too small to
warrant further subclassification.

In determining the nativity of the subject, all persons
born in the United States or within its territorial posses-
sions were classified as native born. Furthermore, persons

born in foreign countries of parents, one or both of whom
were American citizens at the time of their birth, were
considered native born, provided the subject returned to
the United States prior to his twenty—first birthday or had
indicated his intention to be a citizen of this country. Per-

362

sons born in foreign countries of parents not American
citizens were classified as foreign born.

The statistical method used in arriving at the relation-
ships between a particular characteristic and outcome on
probation was explained in the introduction to this chapter.
However, before entering upon the treatment of the rela-
tionships between race and nativity and outcome on proba-
tion, the following sample table is given to clarify both the
meaning of the terms and the technique involved in deter-
mining the significance or nonsignificance of relationships.

 

 

 

Number of
Percent Number of Percent .
Race fig gag: of total violators of total Reslation-
cesses) cases (failures) cases p
White .................. 600 480 80 120 20 F
Negro .................. 330 215 65 115 35 U
Other ................... 70 50 7O 20 30 N
Total ............. l, 000 745 74. 5 255 25. 5

 

 

 

 

 

 

 

 

This sample table shows that the percentages of proba-
tioners who did not violate during the probation period
were 80 for white persons, 65 for Negroes, and 70 for other
racial groups. The statistical test of significance discloses
that a success rate of 80 percent, based on 600 cases, is signifi-
cantly higher than the rate for the remaining 400 cases.
Hence, the outcome of the “white” group is considered fa-
vorable (F). However, a success rate of 65 percent based
on 330 cases is significantly lower than the rate for the re-
maining 670 cases and therefore the outcome of the “Negro”
group is unfavorable (U). The “other” group had a success
rate of 70 percent, but the statistical test shows that this
percentage, based on only 7 0 cases, is not significantly differ-
ent from the .rate for the remaining 930 cases. Therefore
the relationship of race and outcome is neutral (N) for the
“other” group.

The analysis of the relationships between race and nativity
and outcome on probation was based on 15,022 cases in 18
probation departments. Table I shows the proportion of
cases which fell in each of the categories of race and nativity
for the 18 units. It will be seen, as is to be expected, that
whites make up the largest proportion of the group studied.

 

_ _, . 14.3,.

363

In some of these units, however, Negroes constitute a large
proportion of the number of cases considered. In the Dis-
trict of Columbia, Baltimore, Maryland, and Hamilton
County, Ohio, more than one-third of the cases considered
were negroes.

TABLE I.—Percen.tage distribution by race and nativity

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Percentage distribution
“’hite
. . Total
Probation unit cases Un
{-18- F or- Un- Negro Other known
we elgn
born born known
Arizona, Maricopa County ........ 335 37 2 26 7 27 1
California, Los Angeles ............ 3, 567 68 8 1 5 17 1
Colorado, Denver .................. 268 74 4 5 5 8 4
District of Columbia _______________ 959 46 1 5 48 (1) (1)
Illinois, Cook County .............. 1, 573 79 1 10 9 (I) 1
Kansas ____________________________ ' 3 47 (1) 25 23 0) 5
Missouri, St. Louis ________________ 303 72 (x) 2 17 (l) 9
Maryland, Baltimore .............. 125 53 3 6 38 (1) 0)
M assachusetts, Springfield ......... 385 72 3 19 5 (1) 1
Massachusetts, Suffolk County---- 593 73 12 8 6 1 (1)
New York, Erie County ___________ 384 72 16 3 6 1 2
New York City, court of general
sessions __________________________ 415 61 2O 1 17 1 (1)
New York, Kings County _________ 1, 456 68 16 1 14 (1) 1
New Jersey, Essex County----___-. 962 59 14 1 25 (l) 1
Ohio, Hamilton County ____________ 361 56 3 3 37 0)
Ohio, Cuyahoga County ........... 826 66 9 4 20 1 1
Pennsylvania, Allegheny County"! 1. 924 57 1 25 15 (1) 2
Rhode Island ______________________ . 263 74 3 5 8 (I) 10
Total ........................ i 15, 022 ............................................

 

 

 

1 Less than 1 percent.

In six other probation units the percentage of unknowns
for race was so large, or the percentage of the minority
races was so small, that these units have been omitted from
the analysis. These six units are Hennepin County and
Ramsey County, Minnesota; Berks County, Pennsylvania;
Vermont; Wisconsin State Board of Control and Milwau-
kee, Wisconsin. In the 18 units analyzed the unknown
group for race was comparatively small. In fact, when the
six units were eliminated, the unknowns constituted only
about 1 percent of the total cases considered. Therefore, it
was considered unnecessary to make a special analysis of the
unknowns.

Table II shows the results of the analysis of the data in
table I. In all but three departments the numbers of cases

364

in the “other” racial group are insufficient to arrive at sig-
nificant relationships. A cursoryg glance at table II might
indicate that there 1s no reason to believe that Negroes uni-
versally violated probation more often than whites. How-
ever, a more intensive study shows that whenever a statis-
tically significant result is shown by the analysis, the result
is always favorable for whites and, with only one excep-
tion, unfavorable for Negroes.

TABLE II.—O-u.tcome on probation, by races

 

 

 

 

 

 

Relationship
Probation unit Total
cases
White Negro Other Unknown

Arizona, Maricopa County ............ 335 N F N 0)
California. Los Angeles 3, 567 F U U N
Colorado. Denver ..................... 268 F N N (‘)
District of Columbia .................. 959 F U £1) 0)
Illinois. Cook County ................. 1,578 N N l) N
Kansas- 313 F N (1) U
M aryland, Baltimore ................. 125 N N (1) (1)
Massachusetts. Springfield ............ 385 N N (l) (l)
MaSsachusetts, Suffolk County------- 598 N N (1) (1)
Missouri. St. Louis .................... 303 N N (l) N
New J ersey. Essex County ............ 962 F U (1) (1)
New York City, court of general

sessions ............................. 415 N N (l) (l)
New York, Erie County .............. 384 N N El) (1)
New York, Kings County ............. 1, 456 F U 1)
Ohio, Hamilton County ............... N N “g (‘l
Ohio, Cuyahoga County .............. , 826 F N (x (1)
Pennsylvania, Allegheny County ..... 1, 924 F U (1) U
Rhode Island ........................ 263 N N (1) N

Total- _ - 15, 022 .......................................

 

 

 

 

 

 

 

 

 

| Number of cases less than 10.

The outcome for whites was significantly better than that
of the minority groups in 8 of the 18 units studied. How-
ever, the outcome for Negroes was significantly unfavorable
in six of the units. It must be remembered, in interpreting
the relationships shown by these tables, that the neutral
relationships may not only indicate the lack of significant
relationships of the items studied with outcome on proba-
tion but also that the number of cases is insufficient to lead
to a significant association. Because of the large number
of neutral associations, together with the favorable outcome
for Negroes in one of the units, there is no reason to be-
lieve, at least on the basis of these data, that the conduct
of Negroes on probation is any worse or better than that
of whites.

365

In order to obtain a comparison between native-born
whites and Negroes, table III was constructed. It shows
that in five units the outcome of native-born whites was
favorable whereas that of Negroes was unfavorable. How-
ever, in one unit the reverse was found. For the remain-
ing 12 departments the analysis indicates that there was no
significant difference between the outcome for native—born
whites and Negroes. The same five units which, in table
II, showed a favorable outcome for all whites and an un-
favorable outcome for Negroes reveal the same relationship
in table III. The fact that no new relationships arise when
foreign-born whites are excluded from the “white” group
indicates that the general lack of significant relationships
originally found in table II was not because of the inclu-
sion of foreign-born whites.

TABLE III.—C'omparative outcome on probation of native-born whites
and Negroes

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Relationship
Probation unit Native-
born Negroes
whites

Arizona. Maricopa County U F
California, Los Angeles F U
Colorado. Denver N N
District of Columbia F U
lliinois. Cook County N N
' nncae N N
jVIaryland, Baltimore N N
Massachusetts, Springfield- N N
Massachusetts, Suffolk County- N N
M'issouri, St. Louis N N
New J ersey, Essex County F U
New York. Erie County_- N N
New York City. court of general sessions---- N N
New York, Kings County F U
Ohio, Hamilton County N N
Ohio, Cuyahoga County-- N N
Pennsylvania. Allegheny County F U
Rhode Island ______________________ N N

 

 

 

 

Many studies have concluded that foreign-born whites are
less liable to resort to crime than native-born whites. Table
IV presents a comparative analysis of the outcome on pro.
bation of these two classes in eight probation departments.
Out of the entire group of 24 units, it was possible to make
this comparison in only 8 because of the fact that in the
other units the number of foreign-born whites was too small.

366

In three units native-born whites had an unfavorable out-
come on probation. However, the data in most of the units
do not indicate that the factor of nativity had any sig-
nificant association with outcome on probation.

TABLE IV.———0utcome on probation of white persons, by nativity

 

 

 

 

 

 

 

Relationship
Number
Probation unit
0’ cases Native. Foreign- Un-
born born known
California, Los Angeles- - 2, 759 U F N
Massachusetts, Sufiolk County ................... 559 U N F
New Jersey, Essex County 719 U F N
New York City, court of general sessions ........ 340 N N (1)
New York, Erie County ......................... 351 N N N
New York, Kings County _______________________ 1, 231 N N N
Ohio, Cuyahoga County _________________________ 644 N N F
Pennsylvania, Berks County ____________________ 280 N N N
Total ...................................... 6, 883

 

 

 

 

1 Number of cases less than 10.

Summary—On the basis of the analysis of more than
15,000 cases in 18 probation units, the factors of race and
nativity seem to bear no universally significant relation-
ships to outcome on probation. Specifically, the findings
may be summarized as follows:

(1) In eight units whites had a significantly better out-
come on probation than all other classified racial groups.

(2) In no department was the conduct of whites in
regard to violations during the probation period signifi—
cantly worse thanithe behavior of the other classified
racial groups.

(3) In six units the conduct on probation of native—born
whites was significantly better than that of Negroes, and
in one unit the behavior of native-born whites was signifi-
cantly worse than that of Negroes.

(4) In the majority of units, however, there seems to-
have been no significant difference between the outcome of
native-born whites and Negroes.

(5) In three out of eight units there is some indication
that foreign-born whites had a significantly favorable out-
come on probation. Five of the units show neutral rela-
tionships for both native- and foreign-born whites.

 

 

 

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367

With the exception of the one unit where Negroes were
found to have a favorable outcome when compared to
native whites, the significant relationships that the data
reveal are consistent. However, the general conclusion
cannot be drawn on the basis of the present analysis, that
race and nativity bear universally significant relationships
to outcome on probation. The data do not show that
Negroes, as a general rule, are more apt to violate the terms

if, of release. Rather it appears that the unfavorable out-

come for Negroes, found in a few departments, may have
been due to local conditions instead of being attributable
to a greater tendency toward criminality.

AGE

The problem of crime is, in a large measure, a problem
of youth.’ Many studies have pointed out that statistics on
arrests, convictions, and commitments reveal that persons
below the age of 25 contribute a large proportion of the
apprehended criminal element. For the year 1937 the re-
cords of arrests made by police departments that reported
fingerprint data to the Federal Bureau of Investigation
showed that persons under 25 accounted for 34.8 percent of
arrests reported.8 Moreover, persons under 25 form about
38 percent of the total commitments to State and Federal
penal institutions (excluding institutions for juvenile delin-
quents) .9 Of those committed to Federal penitentiaries, re-
formatories, and camps (excluding jails) in the fiscal year
ending June 30, 1936, about 21.5 percent were under the age
of 25.10

The device of probation is usually considered particu-
larly. applicable to the young offender. It is not surprising,
therefore, to find that a large percentage of the persons
placed on probation have not reached the age of 25. If it
is assumed that courts, in the granting of probation, give
preference to the younger offender, it would also seem likely

8Uniform Crime Reports (Federal Bureau of Investigation, 1938) 217.

9Prisoners in State and Federal Prisons and Reformatories 1936 (U. S.
Dep’t Commerce, 1938), 37.

1° Federal Oflenders: 1935—36 (U. S. Dep't Justice, 1937), 190. In the
same year persons under 25 formed 25.5 percent of the total number of pro-
bationers received for supervision by federal probation officers. Ibid.

368

that the outcome of the older probationers would be mor
favorable, since the older persons would have been mor
carefully selected than the youthful offenders. Unfortu
nately, it was not possible to determine objectively whethe
or not there had been an indiscriminate granting of proba
tion to younger individuals and less frequent use of proba
tion in the case of older offenders; therefore, the discussim
which follows is confined to the relationships of age to prc
bation outcome.

For the purposes of this section the age of the prc
bationer at the time he was placed on probation is the ag
considered. The basic data were divided into the followin
eight subcategories: Under 20 years, 20 to 24, 25 to 29, 3
to 34, 35 to 39, 40 to 44, 45 years and over, and age unknow1

In addition to the analysis revealing the outcome on prc
bation for the various age groups, an “analysis by rank
was utilized in order to determine whether or not an iI
crease or decrease in the violation rate for each subcategor
accompanied an increase or decrease in the age. Thus, 1'
probation outcome showed a success rate of 30 percent ft
the age group under 20 years, 40 percent for the 20 to 2
year group, 50 percent for the 25 to 29 year group, 60 pei
cent for the 30 to 34 year group, 70 percent for the 35 to 3
year group, 75 percent for the 40 to 44 year group, and 8
percent for the 45 years and over group, the ranks given 1
these success rates would have been 1, 2, 3, 4, 5, 6, and ‘
respectively.

The basic data used in the following analyses were 01
tained from 24 individual probation units and comprised
grand total of 19,171 probation cases. Table V shows tli
percentage distribution of the various age groups for th
24 individual probation units analyzed. It will be notice
that the percentage of cases which fell in the under 20 yea]
age group ranged from 10 percent to 44 percent of the case
This table reveals in general a concentration into three ag
groups, under 20 years, 20 to 24, and 25 to 29. In 17 of th
24 units more than 50 percent of the cases were less than 2
years of age. Since the unknowns constituted only 1.4 pel
cent of all the cases considered, a special analysis has nc
been made of the unknowns.

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369

TABLE V.—Percenta.ge distribution, by age groups

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Percentage distribution
. Total
Probation unit
cases ii;- 20 to 25 to 30 to 35 to 40 to 8115‘, Un-
20 24 29 34 39 44 over known
Arizona, Maricopa County- 335 15 19 15 13 12 8 8 10
California, Los Angeles ..... 3, 567 10 27 19 14 10 8 11 1.
Colorado. Denver ........... . 268 29 27 18 7 7 3 6 .
District of Columbia ....... 959 29 27 19 11 6 4 4 (1)
Illinois, Cook County ...... 1, 578 35 29 12 7 5 4 5 3
Vfln‘lm 313 35 24 16 5 4 4 4 8
Minnesota, Hennepin
Count t-y ................ 328 24 28 12 10 9 8 8 1
Minnesota, Ramsey Coun-
tY- 292 22 30 16 11 11 4 5 1
Missouri, St. Louis ......... . 303 30 23 13 13 9 4 7 1
Maryland. Baltimore ....... 125 34 25 14 9 10 2 6 (‘)
Massachusetts, Springfield- 385 19 22 15 14 14 7 9 (1)
Massachusetts, Suffolk
County-- ................. 598 33 25 13 8 9 5 7 (I)
New York, Erie County- - - 384 24 27 16 9 9 7 7 1
New York City, court of
general sessions ........... 415 29 22 18 13 7 3 6 2
New York. Kings County-- 1,456 39 25 13 9 5 4 4 1
New Jersey, Essex County. 962 30 21 14 11 10 6 8 (1)
Ohio, Hamilton County- -_- 361 24 33 16 10 4 3 8 2
Ohio. Cuyahoga County- -_ 826 24 31 14 11 8 5 6 1
Pennsylvania, Allegheny
County ----------------- . 1,. 4 19 17 13 13 13 9 16 (1)
Pennsylvania, Berks Coun-

........................ 301 33 22 11 9 8 7 9 1
Rhode Island --------------- 263 44 25 8 5 6 2 6 4
Vermont ................... 439 16 24 17 10 10 8 13 2
Wisconsin State Board of

Control- ----------------- 1, 964 20 27 16 11 9 7 10 (1)
Wisconsin, Milwaukee ..... 825 20 24 16 13 9 7
Total .................. 19,171 ................................
1Less than 1 percent.

The results of the statistical analysis of age and outcome
on probation are shown in table VI. This table indicates
that the most striking relationships are found in the under
20 years age group and the 4:5 years and over age group:
Eight of the probation unlts have an unfavorable entry for
the under 20 years age group, While six units ShOW a favor-
able outcome for the 45 years and over group. Thus, With-
out exception, whenever a significant association occurs for

the under 20 years age group, the result is unfavorable,
Whereas Whenever a significant result is found for the 45
years and over age group, the results are favorable. How-
ever, in the majority of the units no significant relationships
are found.

370

TABLE VI.——0utcome on probation, by age groups

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

- - Un- 20 to 25 to 30 to 35 to 40 to 45 and
“01’3“” “mt der 20 24 29 34 39 44 over
Arizona, Maricopa County- _ ................ U N N N N N N
California, Los Angeles ______________________ U U N N N F F
Colorado, Denver __ U F N N N N N
District of Columbia ...... U N N N N N F
Illinois, Cook County U F N N N N N
Kansas- _ - ___________ N N N N N N N
Minnesota, Hennepin County- ______________ U N N N N N N
Minnesota, Ramsey County ................. N N N N N N N
Missouri, St. Louis .......................... N N N N N N N
Maryland, Baltimore ........................ N N N N N (1) (1)
Massachusetts, Springfield ................... N N N N N N N
Massachusetts, Suffolk County .............. N F N U N N N
New York, Erie County ..................... N N N N N N N
New York City, court of general sessions-___- N N N N F F N
New York, Kings County ................... N N N N N N F
New Jersey, Essex County ___________________ N N N N N N F
Ohio, Hamilton County ..................... U N N N N N F
Ohio, Cuyahoga County _____________________ N N N N N N N
Pennsylvania, Allegheny County ____________ N N N F N N N
Pennsylvania, Berks County ________________ N N N N N N N
Rhode Island ________________________________ U N N N N (1) F
Vermont _________________ N N N N N N AT
Wisconsin Board of Control .................. N N N N N N N
Wisconsin, Milwaukee _______________________ N N N N N i N N

 

I Number of cases less than 10.

The analysis thus far presented does not take into con-
sideration the degrees of significance, nor does it reveal the
relationships between increasing age and violations on pro-
bation. In order to ascertain whether an increase or de—
crease in the violation rate accompanied an increase or de-
crease in age, the relative frequency of violation was ranked
according to age groups. The group with the highest rate
was assigned the rank of one, and so forth. Table VII
shows the ranks of the age groups. A statistical test of
these ranks gave a slight indication of a decreasing violation
rate with increasing age, but the table does not indicate a
clear-cut and universal relationship for all units.

 

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I District of Columbia
1 Illinois, Cook County __________________

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371

TABLE \‘II.—~Relative frequency of violations on probation, by age
groups 1

 

Probation unit Ugger

40and
20t024 25t029 30to34 35t039 over

 

Arizona, Marieopa County .............
California, Los Angeleq
Colorado, Denver

 

 

 

Kmmg
Minnesota, Hennepin County ..........

Missouri, St. Louis .....................
:Maryland, Baltimore

Massachusetts, Springfield
Massachusetts, Suffolk County ......... .
New York, Erie County
New York City, court‘of general sessions-
New York, Kings Count ty ..............
New JeHrsey, Essex County ...............
Ohio, Hamilton County ................
Ohio, Cuyahoga County ................
Pennsylvania, Allegheny County .......
Pennsylvania, Berks County ...........
Rhode Is] and

Vermont

Wisconsin State Board of Control .......
Wisconsin, Milwaukee

 

 

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1 Rank of 1 indicates highest violation rate; rank of 2, second highest, etc.

The predominance of the “neutral” entries in the extreme
age groups may be due to the small number of cases in-
volved. Therefore, further analysis was made by regroup-
ing the ages into the following subcategories: Under 25, 25
to 34, 35 and over, and unknown. With these four group—
ings, the number of cases for each group is sufficiently large
so that a neutral relationship would not be due to paucity
of the data. Table VIII shows the percentage distribu-
tion for these various groups. In 17 of the 24 probation
units more than 50 percent of the cases are concentrated in
the under 25 years age group. The percentage of cases
in the 25 to 34 age group and 35 and over are approximately
equal. The results of the analysis relating these age groups
to outcome on probation are shown in table IX. This table
indicates that when the number of age groups is decreased,
fewer significant relationships are found. While eight pro-
bation units in table VI showed an unfavorable entry for
probationers under 20 years of age, seven units now show
an unfavorable entry for those under 25. Again, while six
units in table VI showed a favorable entry for probationers

372

who were 45 years of age or older, five units now show a
favorable entry for those 35 years or older.

TABLE VIII.—Percentage distribution, by consolidated age groups

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Percentage of total
Probation unit Total 35 d U
an n-
Under 25 25 to 34 over known
Arizona, Maricopa County ____________ 100 34 28 28 10
California, Los Angeles 100 37 33 29 1
Colorado, Denver ..................... 100 56 25 16 3
District of Columbia 100 56 30 14 (1)
Illinois, Cook County _________________ 100 64 19 14 3
Kansas - 100 59 21 12 8
Minnesota, Hennepin County ......... 100 52 22 25 1
Minnesota, Ramsey County __________ 100 52 27 20 1
Missouri, St. Louis 100 53 26 20 1
Maryland, Baltimore 100 59 23 18 (1)
Massachusetts, Springfield ............. 100 41 29 30 (1)
Massachusetts. Suffolk County ......... 100 58 21 21 (1)
New York, Erie County .............. 100 51 25 23 1
New York City, court of general ses-
sions ............................... 100 51 31 16 2
New York, Kings County _____________ 100 64 22 13 1
New Jersey, Essex County ............ 100 51 25 24 (1)
Ohio, Hamilton County ............... 100 57 26 15 2
Ohio. Cuyahoga County .............. 100 55 25 19 1
Pennsylvania, Allegheny County ...... 100 36 26 38 (1)
Pennsylvania, Berks County .......... 100 55 20 24 1
Rhode Island 100 69 13 14 4
Vermont .............................. 100 40 27 31 2
Wisconsin State Board of Control ...... 100 47 27 26 (1)
Wisconsin, Milwaukee ................ 100 44 29 25 2
1 Less than 1 percent.
TABLE IX.—Outcome on probation, by consolidated age groups
. . 35 and Un-
Probation unit Under 25 25 to 34 over known
Arizona, Maricopa County ...................... N N N F
California. Los Angeles_- U N F N
Colorado. Denver N N N (1)
District of Columbia. U N N (1)
Illinois, Cook County N F N N
Kansas" N N F U
Minnesota, Hennepin County ................... U N F (1)
Minnesota, Ramsey County ..................... N N N (1)
Missouri. St. Louis_- N N N (1)
Maryland, Baltimore“ N N N (1)
Massachusetts. Springfield N N N (1)
Massachusetts, Snflolk County .................. N U N (I)
New York. Erie County ......................... N N N (‘)
N ew York City. court of general sessions- _______ U N F (1)
New York, Kings County- ...................... N N N (1)
New Jersey. Essex County ....................... U N F (‘)
Ohio. Hamilton County _________________________ N N N (I)
Ohio. Cuyahoga County _________________________ N N N (1)
Pennsylvania, Allegheny County ................ U N N (1)
Pennsylvania, Berks County .................... N N N (1)
Rhode Island __ U N N F
VermonL- , _- _____________ N N N (1)
Wisconsin State Board of Control ................ N N N (1)
Wisconsin, Milwaukee ___________________________ N N N U

 

 

 

 

 

1 N umber of cases less than 10.

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373

This lack of significant relationships between age and
outcome on probation, which is in contradiction to many
previous studies, leads to a consideration of whether or not
the definition of “failures” affected the results shown in the
preceding tables. It will be recalled that the definition of
failures includes both violations of probation conditions and
violations by offenses. Perhaps a change in definition so
that failures include only violations by new offenses might
reveal more results that are significant. An analysis was

' made using this definition, and the results are shown in

table X. This table discloses an increase in the number of
probation departments in which the outcome of probationers
under 25 was unfavorable. Moreover, table X reveals an
increase in the number of units showing a favorable outcome
on probation for probationers 35 years of age or older.
While in table IX, 7 of the '24 units showed an unfavor-
able outcome on probation for the group under 25, in table
X, 11 units show an unfavorable outcome for probationers
under 25. On the other hand, table IX showed a favorable
outcome in 5 units for the 35 years and over group, while
in table X, 11 units have a favorable outcome for this older

age group.

TABLE X.—0utcome on probation, by consolidated age groups, based
on ofi‘ense violations only

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Probation unit Under 25 25 to 34 333$ kggn
Arizona, Maricopa County ...................... U N N F
California, Los Angeles--- U N F N
Colorado, Denver N N N (1)
District of Columbia U N F (1)
Illinois, Cook County U F F N
Kansas---- N N F U
Minnesota, Hennepin County ................... U N F (1)
Minnesota. Ramsey County ..................... N N F (1)
Missouri. St. Louis.. N N N (1)
Maryland, Baltimore- N N N (1)
Massachusetts, Springfield U N N . (1)
Massachusetts, Sufiolk County .................. N N F (I)
New York, Erie County N N N (I)
New York City, court of general sessions ......... U N F (I)
New York, Kings County ....................... N N N (I)
New Jersey, Essex County U N F (1)
Ohio, Hamilton County-- N N N (1)
Ohio, Cuyahoga County U N F (1)
Pennsylvania, Allegheny County ................ U F F (1)
Pennsylvania, Berks County .................... N N N (1)
Rhode Island- _____ U N F F
Vermont -_ N N N (1)
Wisconsin State Board of Control ................ N N N (1)
Wisconsin, Milwaukee- N F N (1)

 

 

1 Number of cases less than 10.

374

The increase in significance of age with outcome on pro—
bation under this new definition of. failure has many impli-
cations. First, there is indication that older probationers
are proportionately more often detected for violation of
conditions of probation than younger offenders and, second,
that youthful probationers are more often detected in the
commission of offenses on probation than more mature indi-
viduals. This fact is strikingly brought out by a compari-
son of the percentage of violation by conditions to total vio-
lations of each of the age groups. These percentages are
shown in table XI. This table reveals that in 19 of the
21 units where a comparison could be made, the percentage of
violations by conditions to total violations of the 35 years
and over group was higher than that for the group under 25.
Application of the “test of significance” indicates that the
differences are significantly greater in all but 3 of these 19
units. These statistics bring out that a significantly larger
number of probationers who were 35 years of age or over,
as compared to those under 25, were recorded as violators
of the conditions of release.

TABLE XI.—Pcrcentage of total violators 1 who violated probation

 

 

 

 

 

 

con ditions
Probation unit Under 25 25 to 34 32331

Arizona, Maricopa County ................................. 72 71 76
California, Los Angeles ..................................... 47 49 50
Colorado, Denver- ......................................... 38 43 53
District of Columbia- ...................................... 32 30 44
Illinois, Cook County ...................................... 32 65 85
Kansas. ________________________________ 46 32 (2)
Minnesota, Hennepin County .............................. 51 71 85
Minnesota, Ramsey County ................................ 45 58 87
Missouri, St. Louis ......................................... 74 68 (1)
Maryland, Baltimore ....................................... 25 50 (2)
Massachusetts, Springfield ................................. 31 31 53
Massachusetts, Sufiolk County ............................. 17 30 45
New York, Erie County .................................... 21 46 42
New York City, court of general sessions .................... 37 58 53
New York, Kings County ........ 41 58 58
New Jersey, Essex County ................................. 36 48 45
Ohio, Hamilton County .................................... 24 17 23
Ohio, Cuyahoga County .................................... 41 53 64
Pennsylvania, Allegheny County ........................... 63 79 85
Pennsylvania, Berks County ............................... 80 SS 7
Rhode Island _____________________________ 15 21 43
Vermont ....................... - - - - - - 50 52 82
Wisconsin State Board Control ............................. 61 64 64
Wisconsin, Milwaukee ..................................... 47 35 ‘2

 

 

 

 

 

 

{Total violators include those who violate probation conditions and those who violate
their probation by way of committing new offenses.
3 Number of cases less than 10.

375
The fact that a very large proportion of older probation-

? ers are found to violate the conditions of release does not

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necessarily indicate that their conduct is worse than that of
probationers under 25 years of age. It may be that a larger
number of conditions are imposed on the more mature of-
fenders and that the conditions which are imposed are more
strictly enforced. Or the practice of releasing the youthful
offenders without the requirement that they observe definite

gand detailed terms may be a general one. If such is the

case, then the records of the young probationers would not
reveal violations of conditions. However, in view of the
fact that the youthful probationers appear to be more apt to
commit new offensese, it would seem that closer supervision
should be maintained over them. At least if violations of
conditions are any indication of tendencies toward crime,
then greater care should be exercised to insure observance
of the terms of release on the part of young offenders.

Table XII presents an analysis of age and outcome, with

:L the definition of failures limited to violations by new of-

fenses, for each of the original eight age groups. With this
detailed breakdown there is a more marked differentiation
between the younger age group and the matured age group
than found in any of the previous analyses. There is defi-
nite indication that probationers under 20 are more likely
to violate by committing new offenses than any of the other
groups. Fourteen of the twenty-four units show an unfa-
vorable outcome on probation for the under 20 years age
group. The favorable relationships begin to cluster in the
age group 35 to 39, and 15 units show a favorable outcome
on probation for offenders who have passed the age of 35.

73115—39—von. [1—25

376

TABLE XII.—Outcome on probation, by age groups, based on violations,
by new ofi‘enses

 

 

 

 

 

 

 

 

 

 

Un- 20 25 30 35 40 45 UP
Probation unit der to to to to to and 11:10:”)
_ 20 24 34 39 44 over
Arizona, Maricopa County .......... N N N N N N N N
California, Los Angeles .............. U U N N F F F N
Colorado, Denver ................... N N N N N (1) N (1)
District of Columbia U N N N F N F (1)
Illinois, Cook County ............... U N F F F N N N
Kansas N N N N F N N U
Minnesota, Hennepin County ...... U U N N F F F (0
Minnesota, Ramsey County ........ N N N N F N N (1)
Missouri, St. Louis ................. N N N N N N N (‘)
Maryland, Baltimore- .............. N N N N N (1) (1) (0
Massachusetts, Springfield .......... U N N N N N N (1)
Massachusetts. Suffolk County _____ U N N U F N N (0
New York, Erie County ............. U N N N N N N (1)
New York City, court of general
sessions-- U N N F F N N (1)
New York, Kings County ........... U N N N N N F U
New J elsey, Essex County .......... U N N N F N F (1)
Ohio, Hamilton County ............. U N N N N N F (‘l
Ohio, Cuyahoga County ............. U N N N N N F (1)
Pennsylvania, Allegheny County--- U N F N F F F (‘)
Pennsylvania, Berks County ........ N N N N N N N (1)
Rhode Island U N N N N F F (1)
Vermont N N N N N N N 0)
Wisconsin State Board of Control--- N N N N N N F (1)
Wisconsin, Milwaukee .............. N N N U N N N N

 

 

 

 

 

 

1 Number of cases less than 10.

Summary—The analysis of age and outcome on proba-
tion, based on 19,171 cases in 24: probation departments,
indicates that, when significant relationships are found, the
outcome of youthful offenders is uniformly worse than that
of more mature individuals. The statistical analyses in this
section reveal that:

( 1) In eight probation units offenders under 20 had an
unfavorable outcome based on all recorded violations dur-
ing the probation period, including violations by conditions
and violations by new offenses.

(2) However, when only violations by new ofi'enses are
considered as failures, probationers under 20 had an unfa-
vorable outcome in 14 probation departments.

(3) On the other hand, probationers who had reached the
age of 45 had a favorable outcome on probation in six de-
partments when the definition of failure included violatiOns
both by condition and offense.

(4) However, probationers 1n the 45 and over group had
a favorable outcome on probation in 10 units when only
violations by new offenses are considered.

1
1
l

1

 

377

The data indicate that probationers who have passed the
age of 35 are less inclined to violate on probation than
younger offenders. After that :age there is no marked
decrease in the frequency of violation. In other words, the
contrast, insofar as age is concerned, seems to be between
probationers under 25 and those over 35. In the light of
these facts, it would seem that more careful selection and
supervision should be exercised in the case of youthful
offenders than is now generally the case.

MARITAL STATUS

It has been stated that “there cannot be much doubt that
the regular and responsible lives of the married renders
them less likely to commit offenses than the unmarried.” 11
It may be that marriage exerts a stabilizing influence and
that the presence of dependents contributes to a more re-
sponsible and law abiding life. Moreover, the experience
of an unsuccessful marriage, which has ended in separa-
tion or divorce, may lead some individuals into criminal
activities.

The present analysis does not attempt to determine the
causal relationships between marital status and criminal
behavior. However, it is possible to ascertain whether the
marital condition of the probationer is associated with a
favorable or an unfavorable outcome on probation. The
purpose of this section, therefore, is to relate the marital
status of 19,171 probationers in 24 probation departments
to outcome on probation.

The cases analyzed in this section were divided into the
following seven groups: Single, married, divorced, sepa-
rated, widowed, other, and unknown. Most of these cate-
gories are self-explanatory. Cases not classifiable in any of
the first six groups, such as persons whose marriage had
been annulled or who had deserted, were included in the
“other” group. The status was determined as of the time
when the offense, for which probation was granted, was
committed.

Table XIII shows the distribution by percentage of all
cases falling in the various categories of marital status.

h

11Gillin, Criminology and Penology (rev. ed. 1935) 52.

378

This table shows that with some few exceptions, the number
of cases falling within the categories divorced, separated,
widowed, and other was not sufficient to warrant a detailed
treatment of each category. Most of the cases are concen-
trated in the single and married groups. In fact, the pro-
portion of cases which fall in these groups ranges from 56
percent to 96 percent. The separated class constitutes the
greatest proportion of the cases not included in the single or
married group. However, even this group for most proba-
tion units constitutes a very small proportion of the cases
considered. As in the case of race and age, the proportion
of unknowns in each of the units is very small. In only
two units, namely, Maricopa County, Arizona, and Kansas
is there an appreciable number of unknowns. However, the
entire unknown group constitutes only about 3 percent of
the total number of cases considered; therefore, since this
percentage is so small, no further consideration will be
given to the unknown group.

TABLE XIII.—Percentage distribution by mar-ital status

 

 

 

 

 

 

. Total . Mar- Di- Sepa— Wid- Un-
Probation unit cases Single ried vorced rated owed Other known

Arizona, Maricopa County-- 335 27 43 3 6 1 (1) 20
California, Los Angeles ..... 3, 567 45 31 7 8 2 6 1
Colorado, Denver ........... 268 55 27 6 10 1 (1) 1
District of Columbia ________ 959 54 27 2 13 2 2 (1)
Illinois, Cook County ....... 1, 578 65 28 2 3 1 1 (1)
Kansas 313 32 24 3 3 l 5 32
Minnesota, Hennepin County- 328 47 26 6 11 2 7 1
Minnesota, Ramsey County- 292 49 26 8 13 1 3 (1)
Missouri, St. Louis __________ 303 53 43 (l) 1 1 1 1
Maryland, Baltimore ....... 125 58 31 4 4 2 1 (1)
Massachusetts, Springfield-_ 385 45 44 2 4 2 3 (1)
Massachusetts, Suffolk

County ___________________ 598 62 24 1 8 1 3 1
New York, Erie County-___ 384 54 25 1 4 1 14 1
New York City, court of

general sessions - .......... 415 60 28 1 6 2 2 1
New York, Kings County- - 1, 456 69 21 1 7 1 1 (1)
New Jersey, Essex County-- 962 53 31 1 9 2 4 (1)
Ohio, Hamilton County- _ - - 361 47 31 5 13 2 1 1
Ohio, Cuyahoga County__-- 826 58 24 4 6 1 7 (1)
Pennsylvania, Allegheny

Count ------------------- 1, 924 45 45 1 5 4 (I) (1)
Pennsylvania, Berks County- 301 54 35 2 5 3 1 (1)
Rhode Island- ------------- 263 72 16 2 3 2 (1) 5
Vermont -------------------- 439 41 51 1 4 2 (1) 1
Wisconsin State Board of

Control ------------------- 1, 964 48 31 7 6 2 5 1
Wisconsin, Milwaukee ------ 825 47 28 6 10 2 6 1

Total ----------------- 19, 171
J

 

 

 

 

 

 

 

 

 

1 Less than 1 percent.

._ ,_, é_,.

“-

379

Table XIV indicates the association between the various
categories and outcome on probation. This table shows
that where significant results were obtained, with only one
exception (Wisconsin State Board of Control) the outcome
of single persons was unfavorable. Seven of the twenty-
four units show a significant relationship between single
persons and unfavorable probation outcome.

TABLE XIV—Outcome on probation, by marital status

 

 

 

 

 

 

 

 

 

. Mar- Di- Sepa- Wid- Un-
Probation unlt Single ried vorced rated owed Other known
Arizona, Maricopa County---- U N N N (I) (1) F
California, Los Angeles ........ U F N U N N N
Colorado, Denver .............. U N N N (l) (1) (1)
District of Columbia ........... U F N N N N 8
lfllinois, Cook County .......... N N U N N (l 1
,Kansas ........................ N N (l) (1) (1) U
Minnesota, Hennepin County N N N (1) N g!)
Minnesota, Ramsey County--- N N N N (l) (1) ‘)
'- Missouri, St. Louis ____________ N N (1) (1 (0 (1) (‘
Maryland, Baltimore .......... N N (1) (l 8 (1) E‘
Massachusetts, Springfield ..... N N (l) N l N 1
Massachusetts, Suffolk County N N (1) N (1) F E1
New York, Erie County ....... , N F (I) N (1) N 1
New York City, court of gen-
eral sessinns U F (1) N (1) N (1
New York, Kings County ..... N F U U N (1) (1
New Jersey, Essex County ..... U F (l) N N N (1
Ohio, Hamilton County ....... U F N N (l) (1) (1
Ohio, Cuyahoga County ....... N N N N N N (1
Pennsylvania. Allegheny
County ...................... N N N N U (1) 8
1 Pennsylvania, Berks County-- N N (1) N (1). (1; l
‘ Rhode Island .................. N N (1) (1) (‘) (l N
ermnnt N (1) N (l) (I) 0)
Wisconsin State Board of Con-
ro - F N U U N U F
' Wisconsin, Milwaukee ......... N N N N N N (1)

 

 

 

 

 

 

 

 

1 Number of cases less than 10.

For the married group no unit shows an unfavorable
outcome on probation, while 7 out of the 24 units reveal a

. favorable outcome. However, the significant relationships
, are not universal, since 16 of the 24 units show a neutral
. outcome and one unit shows a favorable outcome for single
‘ individuals, while 17 of the 24: units show a neutral outcome
' for the married.

For the other marital conditions (separated, divorced,

; and widowed) there is also a lack of universality of relation-
; ships, although there is some indication that both the di-
. vorced and separated groups were unfavorably associated

with outcome on probation. However, the lack of univer-

380

sality for the two groups may be attributed to the compara-
tively small number of cases in each. Therefore, they were
combined into one, in order to determine whether a greater
number of significant relationships would be shown for the
separated and divorced groups. In all of the units except
one this combination yielded sufficient data for analysis.

The results of an analysis using such a grouping are shown
in table XV. It will be noticed that 6 of the 23 units shovv.r
an unfavorable outcome on probation for the combined di-
vorced and separated category referred to in this table as
“broken homes.” Thus, it can be seen that as a result of this
combination, two units which formerly showed a neutral
relationship now reveal an unfavorable outcome for the
combined group. Therefore, it appears that while the di-
vorced and separated were not universally associated with
an unfavorable probation outcome, the only significant rela-
tionships which did exist between broken homes (i. e., di-
vorced and separated) and outcome on probation were
unfavorable.

The largest number of significant relationships, however,
are found in the single and married groups. In interpret-
ing tables XIV and XV it must be borne in mind that each
category was compared with the total of all other types of
marital relationships. Hence, the favorable outcome, in the
Wisconsin State Board of Control, for the unmarried indi-
viduals may be more in contrast with the categories, di—
vorced, separated, widowed, and other than with the married.
This assumption is in part substantiated when it is noticed
that the outcome for the divorced, separated, and other
groups of cases under the Wisconsin State Board of Control
is unfavorable. Likewise, the neutral relationships found for
the single and married groups in many of the units may be
due to the lack of contrast between these groups and the
other marital relation groups and does not signify that there
are nosignificant differences in outcome between single and
married individuals.

 

 

 

n
y. a

" a sults for all nine units which show a significant relation-

i-vv'

“ta

3']

m

iii
1‘
3':

381

TABLE XV.-—0utcome on probation, by selected marital groups

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

. . . Broken
Probation unit Single Married home Other

Arizona, Maricopa County U N N N
California, Los Angeles- U F U N
Colorado, Denver U N N N
District of Columbia U F N N
Illinois, Cook County N N U N
msas--- N N N N
M .nnesota Hennepin County- .................. N N N F
M innesota, Ramsey County _____________________ . N N U N
. Missouri, St. Louis_- N N (1) (1)
- Maryland, Baltimore- N N N (1)
Massachusetts, Springfield N N N N
Massachusetts, Suffolk County .................. N N N N
New York, Erie County N F N N
New York City, court of general sessions ......... U F N N
New York, Kings County _______________________ N F U N
New Jersey, Essex County U F N N
Ohio, Hamilton County- U F N N
Ohio, Cuyahoga County N N N N
Pennsylvania, Allegheny County ................ N N N U
Pennsylvania, Berks County .................... N N U N
Rhode Island N N N (1)
Vermont N N N N
Wisconsin State Board of Control ................. F N U N
Wisconsin, Milwaukee N N N N

 

 

 

 

 

 

1 Number of cases less than 10.

In order to determine whether or not the outcome of the
single individuals is significantly different from that of the
married persons on probation, a further analysis was under-
taken. The data for the single and married persons were
considered as an entity and the divorced, separated, other,
and unknown cases were excluded from the analysis. Such
an analysis should disclose whether the outcome of the
married differs significantly from that of single persons.
The results of this analysis are shown in table XVI.

From table XVI it is seen that 9 of the 24 units show a

'. significant outcome on probation for the single and mar-

ried individuals. With only about one-third of the 21
units showing a significant result, the importance of mari-
tal status cannot be assumed to be universal. However,
some significance may be attached to the fact that the re-

ship are uniform. All nine suits show an unfavorable:
result for the single individuals, while they show a favor-

able result for the married individuals. The one unit which

had previously shown a favorable outcome for single in-
dividuals is now revealed as having a neutral outcome. In
other words, the assumption was proved to be correct that

382

the favorable outcome for single individuals in this unit
was not the result of the contrast with married individuals
as much as with the other marital status groups.

TABLE XVI.—Oomparative outcome on probation of single and married

 

 

 

 

 

persons
Probation unit Single gal-1 Probation unit Single 13%
Arizona, Maricopa County---- U F New York, Kings County ..... U F
California, Los Angeles ........ U F New Jersey, Essex County---_ U F
Colorado, Denver ............. U F Ohio, Hamilton County ....... U F
District of Columbia .......... U F Ohio, Cuyahoga County ...... N N
Illinois, Cook County ......... N N Pennsylvania, Allegheny
Kansas N N County_ ____________________ N N
Massachusetts, Suffolk County N N Pennsylvania, Berks County- - N N
Minnesota, Hennepin County- N N Rhode Island N
Minnesota, Ramsey County-- N N Vermont ...................... N N
Missouri, St. Louis ............ N N Wisconsin State Board Con-
Maryland, Baltimore _________ N N trn 01 N N
Massachusetts, Springfield--- N N Wisconsin, Milwaukee ........ N N
New York, Erie County ....... U F
New York City, court of gen-
eral ' U F

 

 

 

 

 

 

 

 

Since a large number of the units show a neutral rela-
tionship, it is possible that the definition of violators af-
fected the results obtained from these data. It is to be re—
membered that in the above analyses all those persons whose
records disclosed a violation by new offense or a violation
of a condition of probation were considered violators. In
the following analysis only those persons whose records dis-
closed the commission of a new offense while on probation
will be considered violators.

Table XVII shows the results of analyzing the signifi-
cance of single and married individuals and outcome on
probation, using this new definition of failures. But even
with this limited definition of failure, no great change in
relationships is found. Although one unit reveals a change
to a neutral from a significant relationship in table XVI,
another department shows a change from a neutral to a
significant relationship in table XVII. Thus the total num-
ber of significant relationships remains at 9 out of the 24
units. It is important, however, to note that this changed ,
definition of violation reveals the same associations as were
disclosed when violations included violations both by con-
dition and new offense. Thus, when significant associa-

383

tion is present, it shows a consistently favorable outcome
for married individuals and an unfavorable outcome for
single individuals. This result is unaffected by the defini-
tion used to determine violator groups.

TABLE XVII.—-Comparative outcome on probation of single and
married persons, based on ofi'ense violations only

 

 

 

 

 

 

 

 

 

 

- - Sin- Mar- . - Sin- Mar-
Probation unit gle ried Probation unit gle ried
Arizona, Maricopa County---_ U F New York, Kings County ..... U F
California, Los Angeles ........ U F New Jersey, Essex County-_-- U F
Colorado, Denver ............. N N Ohio, Cuyahoga County---_-- N N
District of Columbia .......... U F Ohio, Hamilton County ....... N N
lillinois, Cook County ......... N N Pennsylvania, A l l e g h e n y
mas N N County .....................
Wnnesnfn, Hennepin County N N Pennsylvania, Berks County- - U F
VI “nesnfn Ramsey County--- N N Rhode Island N N
VI ssmiri St I miiq N N Vermont ______________________ N N
Maryland, Baltimore .......... N N Wisconsin, State Board of Con- N N
Massachusetts, Springfield---- N N to
Massachusetts, Suffolk County U F Wisconsin, Milwaukee ........ N N
New York, Erie County ....... U F N N
New York City, court of gen-
eral “\quan U F

 

 

 

 

 

 

 

 

It is important to ascertain whether there is any indica-
tion that the influence of marriage toward probation suc-
cess may be attributed to the increased responsibility caused
by dependent persons. While the data for some of the single,
divorced, separated, widowed, and other cases indicated that
they also had dependents, the number of these cases with
dependents was so small that the results of an analysis
would be statistically invalid. Therefore, this analysis was
confined to the probation outcome of married persons with
dependents.

Table XVIII shows the percentage distribution of the
number of married probationers having one, two, and three
or more dependents. Wives were considered dependents;
therefore, the category showing one dependent includes only
those probationers who had no dependents other than their
wives. Two dependents includes one other dependent in
addition to the wife of the probationer. It will be noticed
that, with few exceptions, the greater proportion of the mar-
ried individuals fall into the class having three or more de-
pendents.

384

TABLE XVIII.—Pereentage distribution by dependents of married

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Number of dependents
Probation unit
1 2 3 or Un-
more known
Arizona, Maricopa County 34 23 37 16
California, Los Angeles 34 24 41 1
Colorado, Denver 31 21 44 4
District of Columbia 41 26 30 3
Illinois, Cook County 31 32 37 (1)
Kansas 29 24 27 20
Minnesota, Hennepin County ................... 19 33 48 (1)
Minnesota, Ramsey County .................... 22 22 56 (1)
Missouri, St. Louis 31 22 44 3
Maryland, Baltimore-- 27 29 39 5
Massachusetts, Springfield 27 20 49 4
Massachusetts, Suffolk County ................. 29 23 48 (1)
New York, Erie County- 30 16 52 2
New York City, court of general sessions ......... 23 29 48 (1)
New York, Kings County 33 27 39 1
New Jersey, Essex County ...................... 34 21 45 (1)
Ohio, Hamilton County 29 30 41 (1)
Ohio, Cuyahoga County ________________________ 24 27 48 1
Pennsylvania, Allegheny County _______________ 32 18 49 1
Pennsylvania, Berks County .................... 29 23 44 4
Rhode Island-_ 33 31 36 (1)
Vermont- 37 56 7 (1)
Wisconsin State Board of Control ................ 25 21 49 5
Wisconsin, Milwaukee- 22 27 49 2

 

 

 

 

1 Less than 1 percent.

An analysis of the cases included in table XVIII
made to determine the significance OI" dependents on
bation out-come. Table XIX shows the results of this an
sis. This table rather uniformly indicates that the circ
stance of having more than one dependent had a neglib
effect on probation outcome. While in four units pr
tioners with one or two dependents had a significantly 11
favorable outcome on probation than those who had t
or more dependents, nevertheless in two other units
bationers with three or more dependents reveal a sig
cantly more favorable outcome on probation than those
had less than three. This reversal of relationships p
ably indicates that the effect of dependents on the con
of married individuals on probation was immaterial. ‘

385

TABLE XIX—Outcome on probation of married probationers, based
on number of dependents

Number of dependents

 

Probation unit
Un-

1 2 3 or more known

 

Arizona, Maricopa County ......................
California, Los Angeles

Colorado, Denver
District of Columbia

Illinois, Cook County
Kansas- - -
Minnesota, Hennepin County ...................
:Minnesota, Ramsey County .....................
Missouri, St. Louis--
:Maryland Ralfimnra
Massachusetts, Springfield

Massachusetts, Sufiolk County ..................
New Jersey, Essex County .......................
New York, Erie County
New York City, court of general sessions .........
New York, Kings Count ty .......................
Ohio, Hamilton County
Ohio, Cuyahoga County
Pennsylvania, Allegheny County .................
Pennsylvania, Berks County ....................
Rhode Island

Vermont.

Wisconsin State Board of Control ................
Wisconsin, Milwaukee

 

 

ZZZZZMZZZ

 

 

A
H
v

 

 

 

ZZZZZWZ’fiZZZZZZZZZZZZWQG‘Z
ZZZMZZZGZZZZZGZZZ’ZZZQZMZ

ZMZZZZZZZZZZZZ

 

 

 

 

 

! Number of cases less than 10.

As a final step in the analysis to determine the effect of
dependents on probation outcome, probationers having only
wives as dependents were compared with those having one
or more dependents in addition to their wives. The results
of the analysis are presented in table XX, which shows that
the presence or absence of dependents other than wives had
no significant effect on the outcome of married individuals
on probation.

386

TABLE XX.—Outcome on probation: Significance of dependents
encess of! one -

 

 

 

 

 

 

 

 

 

 

 

 

 

 

More
1 de- than 1 1 de— t
Probation unit pend- de- Probation unit pend-
ent pend- ent
ent
Arizona, Maricopa County---- N N New York, Erie County ...... N
California, Los Angeles ........ N N New York City, court of gener-
Colorado, Denver ............. N N al sessions ................... N
District of Columbia .......... N N New York, Kings County--_-- N
lillinois, Cook County ......... N N Ohio, Cuyahoga County ...... N
_ “MM N N Ohio, Hamilton County ....... N
Minnesota, Hennepin County. N N Pennsylvania, Allegheny
Minnesota, Ramsey County" N N County ..................... N
. issnnri, St. Louis ............ N N Pennsylvania, Berks County-- N
M; aryland, Baltimore .......... N N Rhode island N
assachmnfts, S pringfield--_- N N Vermont ...................... N
M. tassachusetts, Suffolk Coun- Wisconsin State Board of
ty N N Control ..................... N
New Jersey, Essex County--_- N N Wisconsin, Milwaukee ........ N J

Summary—An analysis of 19,171 cases, in 24: proba
units, was made to determine whether the outcome on
bation differed significantly for the following grou
Single, married, divorced, separated, widowed, and otl
The results show that there was no universality in the
lationships between marital condition and outcome on 1
bation. The following relationships were found:

(1) Single persons had an unfavorable outcome in se
departments and a favorable outcome in only one.

1(2) Married individuals had a favorable outcome
seven departments and in no instance was the conduct
this group unfavorable.

(3) Divorced and separated probationers had an un
orable outcome in six departments.

(4) The outcome of single persons, in contrast with n
ried individuals, was unfavorable in nine departme
This relationship was found when the definition of fail
included both violations by conditions and new offen
Moreover, the same relationship was found when the
inition of failure was limited to new offenses only.

(5) The conduct, in regard to violations, of mar
probationers with more than one dependent was not
nificantly diflerent from that of probationers whose o
dependents were their wives.

In other words, although universality of relationship
not found, in every instance where the data reveal

387

nificant relationships, the outcome of married individuals
was better than that of single persons or divorced and
separated probationers. There is some indication, there-
fore, that married probationers are less likely to violate
the terms of release than the unmarried, divorced, or sep-
arated, and that the fact of marriage itself seems to be of
more importance than the responsibility of additional de-
pendents since the presence or absence of dependents other
than wives did not influence the behavior of married
probationers.
RECIDIVISM‘

There is general agreement among criminologists and
criminal law administrators that offenders with a history of
known criminality are, generally speaking, less likely to
respond to correctional treatment than first offenders. This
belief has found expression in the many statutory restric-
tions upon the eligibility of “repeaters” for probation. The
restrictions, however, are usually limited in scope and in
most instances deny probation to persons previously con-
victed of a felony. It would be interesting to ascertain
whether second-felony offenders are more apt to return to
crime than persons with a history of two or more misde-
meanors. However, the data at hand are not subject to
such refined treatment; moreover, it is questionable whether
an analysis based solely on the technical distinction be-
tween felonies and misdemeanors would produce any mean-
ingful results. Degrees of recidivism are not so clearly de-
fined. Therefore, the analysis in this section is confined to
a consideration of the relationships between a known his-
tory of previous incarcerations and behavior, or outcome,
on probation.

A recidivist, as the term is here used, is a person who has
served at least one period of incarceration prior to his pres-
ent probationary treatment. In determining incarcerations,
all sentences served in any penal or correctional institution,
including jails, reformatories, houses of correction, indus-
trial or correctional schools, prisons, and penitentiaries,
have been included. Commitment to the same institution
has been counted each time, except when there has been a
return for parole violation to serve out the remainder of

388

the sentence. However, a new sentence imposed upon a
parole violator, because of conviction‘ for a new offense com-
mitted during the parole period, has been counted as a sep-
arate previous incarceration. Although the number of
prior convictions probably would be a more accurate meas-
ure of recidivism than the number of previous commit-
ment-s, records of commitments are used because there is
more complete and reliable information for commitments
than for convictions. Since persons whose prior convic-
tions resulted in release on probation or suspended sentences
are not termed “recidivists,” the definition of “recidivism”
here used results in an understatement of the number of
actual recidivists released on probation.

The data were divided into eight categories: Those with
no previous incarcerations; those with either one, two, three,
four, or five previous incarcerations; those with more than
five previous incarcerations; and the unknown group. This
last group includes all cases of probationers concerning
whom conflicting evidence was found in the official records
as to their previous criminality. In addition, it includes
many cases of oflenders who were known to have been incar-
cerated previously, but since information as to the exact
number of prior commitments was not available, they were
included in the unknown group.

The data employed in making the analysis of recidivism
and outcome on probation were gathered from 21 separate
probation units scattered throughout the United States.
The 24 units grouped together represent a total of 19,171
cases. Table XXI shows the percentage distribution accord-
ing to the extent of recidivism for the cases in 24 probation
units. It is important to remember that all these data are
based on recorded commitments, and it is not only possible
but highly probable that in these data are probationers
whose actual history of prior criminality was much greater
than revealed by commitment records. Not only were fines
and prior probationary releases omitted, but some commit-
ments may not have appeared in the records. However, it
is obvious that the known recorded incarcerations never
overstate the number of previous convictions.

389

TABLE XXL—Percentage distribution by recidivism

 

 

 

 

 

 

 

 

 

 

 

 

Number of prior incarcerations
. Total
Probation unit cases N 1 2 3 4 5 12%,)“, Un-
one an
5 known
Arizona, Maricopa County- 335 87 3 1 1 (I) (I) (I) 8
California, Los Angeles IL“. 3, 567 35 35 11 5 2 1 1 10
Colorado, Denver .......... 268 74 16 2 (l) 1 (1) (l) 7
District of Columbia- -----_ 959 63 14 4 1 (I) (I) (I) 18
Illinois, Cook County ...... 1, 578 89 7 1 (1) (0 (‘) (1) 3
Kansas ..................... 313 57 16 2 (1) 1 (I) (1) 24
Maryland, Baltimore ....... 125 78 7 2 1 1 (1) 1 10
Massachusetts, Springfield- 385 87 7 2 1 (0 (1) (0 3
Massachusetts, S uff 01k
County ................... 598 75 12 5 2 2 (I) 1 3
Minnesota, Hennepin
County ___________________ 328 69 17 5 1 (I) (I) 1 7
Minnesota, Ramsey Coun-
ty ________________________ 292 80 11 4 1 (I) (I) (I) 4
Missouri, St. Louis ......... 303 53 18 2 (I) (1) (I) (I) 27
New Jersey, Essex County- 962 80 11 3 2 (1) (1) (1) 4
New York, Erie County.-- 384 71 11 3 2 (I) 1 11
New York City, court of
general sessions ___________ 415 74 14 5 1 (1) (1) 5
New York, Kings County__ 1, 456 82 12 3 1 (I) (I) (I) 2
Ohio, Hamilton County_-__ 351 75 13 4 2 (I) (I) (I) 6
Ohio, Cuyahoga County- -_ 826 73 14 4 1 (1) (0 (') 8
Pennsylvania, Allegheny
Coun ty ___________________ 1, 924 89 2 1 (I) (I) (I) (I) 8
Pennsylvania, Berks Coun-
ty ________________________ 301 93 6 1 (I) (I) (I) (I) (I)
Rhode Island --------------- 263 52 18 7 1 (1) 13
V ermont ___________________ 439 78 4 2 (1) 1 (0 (1) 15
Wisconsin State Board
Control ___________________ 1, 964 79 10 2 1 (I) (I) (I) 8
Wisconsin, Milwaukee _____ 825 72 13 6 (I) (I) 6
Total .................. 19, 171 ..............

 

 

 

 

 

1 Less than 1 percent.

3 It may be that the relatively greater number of probationers with one or more previous
lncarcerations in this department is due to the fact that California law permits imposition
of a jail term as a condition of probation.

Table XXI reveals that in these 24 units the percentages
of cases placed on probation which show no previous his-
tory of incarceration range from 35 percent in Los Angeles
to 93 percent in Berks County, Pa. Most of these units
Show a decided decline in the number of persons placed on
probation whose records reveal more than two previous in-
carcerations. However, some of these units show a tendency
to place persons on probation who had four, five, and even
more than five previous incarcerations.

Table XXII indicates the results of the statistical anal-
ysis of recidivism and outcome on probation for the 24
probation units. This table shows that in 16 of the 24 units
probationers with no previous incarcerations were signifi-
cantly associated with favorable probation outcome. The
eight remaining units show neutral relationships for persons
who had not previously been incarcerated.

390

Twenty-three units had a sufficient number of probatio
ers with one previous incarceration to warrant analys'
These probationers had a favorable outcome in only 1 d
partment; in 8 units their outcome was unfavorable; and '
14, neutral. The outcome of probationers who had been '
carcerated 2 times, in the 17 departments with enough cas
to permit analysis, was unfavorable in 9 and neutral in
Probationers with three previous incarcerations did not ha
a favorable outcome in any unit, while in six of the seve
units for which data were available the outcome of th
group was significantly unfavorable. For persons with fo
or more previous incarcerations but one unit had suflicie1
data for an analysis. This one unit shows an unfavorab
outcome for those cases with four previous incarcerations
well as for those with five or more than five previous inca
cerations. In other words, those probationers with 1
known history of incarceration were never associated wit
unfavorable probation outcome; whereas when significa
relationships are found, with one exception, those prob
tioners with a known history of incarcerations, were assoc
ated with unfavorable probation outcome.

TABLE XXII.—Outcome on probation, by number of prior

 

 

 

 

 

 

 

 

 

mcarcerations

fig 58 £2 avg 53 53 no
> 13 S '5 8 :95 B :3 3 3% 3 :‘3’ 5 =1
Probation unit 3 a 8 i3 2 e 8 s 2 s 2 w 5 3
“g 3,23 228 as as as 13 E

u u 5.4 3-4 2.. 3-. L. 1-4 H H

o :2. a. as o. :2. as a. as C
Z'E F‘ 8 N 0 03 8 V4 0 IO U E 5
Arizona, Maricopa County ............ F N (1) (‘l (1) (1) l U
California, Los Angeles F N U U U (U) U

Colorado, Denver ..................... N N (1) (1) (1) 0) (1)
District of Columbia .................. F N U U (‘) (I) (1) U
Illinois, Cook County .................. F U N (‘) 0) (1) (1) F
9.an N F N (1% (1) (1) (1) N
Minnesota, Hennepin County ......... F N N (1 (1) (1) (1) N
Minnesota, Ramsey County ........... F N U (1) (1) (‘ (1) N
Missouri, St. Louis .................... N N U) (0 (‘) (I; (1) N
Maryland, Baltimore N (1) (1 (1) (1 (I) (1) ’ N
Massachusetts, Springfield F N (l (1) (I; (1) (1) N
Massachusetts, Suffolk County ........ F N N (1) (U (l (1 N
New York, Erie County-- F U N (1) (1) (I; 0; F

New York City, court of general ses- ,

sions F N N (I) 0) (l (I) U
New York, Kings County ............. F U U N (1) (1 (1) N
New Jersey, Essex County F U U U (l) (1) (1) U
Ohio, Hamilton County ............... F U U (1) (1) (I) (l U
Ohio, Cuyahoga County .............. F U U (1) (1) (l (1; U
Pennsylvania, Allegheny County----- N N N (1) (1) (I; (1) N
Pennsylvania, Berks County .......... N N (1) (1) (l (1) (1) (1)
Rhode Island .......................... N N N U (1; (1) (1) F
Vermont N N (1) (1) (‘) (1) (1) N
Wisconsin State Board of Control _____ F U U U (1) (l) (l) U
Wisconsin, Milwaukee ................ F U U U (1) (1) (l) U

 

 

 

 

 

 

 

 

I Less than 10 cases.

391

The large number of neutral relationships in table XXII
might have been due to the small number of cases in some
of the categories. Therefore, table XXIII was prepared
classifying all cases into two groups, those cases with no
previous incarcerations and those cases with one or more
previous incarcerations. In addition, the unknown group
was excluded. This grouping brings out even more strik-
ingly the association between recidivism and unfavorable
probation outcome. Fifteen of the twenty—four units show a
significant association between previous incarceration and
unfavorable probation outcome. The remaining nine units
are all neutral; not a single unit has a favorable association
between recidivism and outcome on probation. The one
unit which had previously disclosed a favorable outcome for
those persons with one previous incarceration, under this
new analysis, where all recidivists are combined into one
group, indicates a neutral probation outcome. With such
consistent indication from diverse probation units widely
scattered throughout the country, it can be said that there
is a significant association between recidivism and an un-
favorable outcome on probation.

TABLE XXIII.—00mpamtz've outcome on probation of recidivists and
nonrcoz‘drivists

 

 

 

 

N0, N o
prev1- . -_ previ- .
Probation unit .ous R3551? Probation unit ous Recxdi-
incar- incar- VIStS
ceration ceration
Arizona, Maricopa County. N N New York City, court of
California, Los Angeles_-_- F U general sessions .......... N N
Colorado, Denver ......... N N New York, Kings County- F U
District of Columbia ...... F U New Jersey, Essex County F U
Illinois, Cook County ..... F U Ohio, Hamilton County--- F U
anm _ N N Ohio, Cuyahoga County-- F U
Minnesota, H e n n e p 1 11 Pennsylvania, Allegheny
County ................. N N Coun ................. N N
Minnesota, Ramsey Coun- Pennsylvania, Berks
....................... F U Co unyt y--_-------------_ N N
Missouri, St. Louis ........ . N N Rhode Island .............. F U
Maryland, Baltimore ------ N N Vermont .................. F U
Massachusetts, Springfield- F U Wisconsin State Board of
Massachusetts, Sufiolk Contro ------------------ , F U
oun _________________ F U Wisconsin, Milwaukee_--_ F U
New York, Erie County_-- F U

 

 

 

 

 

 

 

Summary—The results of the analysis of 19,171 proba-
tion cases in 24 probation departments show that there was
a significant association between recidivism and outcome on

7 3115—39—v0L. 11—26

392

probation. The findings are most significant when proba-
tioners with no records of previous incarcerations are con-
trasted with all cases showing some previous incarcerations
regardless of their number. In brief, the analysis shows
that:

(1) In 16 out of 24 units the outcome on probation of
persons who had not previously been imprisoned was sig-
nificantly more favorable than that of the combined group
of all other cases.

(2) The outcome in 12 departments was unfavorable for
at least one of the recidivist groups.

(3) When the nonrecidivist group is contrasted with the
known reoidivists, excluding the unknowns, 15 departments
show a favorable outcome for the former and a signifi-
cantly unfavorable outcome for the latter.

(4) It is not so evident that there was any difference in
the outcome of reoidivists based on the number of prior
commitments. However, the absence of a definite trend
indicating increased violations for the more recidivistic
may be due to the small number of persons allowed proba-
tionary treatment whose records revealed a large number
of incarcerations.

It should be appreciated that the cases wherein a previous
known history of crime existed at the time probation was
granted, very probably represent a selected group of recidi-
vists because, it is reasonable to assume, only the more prom-
ising reoidivists were granted probation. Hence, the cases
included in the foregoing anaylses represent a better than
average type of recidivist. Despite this relatively more
careful selection, these cases show a marked tendency to vio-
late more frequently than persons with no previous criminal
history. However, even though reoidivists were carefully
selected, persons with a history of previous incarceration
had a less favorable outcome on probation than those with
no history of incarceration.

However, the data do not demonstrate that reoidivists, in
every case, are less responsive to probation treatment. Al-
though the analyses indicate that persons with a known
history of criminal activity are more inclined to violate
the terms of the probationary release than offenders who

393

have not been incarcerated before, the conclusion does not
follow that the former should never be granted probation.
A better answer to the problem would be that recidivists
need special and positive supervision if they are to be
released on probation.

NATURE OF OFFENSE COMMITTED

Aside from the public attitude toward certain offenses,
the statutory provisions denying probation to certain of-
fenders solely because of the type of crime committed seem
to be based on the theory that the nature of the crime is
indicative of future behavior; that persons convicted of cer-
tain specified crimes cannot be granted probationary treat-
ment because the fact of having committed the particular
offense conclusively establishes that they are not amenable
to probationary treatment. In this section the nature of
the offense of which the probationer was convicted will be
related to outcome on probation in order to determine
whether there is any indication that the type of offense is
associated with behavior during the probation period.

The standard classification of offenses adopted by the
Bureau of the Census and the Federal Bureau of Investi-
gation was used in cataloging the offenses. The offense
groups used in the present analysis are as follows: Criminal
homicide, robbery, assault, burglary, larceny, forgery and
counterfeiting, sex offenses, carrying deadly weapons, non-
support or neglect of family, motor vehicle law violations,
disorderly conduct and drunkenness, liquor law violations,
and all other offenses. The larceny group was further sub-
divided into larceny, auto theft, embezzlement and fraud,
and possession of stolen property. Each offense group, it
will be observed, embraces a number of specific crimes. In
other words, the offense classification is not synonymous
with the statutory definition of the crime which bears the
same name. For example, the burglary classification in-
cludes all offenses wherein any building or structure was
broken into or entered with the intention of committing a
felony or any larceny therein at any time, either day or
night. Moreover, attempts to commit burglary and assaults

394

with intent to commit burglary were included in this
group.” '

Table XXIV shows the percentage distribution by of—
fenses for 24 probation units representing 19,171 cases.
This table reveals that the greatest proportion of proba-
tioners were convicted of offenses within the larceny and
burglary classification, these two offense groups accounting
for more than 50 percent of the cases in 13 of the 24: units.
The units difi'er Widely in the percentage distribution for
other types of offenses. Thus, in the Los Angeles, Calif.,
Springfield, Mass, and Rhode Island departments more
than 20 percent of the probationers were convicted of motor
vehicle law violations; on the other hand, in some units
only a very small proportion of the cases fell within this
group. The proportion of sex ofl‘enders released on pro-
bation into the custody of these 24: departments varied from
a fraction of 1 percent to 16 percent. The distribution of
probationers into these offense groups does not necessarily
represent the practice for the State in which the particular
department operates. The criminal jurisdiction of the
court which the department serves may be limited to cer-
tain crimes; hence, caution must be exercised in interpreting
the significance of the percentage distributions in table
XXIV.

12For a detailed description of the standard classification, see Judicial
Criminal Statistics 1935 (U. S. Dep’t Commerce, 1937) 108.

395

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396

Table XXV shows the results of the statistical analysis
relating the offense committed to outcome on probation.
This table reveals no universal relationships. For many
of the offense groups for which some units had an unfavor-
able outcome on probation, other units show a favorable
outcome on probation. For example, in two units robbery
was favorably associated with outcome on probation while
in one unit robbers had an unfavorable outcome. In six
units burglary shows an unfavorable outcome on probation,
although in one unit the conduct of burglars was favor-
able. In 7 out of 15 departments with a sufiicient number
of cases to permit analysis, the outcome of offenders against
the motor vehicle laws was favorable and in no unit was
it unfavorable. Sex offenders had a favorable outcome in
4 out of 19 units and an unfavorable outcome in none.
Violators of the liquor laws had a favorable outcome in
three of the six departments where the number of cases was
sufficient to make an analysis. The crimes which seem to
Show the most unfavorable outcome on probation are lar-
ceny, auto theft, and embezzlement and fraud. In 7 of
the 24 departments the outcome of probationers in the
combined larceny group was unfavorable. For auto theft,
3 of the 14 units where there was a sufficient number of
cases to make an analysis show an unfavorable outcome on
probation and the remaining units disclose a neutral out-
come. For embezzlement and fraud 4 of 15 units reveal
an unfavorable outcome 011 probation, while 1 unit shows
a favorable outcome, and the remaining 10 a neutral out-
come.

TABLE XXV—Relationship of grouped ofienses with outcome on probation

397

 

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1 Number of cases less than 10.

398

There is some indication that the conduct of probatione
who have been convicted of offenses. against the person '
better than the behavior of offenders found guilty of pro
erty offenses. Probationers in the assault and sex offen
classifications were associated more frequently with favo
able outcome than offenders in the burglary or larcen
groupings. However, the relationships are most frequentl
neutral, and in some cases reversals occur. On the whol
the type of offense did not bear any universally significa
relationship to behavior during the probation period.

In addition to relating the offense for which probati
was granted to outcome on probation, an analysis was ma
to determine whether violators tend to revert to the sai
type of crime. That is, when probationers violate by co
mitting a new offense, do they tend to return to the sa
kind of crime as the type for which they had previous
been convicted? This analysis was made for Los Angel
Calif; Wisconsin State Board of Control; Essex Count
N. J .; Suffolk County, Mass; and Rhode Island.

The data for Los Angeles, Calif, shows that those prob
tion violators convicted originally of burglary, larcen
forgery, and counterfeiting had a tendency to return to t
same type of crimes on probation. This tendency was mo
marked for burglary. For this crime 34 percent of tho
cases who violated on probation and were previously co
victed of burglary committed burglary on probation.
the other hand, only 11 percent of the probation violato
who had originally been convicted of robbery committ
burglary on probation, and 12 percent of those original
convicted of larceny committed burglary on probation.
similar tendency was shown for larceny; 46 percent of t
probationers whose original offense was larceny and w
violated on probation committed larceny While on prob
tion. This percentage is significantly higher than th
shown for any of the other crimes. Twenty-one percent
those probationers who had originally been convicted
motor vehicle law violations and who subsequently violat
the terms of release by committing a new offense, aga
were implicated in motor vehicle offenses. This percenta
is significantly higher than the percentage of violators

3-99

any other offense group who committed motor vehicle law
violations on probation.

The results of the analysis for Rhode Island were not as
significant as they were for Los Angeles, Calif., because of
the smaller number of cases involved. However, they re-
vealed a distinct tendency for the burglars to return to
burglary on probation and for those convicted of larceny
to revert to larceny on probation.

The data for Suflolk County, Mass, also show that per-
sons convicted of burglary and larcency who subsequently
violated probation were inclined to return to the same type
of crimes. The same situation prevailed in Essex County,
N. J. Here there was a sufficient number of cases to indi-
cate that the assault cases, in addition to the burglary and
larceny cases, had a tendency to revert to the same type
of crime. The statistics for the Wisconsin State Board of
Control show essentially the same tendency of probationers
to commit the same type of crime. The cases for Wisconsin
were sufficient in number to indicate that, in addition to
burglary and larceny, forgery and sex offenses are crimes to
which probation violators returned.

Although the analysis presented at the beginning of this
section does not disclose a significant universal relation-
ship between the offense and outcome on probation, the ten-
dency for reversion to the same type of crime may be of
some significance. Although the crimes themselves are not
indicative of the likelihood that a criminal will violate on
probation, this much may be said: When persons convicted
of certain crimes do violate on probation, the crimes com-
mitted will tend to be the same as those for which they
had been previously convicted.

Summary—The analysis of 19,171 cases in 24 probation
departments show that the offense for which probation was
granted had no universal significant relationship to out-
come on probation. However, analysis of the types of
;crimes committed by. probation violators indicates that
there was a marked tendency toward reversion to the same
type of ofl’ense. Briefly, the results may be summarized as
follows:

400

( 1) Probationers convicted of offenses in the burglary
and larceny classifications had an unfavorable outcome on
probation in 6 (out of 23) and 7 (out of 24) departments,
respectively. However, in one unit burglars had a favor-
able outcome.

(2) Sex offenders and persons convicted of assault had
a favorable outcome in 4 and 5 units, respectively, out of
19 departments. In 2 departments, however, the outcome of
offenders in the assault group was unfavorable.

(3) In 7 out of 15 departments, violators of motor vehicle
laws had a favorable outcome on probation.

(4-) Most frequently, the relationship between offense
and outcome was not significantly favorable or unfavorable.

(5) When probationers violated the terms of release by
committing a new offense the tendency was to commit a
crime within the same offense classification as the offense
for which probation had been granted.

In light of the findings, there seems to be no particular
justification for the statutory provisions excluding per-
sons convicted of certain offenses from probation. While
in some few departments there is an indication that pro-
bationers in the burglary and larceny offense groups had
an unfavorable outcome, these results were not universal
and therefore do not warrant the rigid statutory exclusion
found in many jurisdictions. In the great majority of in—
stances, the nature of the offense does not appear to be sig—
nificantly associated with outcome on probation. However,
when violation does occur, probationers seem inclined to re-
turn to a crime similar in nature to the original offense.

STEADINESS OF EMPLOYMENT

Administrators and students of probation everywhere
recognize that suitable and regular employment during and
after the probation period is one of the primary aids of any
rehabilitative program. Every effective probation depart-
ment realizes that continued idleness does not lead to satis-
factory readjustment in the community; hence, strenuous
efforts are made to obtain employment for probationers. It
is the purpose of this section to examine the relationship
between employment and conduct during the probation

401

period in order to ascertain whether the degree or steadiness
of employment is significantly associated with the behavior
of probationers.

The extent or degree of employment during the probation
period may be measured in a variety of ways. For exam-
ple, the total number of months the probationer was em-
ployed or the amount of his earnings during the period
might have been used. However, the measure used in this
section is termed “steadiness of employment” and is defined
as that propOrtion of the probation period during which
the probationer was actually employed from the time ofi
release on probation to the time of discharge or revocation.
Thus, if a probationer had a probation period of 6 months
and was employed 3 months, his “steadiness of employ-
ment” would be 50 percent. The categories used in this
analysis are “no employment,” “less than 50 percent,” “50
percent or more but less than 100 percent,” “100 percent,”
“inapplicable” and “unknown.” The first four categories
are self-explanatory. The “inapplicable” group includes
those cases for which the term “steadiness of employment”
would be meaningless: Relief work, part-time employment,
and odd jobs. The “inapplicable” group also includes those
cases which, for any reason, were immediately incarcerated
after release. The “unknown” group contains those cases
for which there was no information concerning employment.

The data for 19 of the 24 units analyzed, representing a
total of 14,385 cases, were sufficiently complete to permit
an analysis of the relationship between steadiness of em-
ployment and outcome on probation. Table XXVI shows
the proportion of cases which fell in each of the categories
of “steadiness of employment,” as defined above, for the
19 units. It will be seen that the percentages for the “no
employment” group range from 6 percent to 20 percent of
the total cases considered for each unit. The “inapplicable”
and “unknown” groups include a large proportion of the
cases studied for most of the probation units. These groups
will be studied later to determine what effect they may
have had on the analyses.

402

TABLE XXVI.——Percentage distribution of all cases, by degree of

 

 

 

 

 

 

 

 

employment
Percentage distribution of total cases
50 per-
- Total Un<
Pr obation unit cases No Less 033,221. 100 per- Inap- known
employ- than 50 less ’ cent plica-
ment percent than 100 ble
percent
District of Columbia ........... 959 4 11 40 16 24 5
Illinois, Cook County .......... 1, 578 16 22 23 10 26 3
Maryland, Baltimore .......... 125 11 19 16 20 20 14
Massachusetts, Springfield ..... 385 6 10 9 10 18 47
Massachusetts, Suffolk County- 598 15 10 11 15 30 19
Minnesota, Ramsey County--- 292 7 2 32 12 5 15
Minnesota, Hennepin County- 328 7 23 26 15 18 11
New Jersey, Essex County ..... 962 20 4 6 15 50 5
New York, Erie County ....... 384 6 14 17 21 27 15
New York, Kings County _____ 1, 456 10 7 18 21 39
New York City court of gen-
eral sessions .................. 415 10 16 26 16 25 7
Ohio, Cuyahoga County ....... 826 4 28 30 3 8 27
Ohio, Hamilton County ....... 361 12 16 13 12 31 16
Pennsylvania, Allegheny
County ______________________ 1, 924 36 5 4 11 39 5
Pennsylvania, Berks County-- 301 16 20 21 17 19 7
Rhode Island 263 7 15 11 5 40 22
Vermont 439 6 18 34 26 14 2
Wisconsin State Board of
Control 1, 964 6 21 33 20 16 4
Wisconsin, Milwaukee County- 825 9 32 12 14 2.6 7
Total -------------------- 14, 385

 

 

 

 

 

 

 

 

 

 

Table XXVII indicates the result of the statistical analy-
sis for the 19 probation units. From this table it appears
that 16 of these 19 units had an unfavorable outcome for
the “no employment” cases, while the other three had a
neutral relationship with outcome. In no department was
the outcome of the totally unemployed group favorable.
On the other hand, the probationers who were employed
for the entire probation period had a favorable outcome
in 13 units. In no instance was the outcome of the fully
employed unfavorable. The probationers who were em-
ployed less than 50 percent of their probation period had
a favorable outcome in two units, a neutral outcome in 14
and an unfavorable outcome in 3 departments. For those
cases who were employed 50 percent or more of their pro-
bation period, eight units disclosed a favorable outcome
and eleven a neutral outcome on probation.

403

TABLE XXVII.—Outcome on probation, by degree of employment

 

50percent
_ Less 100 per- .
Pllloiin‘iignt than 50 tgeiiisoeriiif- cent em- 123%??- Unknown
percent ployment ployment

Probation unit

 

District of Columbia .......
Illinois, Cook County ......
Maryland, Baltimore ........
Massachusetts, Springfield--
Massachusetts, S uf to l k
County ...................
Minnesota, Hennepin
County ...................
Minnesota, Ramsey County
New Jersey, Essex County--
New York Erie County .....
New York, Kings County---
New York City, court of
gen eral sessions ------------ _
Ohio, Cuyahoga County----
Ohio, Hamilton County- - - -
Pennsylvania, Allegheny
County -------------------
Pennsylvania, Berks Coun-

ty-
Rhode Island ---------------
Vermont
Wisconsin State Board of
Control ...................
Wisconsin, Milwaukee
County -------------------

 

 

w22dd 2 2222
@2222 2 2www

 

w2 d de d2222 2 wddd

C1 C1 ZCIZ C1 ddd ClClClCIZ Ci dddd-

w w @22 w 22% w2www w Zane
2 2 22% u 222 22222 2 @222

Z d 222 Z ZHZ

2 w 222 w ww2

2C1

 

 

 

 

 

 

 

1 Number of cases less than 10.
Table XXVIII presents a recapitulation of these results:

TABLE XXVIII.—Oompamtive outcome on probation, according to
degree of employment

 

 

 

Degree of employment U N F Total
No employment_ 16 3 0 19
Some employment, but less than 50 percent- ------------ 3 14 2 19
50 percent or more, but less than 100 percent ............. 0 11 8 19
100 percent 0 6 13 10

 

 

 

 

 

 

From table XXVIII it is evident that there was a def-
inite increase in the number of units showing a favorable
outcome with an increase in the proportion of the proba-
tion period that the subject was employed.

Further indication that with an increase in the propor-
tion of time spent in employment there is a decrease in the
number of violations on probation is revealed by use of an
“analysis by rank.” Table XXIX gives the results of
ranking the violations of probation. The group with the
highest violation rate was assigned the rank of one, the
second highest group, the rank of two, and so forth. It

.404:

will be noticed that in every department the totally unem-
ployed group had the highest violation rate, in other words,
the rank of one. With only five exceptions, the probation-
ers who were employed during the entire probation period
rank fourth and had the lowest violation rates on proba-
tion. Probationers who were employed less than 50 per-
cent of the probation period had the second highest viola-
tion rate in 16 of the 19 probation units. Finally, those
cases who were employed more than 50 percent of the
probation period had next to the lowest violation rate in
14 of the 19 units. Application of the statistical test of
significance indicates that the trend of these percentages is
significant; that is, with an increase in employment, there
is an indication of a decrease in the relative frequency
of violation.

The significant results thus far revealed by the analyses
of steadiness of employment might have been affected by
the “inapplicable” and “unknown” groups, which represent
from 16 to 65 percent of the cases. Moreover, the defini-
tion of “failure” included both violations by conditions and
violations by offense. This broad definition of failure,
which includes violations by conditions, might have af-
fected the results since it is the policy of some probation
departments to impose as a condition of probation the re-
quirement that the probationer be employed. The lack of
employment, therefore, might have been a basis for de-
claring a probationer a failure. Therefore, a new analysis
was made, with the unknown and inapplicable groups ex-
cluded from the analysis and with the definition of failure
limited to violations by a new offense.

405

TABLE XXIX—Relative frequency of violations on probation, by
degree of employment1

 

50 percent
to 100 per-
cent em-
ploy-
ment

100 per-
cent em-
ploy-
ment

No em-
ploy-
ment

Less than
50 per-
cent

Probation unit

 

 

 

District of Columbia
Illinois, Cook County
Maryland, Baltimore
Massachusetts, Springfipld

Massachusetts, Sufiolk County ..................
Minnesota, Hennepin County ...................
Minnesota, Ramsey County .....................
New Jersey, Essex County .......................
New York, Erie County
New York, Kings County _______________________
New York City, court of general sessions .........
Ohlo, Cuyahoga County
Ohio, Hamilton County--
Pennsylvania, Allegheny County ................
Pennsylvania, Berks County ____________________
Rhode Island

Vermont

Wisconsin State Board of Control ________________
Wisconsin, Milwaukee County

 

 

 

 

 

 

 

 

 

 

HHHHHHHHHHHHHHHHHHH
NNMMD‘BMNNNAODMIOMNMNMN
wwwwmwewwwtcwwwwmpww
bfimwwfiwwwwmmpwwwwhp

1 Rank of 1 indicates highest violation rate, rank of 2, second highest, etc.

The results of this new analysis are set forth in table
XXX which shows that 14 of the 19 units had a signifi-
cantly unfavorable outcome for those probationers who were
not employed at all during the probation period. Proba-
tioners with full time employment (i. e., 100 percent em-
ployed) had a favorable outcome in 12 units. The results
are of great significance, since they indicate that the origi-
nal results as set forth in table XXXII are not materially
affected by the omission of the unknown and inapplicable
groups, or by a changed definition of failure.

TABLE XXX—Outcome on probation, by degree of employment, based
on offense violations only

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

N L th 50 pglicent 100 per-
Probation unit 0 em- ess an em oy- cent em-
ployment 50 percent mggt‘gr pl oyment
District of Columbia U N N F
Illinois, Cook County U N F F
Maryland, Baltimore- U N N N
Massachusetts, Springfield N N N N
Massachusetts, Suffolk County .................. U N N F
Minnesota, Hennepin County ................... N U N F
Minnesota, Ramsey County ..................... U N F N
New Jersey, Essex County U N N F
New York, Erie County U N N N
New York, Kings County-_--__----._ ____________ U N F F
New York City, court of general sessmns ......... U N N F
Ohio, Hamilton County- U N F N
Ohio, Cuyahoga County U N N N
Pennsylvania, Berks County .................... N N N N
Pennsylvania, Allegheny County ................ U N N F
Rhode Island- N N N F
Vermont N N N F
Wisconsin, Milwaukee“ U F N F
Wisconsin State Board of Control ________________ U N N F

 

 

406

Summary—The results of the analysis of 14,385 cases in
19 probation departments show thatiprobationers who were
unemployed were universally more likely to’ violate the
terms of their release than probationers who were steadily
employed during the entire probation period. The signifi-
cance of employment as a factor associated with outcome on
probation is apparent when the following findings are con-
sidered.

(1) In 16 out of 19 departments the outcome of the
totally unemployed probationers was unfavorable. In no
instance was the outcome of this group significantly
favorable.

(2) The outcome for the probationers who were em-
ployed throughout the probation period was significantly
favorable in 13 departments.

(3) In every department the totally unemployed group
had the highest frequency of violation, whereas in 14 de-
partments the fully employed group had the lowest rate of
violation. Probationers partially employed violated less
frequently than the unemployed, but more frequently than
the fully employed. In other words, the data reveal a
distinct trend; with an increase in degree of employment
there is an indication of a decrease in the relative frequency
of violation.

(4) When violations were limited to new offenses and the
unknown and inapplicable groups were excluded from the
analysis, the results were not materially altered, the out-
come for the totally unemployed was unfavorable in 14
departments whereas the outcome for the fully employed
was favorable in 12.

On the whole, the results of the analyses in this section
indicate that the emphasis placed upon steady employment
throughout the probation period is entirely warranted.

CONCLUSIONS

The analyses in the preceding sections, based on more
than 19,000 cases, clearly indicate that certain character-
istics of probationers are associated with their conduct on
probation. Although the six factors studied: namely, race
and nativity, age, marital status and number of dependents,
recidivism, nature of offense committed, and steadiness of
employment, do not exhaust all the possible factors which

407

are associated with probation outcome, the statistical
analyses indicate that at least some of these factors must be
given careful consideration before and after probation is
granted.

In this study a factor is considered important when simi:
lar significant relationships between that factor and proba4
tion outcome are found in many probation departments.
Since each of the 24 departments studied is an independent
agency, the analyses are equivalent to 24 independent
studies. Each department operates under different adminis-
trative policies and the circumstances under which proba-
tioners are released and the conditions they must observe,
vary widely. It is obvious, therefore, that a factor found
significant for such different units is of greater importance
than one which is significant only in one or two units.
Hence a factor is considered of greatest importance in its
bearing on probation outcome when consistent significant ‘
relationships are found for this factor in a great number of
probation departments. It must be borne in mind, however,
that the number of cases in each unit varies and that a
significant relationship based on a few cases cannot be
considered equivalent to a significant relationship found
for a large number of cases. Therefore, the number of
cases in the units must be taken into consideration before
arriving at the comparative importance of the six items
analyzed.

On the basis of this test of importance,5 steadiness of
employment during the probation period is the most im-
portant factor in its bearing on probation outcome The
unemployed probationers had a significantly unfavorable
outcome in 16 of 19 units, while the fully employed proba-
tioners had a significantly better record in 13 of these units.
Moreover, there was a marked decrease in the frequency
of violation as the degree of employment increased. In
every department the totally unemployed group had the
highest rate of violation, whereas the fully employed group
had the lowest rate in all but five units. Because of the
consistent significant relationships found for nearly all de-
partments, there seems to be little doubt that providing
steady employment during the probation period will lead to
a marked decrease in probation violations.

73115—39—VOL. II——-27

408

The presence or absence of a history qumprevious inc
ceration is of almost equal importance. \Erobationers w
had not previously been incarcerated had a uniformly bet
outcome on probation than offenders who had alrea
served one or more terms in penal or correctional instit
tions. ?In 15 out of 24 departments, comprising more th
75 percent of the cases conside1ed,1ecidivists had w 01
behavior records on probation than persons whose case h
tories revealed no prior commitments. However, ev
though the data indicate that recidivists were more inclin
to violate the terms of probation, it is by no means cl
that all second and third ofienders are unsuitable for p
bationary treatment. It may be that current methods
selection and supervision need to be revised to counter
the more pronounced criminal tendencies of recidivists.

Of lesser importance in their hearing on probation 0
come are the factors of age, 1ace and nativity, and mari
status. However, when significant relationships betw
these factors and outcome on probation were found,
relationships were consistent.

The analysis indicates that probationers under 25 ye
of age violate more frequently than individuals over
After the age of 35 there was no appreciable decrease in t
frequency of violation 011 probation. The analyses a
disclose that those under 20 years of age are more likely
violate by committing a new offense while on probati
whereas those 85 and over are less likely so to violate.

Negroes had an unfavorable outcome in 5 ou_t_.of 18
partments. In the majority of units, however, ‘the data
not show significant differences between the 1aces
tivity seems to be even less unp01 tant than race. Forei
born whites had a more favorable outcome than native-b
whites in three out of eight probation departments. Beca
of the small number of units and cases involved, it can
be said that nativity was or was not of universal importa
as to its bearing on probation outcome.

In regard to marital status and conduct during the p
bation period, the analysis indicates that single individu
violate the terms of probation more frequently than 111
ried persons. However, significant differences in these t-
groups were found in only 9 out of 24 departments.

 

409

vorced and separated probationers were also found to have
had an unfavorable outcome on probationfin 6 out of 24
departments. There is no reason to believe, on the basis
of the data studied, that the conduct of married proba-
tioners with more than one dependent differs from that of
probationers with only wives as dependents. It seems that
married persons, irrespective of the number of dependents,
are inclined to violate less frequently than single, divorced,
or separated ofiendersgj

The nature of the offense committed is the least important
of the items considered. Not only is there an absence of
significant relationships, but in addition some units reveal
a favorable outcome for a particular type of crime, whereas
in other departments the outcome for the same offense group
is unfavorable. There is, however, some indication that pro-
bationers in the burglary and larceny groups had worse
behavior records during probation than other ofienders.
1‘ / Even though the nature of the offense committed does not
“ show consistent significant relationships with outcome on
p1 obation, when probationers do violate the terms of release
by committing a new offense, they tend to return to the
same type of crime for which probation was originally
granted.)

It should be noted that only one of the items considered
in this chapter, namely, steadiness of employment during
the probation period, is a factor which originates and oper-
ates after release has been granted. However, this factor is
the most important of all those considered. The consist-
ently close relationship between steady employment during
probation and a low violation rate suggests that the em-
phasis should be upon circumstances that may be introduced
; into the probation program instead of upon static elements
_ in the past life of the offender. In other words, it is by no
means clear that past events irrevocably predetermine con-
duct on probation. Hence, courts and probation depart-
ments should give careful attention to the employment prob-
lems of the probationer, as well as to the environmental and
family conditions surrounding the released offender, to the
end that the criminal tendencies revealed by a study of the
offender’s history and characteristics may be counteracted.

 

CHAPTER XI
JUDGES AND PROBATION

The attitude of judges in regard to release procedures is
of primary importance in the administration of parole and
probation laws. A judge who is not in sympathy with
probation as a method of treating those convicted of crime,
or a judge who is in sympathy with the principles of pro-
bation but hesitant to apply them in his jurisdiction, be-
cause of inadequate facilities or for any other reason, can.
render a probation law practically inoperative. This is true
because in most jurisdictions the judge, and the judge alone,
has the discretionary power of granting or denying proba-
tion.

Although in most-jurisdictions trial judges are not given
the power to pass directly upon questions of parole, a judge
who is unsympathetic toward parole can through his sen-
tencing practices influence the administration of the parole
law. During the course of this Survey some judges, when
interviewed, frankly stated that they were not in sympathy
with the parole laws of their respective States. Their ob-
jections were various but a very common one was dissatis-
faction with parole laws which permit parole at the expira-
tion of the minimum sentence minus good-time deductions.
Many admitted that in order to defeat the effect of what they
considered a too lenient parole law they followed the prac-
tice of giving heavy minimum sentences, thus assuring that
the prisoner would serve the period of time which the judge
thought he ought to serve, parole law or no parole law. The
result of this all too common practice fosters uncertainty
in the administration of the criminal law and promotes dis-
trust and antagonism between the judiciary and the parole
boards. Commenting on the problem, Judge James T.
Brand, of Oregon, states:

There have been recent discussions among the judges as to

the attitude which they should take in sentencing prisoners
to the penitentiary. Some of them asserted that in pronounc-

411

412

ing a sentence to the penitentiary they specified in the sente
the period of time which in their opinion the defendant sho
be required to serve without regard to the action of
Governor or the parole board. Others asserted that they fi
determined the period which the defendant ought to be
quired to serve and then sentenced him to approximat
twice that period because they knew that the defendant wo
be paroled upon serving half of this term. The result of t
kind of uncertainty is, of course, utterly deplorable.‘
There are judges who look upon the development
parole and probation systems as an encroachment upon
function of the judiciary. The law is now well establisl
that the power to impose sentence may even be taken
tirely away from the court and vested in a sentencing bo
or jury and also that the power of the court to impose s
tences may be restricted by means of indeterminate sente
laws; nevertheless, there is a portion of the judiciary wh'
seems to resent any procedure, though lawfully authoriz
restricting in any way the sentencing powers or practi
of judges. Many of the judges in this group take adv
tage of their position to hamper or defeat the administ
tion of release procedure laws by means of their sentenc'
powers. They represent a small minority, but their unsy
pathetic attitude toward parole and probation is product
of much injustice when their sentences are viewed in co
parison with the sentences of judges who endeavor to ab
by both the letter and spirit of release procedure legislati
A great deal of information showing the attitude
judges toward parole and probation was obtained in
course of this Survey. It is diflicult and in some respe
impossible to present a composite picture of the ideol
of judges as shown by these data, as the material is hig
subjective and had to be based for the most part on int
views with the judges themselves. One of the most seri
limitations of such data is that what judges say in an int
View or in answer to a questionnaire is not necessaril
reliable index of their actual attitudes, of their beliefs, or
their practices. The psychological processes of rationali
tion, the existence of unrecognized prejudices and perso
bias, the influence of political considerations, sensitiven

1 Brand, Probation and Parole (1935) 14 Ore. L. Rev. 406, 408.

 

 

 

413

to any encroachment upon existing power, and a lack of
understanding as to modern criminological methods are
some of the intangible factors that color what many judges
say concerning their attitudes toward parole and probation
as well as what they do.

Nevertheless the responsibility for enforcing the criminal
law system rests to a large extent with the American bar
and judiciary. The fact should not be overlooked that pro-
posals for changes in the criminal-law machinery which do '
not meet with the favor of the bench and bar, especially
with those judges and lawyers affected by the changes, are
often doomed to failure. Therefore, any program seeking
to improve the administration of parole and probation
should take into account especially the views and attitudes
of criminal court judges. Subjective elements entering into
the formation of these views and attitudes do not necessarily
render them valueless, but instead may enhance their sig-
nificance.

Method 0 f collecting Survey data.——In presenting this ma-

. terial on the ideology cf judges relative to probation all
. that is attempted is to set forth and evaluate the impres-

sions formed by the Survey reporters who observed the
practices and interviewed a large number of judges. The
value and accuracy of these impressions depend in a large
measure upon the rapport which was established between
the reporters and the judges interviewed. The staff mem-
bers who collected the data. were carefully selected on the
basis of their knowledge of, and experience in, release pro-
cedure work. There was prepared for their use an inter-

view schedule or questionnaire,2 and the topics in the sched-

ule were discussed with each judge during an interview
lasting from one hour to half a day. In a large number of
instances several interviews were held with a single judge.

In addition to the interviews with the judges, the re-

g“? porters were instructed to observe whenever possible the

’i' work of the judge as he presided over criminal cases and
disposed of offenders convicted of crime. The opinions of

[j the prosecuting attorney, parole and probation officers, and

H law enforcement oflicers concerning the attitudes and prac-

h-

2 See appendix B.

414

tices of the judge were obtained as often as possible.
the basis of the information gained from these source
report was prepared which set forth the staif memb
impressions of the judge’s ideology concerning parole a
probation.

The reporters conducting the interviews were instruc
to obtain their information as to the views of a judge
the basis of observation and indirect questioning, by a
ing questions which would lead the judge to converse fre
on topics that would bring out his “biases and views c
cerning parole and probation.” The technique necessar
varied according to the individual judge and with
skill of the reporter. Sometimes a judge would summon
secretary and dictate answers to the questions on the int
view schedules, stopping in the dictation from time to ti
to elaborate upon a point. However, in most instances
reporters were able to carry out the plan of discussing
judge’s views and theories with him, taking full notes d
ing the interview and then filling out the schedule im
diately after leaving the judge’s chambers.

Reports of interviews with a total of 270 State and F
eral judges contain sufficient information to justify us'
them in this analysis.3 Only judges who presided o
criminal trials were interviewed. They were distributed
follows: 29 United States district court judges, 222 jud
of State trial courts of general criminal jurisdiction,
municipal court judges, and 6 county court judges.

Term of oflice and method of selection—It is gener
recognized that the educational, social, political, and exp
ential backgrounds of judges are important condition
factors in developing judicial attitudes and practices.
cause of the highly subjective nature of the problem i
impossible to determine to what extent these and such ot
factors as the method of selecting judges, the length
their term of office, the salary paid, their legal training,
professional experience influenced the parole and probat

8No reports are included for the States of Mississippi, Montana, Nev
Many of the 270 reports do not contain information on some of the to
covered in the interview schedule.

 

415

ideology of the judges interviewed. However, it probably
will be of interest to the reader to present a brief synopsis
of the information gathered concerning the 270 judges in-
terviewed in regard to the length of the term of office, the
- method of selection, the salary paid, the legal training, and
political background of the judges. One hundred and
seventy-six of the judges representing 37 States were elected
to office by popular vote. The remaining 94 judges were
appointed to their positions, 29 as United States district
judges appointed by the President for life. Table I shows
the distribution of the 270 judges as to length of term of
office and method of selection.

TABLE I.—Jndges interviewed, classified as to length of term of office,
and method of selection

 

 

 

 

 

 

 

 

 

 

 

 

 

Total
Number Number
Length of term of office in years mjilrlndbge‘aars of elected appointed
1- 1 ............ 1
2- 6 2 2
3- _ 3 1 2
g- - 97 93 4
6: I 98 91 i
7- - 4 1 3
8- _ 9 9 ............
12- 3 2 1
Life- - 49 ............ 49
Total--- 270 199 71

 

 

 

 

 

It is seen from table I that over half of the 270 judges
were appointed or elected to their judgeships for a term of
either 4 or 6 years, while 49 of the judges were appointed
for life. In general, judges whose selection rests upon
appointment are given much longer terms in office than
those who are elected.

Salaries—The salaries of appointed judges in this group
of 270 were relatively higher than the remuneration allowed
for elected judges. Over two-thirds of those who were
appointed to their offices received as an annual salary from
10 to 12 thousand dollars, while the salaries of most of the
elected judges ranged from 4 to 7 thousand dollars. Table
II shows the salary range for the judges interviewed.

416

TABLE II.—Salcm'es of Judges interviewed

‘ Numbber of

Annual salary range: judges
Under $2,000 ______________________________ 3
$2,000 to $3,000 ____________________________ 3
$3,000 to $4,000 ____________________________ 7
$4,000 to $5,000 ___________________________ 62
$5,000 to $6,000 ___________________________ 58
$6,000 to $7,000 ___________________________ 44
$7,000 to $8,000 ___________________________ 29
$8,000 to $9000 ____________________________ 12
$9,000 to $10,000 __________________________ 8
$10,000 to $11,000 _________________________ 31
$11,000 to $12,000 _________________________ 12
Not obtained ______________________________ 1
Total ___________________________________ 270

Educational background—The information obtained a
the legal education of 256 of the 270 judges showed 193
be graduates of law schools. Many of the older judges h
degrees from nonstandard law schools, while more than 1
of the younger judges were graduates of standard law scho
which require at least 2 years of academic college w
before starting the study of the law. Most of the 63 jud
who had prepared for the bar by studying in law oflices
never attended college.

Some of the judges were frank to state the belief t
their work on the criminal bench would be greatly impro
if they had a background of some formal training in cri
nology, penology, psychology, and general social scie
courses. There can be no doubt that there are many jud
presiding over criminal courts who are poorly prepared
the very important responsibility of determining what tr
ments should be meted out to offenders. As was pointed
by a number of the judges interviewed, the average ju
finds it necessary to devote so much time to the reading
strictly legal literature and to the preparation of Opini
and to the performance of his trial duties that he has pra
cally no time left to devote to reading and study wh
would broaden his knowledge of crime problems.

However, the saying “a little knowledge is a danger
thing” is just as true in the case of judges as of others.
criminal court judges are to continue in most jurisdicti

 

417

to exercise the power, as they now do, to determine what
treatment shall be given to those convicted of crime, precau-
tions must be taken to assure the public that the judge. has
qualified assistance in securing all of the information about
the offender which is needed before passing sentence. In
this respect a professionally trained probation officer can be
an invaluable aid to the court.

There is a growing feeling even among judges themselves
that the judge is not the person best qualified to determine
the punishment and treatment to which the offender should
be subjected. Many admitted a strong dislike for criminal
court work and mentioned that as practicing lawyers prior
to elevation to the bench, they had avoided criminal cases,
stating that it was not uncommon for a judge to have his
first professional experience with a criminal case after be-
coming a trial judge.

Some of the judges suggested that the work of the judi-
ciary in criminal cases would be greatly improved if more
jurisdictions would provide for criminal law courts to be
presided over by judges devoting their full time to criminal
cases.4 Other judges were opposed to this view, pointing
out that such a plan could be used only in metropolitan
areas where the business of the courts would warrant such
a division of judicial labor. They questioned its advisability
even there because of their fear that such specialization in
the judicial function might lead to more bias and arbitrary
action than is now manifested.

A considerable number of the judges called the attention
of Survey reporters to outstanding examples of what they
considered to be a judicial incompetency. Not much weight
can be given to such attacks by one judge upon another, but

it is interesting to find many judges criticizing those who

4 “In fact the imposition of sentence by judges is merely an historical sur-
vival that probably will be discarded if ever we begin to deal rationally with
crime. A man convicted of crime is a man determined by the legal process to
be socially maladjusted. The trouble may be superficial or it may be grave.
Readjustment may be attained easily or it may be impossible. A procedure
must be devised which will seek in every case to discover the causes behind his
criminal impulse and to apply a remedy that will make unlikely the commis.
sion of more crimes by the same individual. Precisely what form that proce-
dure will take I do not pretend to say; but I hazard the guess that the judge
on the bench measuring out predetermined doses of imprisonment will not be a
part of it.” Ulman, A Judge Takes the Stand (1936) 254. See also: Parmelee,
CriminOIOgy (1926) 329.

418

they feel are guilty of arbitrary sentencing and probatio
practices, bias, and prejudice toward certain types of offen
ers, and of holding “pet theories,” not demonstrable in fac
concerning crime and criminals.

Political influences.—Of the 270 judges, 207 had held p
litical office prior to their judgeships. The most common p
litical office in the training background of the judges W
that of prosecutor, 156 of the judges having had suc
experience.

Thus, for this particular group of judges, at least—an
the group is probably typical of the judiciary of the count
as a whole—a majority had secured some training or cond
tioning in the school of politics before they were elevated
the bench. To what extent this fact tends to make judg
politically conscious in the administration of their judici
functions it is difficult to say, but the interviews and obse
vations which form the basis for this discussion of judici
attitudes toward release procedures definitely created tl
impression that many of the judges are very conscious
the political features of the tenure of their oflice.

Some of them related that a frequent use of probation
them, even though every case was a deserving one, wou
jeopardize their positions at the next election. Accordi
to others, criminological theory and administrative practi
very often do not mix well, because criminological theo
ignores administrative expediency, and those charged wi
the administration of criminal justice simply cannot igno
the many problems of expediency faced by police, prosec
tors, prison officials, parole board members, and all tl
others charged with the task of administering the crimin
law.

Circumstances of mitigation 07' aggravation infl-ucnci
sontcnccs.—As might be expected, the judges did not agr
as to the “leniency” and “severity” factors. However,
goodly number admitted that when certain factors we
present in a case they were inclined to give lenient se
tences.

Table III, a frequency table, sets out the “factors of lei
ency” and the number of judges who recognized that t
presence of one or more of these factors in a given case r
sulted in a more lenient sentence. It is based on the sta

7

, Hrs” HE 53, W

419

ments made by 218 judges, but since some judges men-
tioned more than one of the “leniency factors” the total
number of opinions listed in the table exceeds 218. The
remaining 52 either did not comment on the matter or
simply stated in effect that they took into account “all of
the circumstances which they knew about the defendant,
in addition to the facts in evidence.”

TABLE III—Factors which judges stated tend to produce lenient

 

 

 

 

 

 

 

 

sentences
Leniency factors: Number of judges
Immaturity of defendant 106
Defendant responsible for dependents 71
No record of prior criminality 68
Defendant a woman 31
Defendant makes “a good impression” 27
Crime against property 27
Crime committed without deliberation or premeditation__ 22
Underprivileged childhood 16
Good background 9
Old age of defendant 8

 

It is seen from the table that the largest number of judges
were inclined to be lenient with youthful offenders. How-
ever, many qualified their statements in regard to the “leni-
ency factor of youth” by saying that they had begun to
doubt the advisability of the practice, pointing out that crim-
inal statistics generally show the most vicious criminals to
be very young men, many of them in their teens and early
twenties.

According to some of the judges the mere fact that a
youth has been convicted of his first crime does not in itself
justify the “hunch” that if he were given a lenient sentence

there would be a better chance of his becoming a law-abid-

ing citizen, because in a great many instances the behavior
patterns and psychological make-up of the youthful offender
have become fixed and the fact of youth should not be looked
upon at all as a material factor in disposing of his case.
A few of them expressed the view that lenient sentences
given to youths succeed only in encouraging other young
men to “take a chance” with the law and many pointed out

2 that many youthful offenders are also recidivists, although
. at the time of the sentence that fact may not be known by
l the judge.

420

Many judges in this connection spoke of probation as a
form of leniency showing-very clearly a lack of understand-
ing of the true functions of probation. Probation properly
administered is not a form of lenient treatment of oflenders,
although it is certainly true that the faulty probation pro-
cedure of many courts results not only in leniency but in
a looseness in handling criminals which is dangerous to the
public welfare.

The statistical data on factors influencing outcome on pro-
bation presented in chapter X of this volume indicate that
the offenders in the youthful age groups are not such good
probation risks as offenders in the groups above the age
of 35 years. This conclusion is based on the data showing
youthful offenders to be more inclined to violate the condi-
tions of probation and are very much more inclined to vio-
late the conditions of probation by way of committing new
crimes than are older offenders.

It is impossible to say to what extent this poorer proba-
tion record of youthful offenders is the result of a more len-
ient supervision policy toward them. However, on the basis
of the statistical data of the survey and the observations and
analyses made of probation practices, plus the Opinions of
the judges themselves, it can be stated that many courts are
entirely too lax in dealing with youthful offenders. Senti-
mentality should never be the motive for making use of pro-
bation. Too frequently judges grant probation to danger-
ous young criminals and release them into the custody of
their parents who have long since ceased to have any ef-
fective control over them. When youthful offenders are
placed on probation they should seldom be released into
the custody of their parents. Rather the court should take
precaution to see to it that a careful program of supervision
is worked out by competent probation officers who will hold
them to the terms and the conditions of their probation re-
lease. Probation properly administered can be used to
great advantage in rehabilitating many types of offenders
including youthful offenders. On the other hand, releasing
youthful offenders on probation without careful supervision

(“wituiwm’ ‘ Wyn-u '.':,.:}u:. a; .' . m . .mr':

 

 

encourages violations of the terms of probation. When

those violations go undetected because of lax supervision or

421

are handled in a lenient fashion probation may become
rather an ally of crime than a crime preventive.

Many of the judges said that they find themselves in a
dilemma when called upon to sentence young offenders be-
cause the conditions prevailing in most prisons are harm-
ful, especially to young offenders. At the same time they
hesitate to grant probation because of a lack of probation
facilities, many judges not having the assistance of a proba-
tion officer. Under such circumstances the judge who wishes
to place an offender on probation must make use of volunteer
probation officers or ask other law enforcement officers, such
as prosecutor, police, or sheriff, to serve as sponsors.

Such arrangements at best are makeshift affairs and are.
partly responsible for viewing probation as a form of le-
niency. There is no satisfactory substitute for competently
trained probation officers endowed with authority to en-
force a thoroughgoing program of probation supervision.“
Such officers can make good use of community organiza-
tions and volunteers who are willing to help carry out a
carefully balanced probation program, but complete reliance
upon volunteer probation service is not, as a general rule,
in the best interest of either the offender or the public. As
probation supervision for the most part involves good case-
work technique, a volunteer probation officer who is not
properly trained may do much more harm than good.

Table III also shows that 70 percent of the judges listed
“responsibility for dependents” as one of the factors tend-

‘ “It must first be conceded that no system of volunteer service by untrained
workers is anything more than a makeshift; it is not a permanent solutiOn of
the problem, but in my own court we have obtained results which are aston-
ishingly favorable through a cooperative effort, in which the court and the
American Legion have joined hands in the great work of salvaging the lives
of yOuthful offenders. The commander of the American Legion Post was
appointed chief probation officer. A list of members willing and qualified to
serve was furnished to the court. From time to time, as cases arose, new
probation officers were appointed and sworn and to each was assigned one
probationer who was required to report regularly to his office. This system
has been followed out for a period of several years, with the result that a.
number of young men, who might otherwise have gone wrong, have been care-
fully and intelligently supervised by competent volunteer officers and have
apparently accomplished a complete reformation. Until such time as the State
of Oregon is ready and able to establish a permanent and scientific probation
department, I know of no system which will work more successfully than this.
Young offenders, when advised that they are being paroled to an officer of the
American Legion, are impressed and accept the supervision gratefully and with
beneficial results.” Brand, supra note 1, at 413.

422

ing to produce lenient sentences. However, as many of
them explained, they were influenced by it only when the
crime was not a serious one and they believed the offender
would be a good probation risk because of his responsibili-
ties to his dependents. The statistical data of the Survey
on factors influencing outcome on probation 5 tend to sup-
port this opinion. As generally recognized by the judges,
one factor such as this is not in and of itself sufficient
ground for granting probation or for giving a light sen-
tence. Nevertheless, in many instances an offender with
family ties and responsibilities is much more likely to make
a successful adjustment on probation than the transient or
“lone wolf” type of offender.

Furthermore, some of the judges approved the use of pro-
bation in cases of ofl'enders with dependents whenever they
felt it was safe to do so because sending the criminal to
prison inflicts great hardship upon the family sometimes to
the. point that the family is punished more than the pris-
oner. Probation in such cases often results in keeping the
family off the relief rolls, thereby saving money for the
county.

What is more important still, probation, with the aid of
a competent probation officer, often prevents other members
of the same family from committing crime because the at-
tempt to rehabilitate the probationer often results in help-
ing an entire family to readjust itself. Without doubt,
broken homes resulting from imprisoning the head of the
family or a member of the family must be taken into account
in any program of crime prevention. Some of the judges
were very critical of colleagues who failed to make use of
probation, especially when its use would keep a home to-
gether, as in the cases of men with families when the crime
committed does not indicate a viciousness on the part of the
offender which would endanger the public if he were re—
leased on probation.

The third most common “leniency factor” mentioned by
the judges was “no record of prior criminality.” Only 68
of the judges mentioned the lack of known previous offenses
influencing them toward lenient sentences. The statistics

°See ante, chapter X.

423

of this Survey dealing with factors influencing outcome on
probation indicate very clearly that first offenders make a
better record on probation than recidivists, and that when
the prisoner is a first offender who has reached the age of
35 he is a better probation risk than a first offender who
falls in the younger age groups. Inasmuch as 106 of the
judges are inclined to be more lenient with young offenders,
especially if they are first offenders, it is surprising that
only 68 judges listed “no record of prior criminality” as one
of the leniency factors, particularly since older first offend-
ers seem to make a better record on probation than do either
young first offenders or recidivists.

Only 31 of the judges were inclined to give more lenient
sentences to women than to men, although statistics gener-
ally, including the State crime surveys, indicate very clearly
that women receive much more favorable treatment than
men when measured in terms of sentence disposition. Inci-
dentally, the same is true of the treatment accorded women
by parole boards. In fact, all along the line of prosecution,
from the point of initiation to final disposition, women
receive much more lenient treatment than men.7

Twenty-seven of the judges stated in substance that they
were inclined to give a more lenient sentence if the de-
fendant made a “good impression” during the trial. Just
what they meant by the term “good impression” is not
known. However, a fair interpretation would probably be
that they were inclined to give the defendant the benefit of

7 “This difference (between sentences given to men and women) demonstrates
rather clearly the fact which has been noted throughout this study; namely,
that the courts tend to discriminate in favor of women in the disposition of
cases. " * * The data show that after conviction women received a much
larger proportion of suspended sentences than men and that in those caSes
where jail sentence was imposed the women received much lighter sentences
than did the men.” Morse and Beattie, The Administration of Criminal
Justice in Oregon. (1932) 50.

“Woman is favored in the repression and treatment of crime, thus lowering
somewhat the statistics of her criminality. The victims of female criminals
are not so likely to complain against them as they would be to complain
against male criminals. The detected female criminal is frequently not prose-
cuted so vigorously as the male criminal. When brought to trial she is more
likely to be acquitted. Men, though stern towards culprits of their own sex,
are liable to display sentimental weakness towards the female criminal. If
she were tried by women this Would probably not be the case. Even when
convicted she is less likely to be sent to prison, since judges usually try if
possible to avoid sending a woman to prison and to deal with her more
leniently.” Parmelee, Criminology (1926) 243.

73115—39—von. n 28

 

424

the doubt if his conduct, attitudes, and personality as ob— '

served during the trial seemed to justify the assumption
that he was capable of being rehabilitated. It is, of course, a
very subjective matter but one which probably influences
many judges even though they are not conscious of it or
refuse to admit it.

Twenty-seven judges were not inclined to impose heavy
sentences for crimes against property as contrasted with
crime against the person. However, their comments in
regard to this factor indicate that their leniency is limited
more or less to cases involving petty offenses against prop-
erty, such as larceny of goods of small value or selling
stolen property.

The other “leniency factors” listed in table III involve
too small a number to justify much comment. A few
among the 22 who were inclined toward leniency in cases
where the crime was committed without deliberation pointed
out that very frequently there are extenuating circumstances
in the commission of some crimes, such as assault, statu-
tory rape, negligent homicide, which indicate very clearly
that the offender was prompted to act more or less on the
spur of the moment or was induced to some extent by the
injured party to commit the crime.

“Severity factors.”—The judges were much less inclined.
to discuss factors which cause them to give severe sentences
than they were to discuss factors of leniency. Table IV
sets out the “severity factors” most frequently mentioned.
It is based on statements made by 181 of the 270 judges.

TABLE IV.—Fact0rs which judges stated tend to produce severe

 

 

 

 

 

 

 

sentences
~ Number of
Severity factors: ' judges

Record of prior criminality 75
Crimes against person - 53
Defendant makes unfavorable impression 39
Sex Crimes . 38
Deliberate or premeditated ofienso 29
Mature defendant 25
Crimes against property involving violence 13

It is not surprising that recidivism heads the list of
“severity factors,” but it is rather surprising that only 75

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425

judges admitted giving more severe sentences when the of-
fender is a known recidivist. Of course, the highly sub-
jective nature of the material on which tables III and IV
are based makes them of little value except for showing the
intuitive impressions of judges to be vital factors in de-
termining the sentences which they impose upon persons
convicted of crime.

Thirty-nine were emphatically of the opinion that of-
fenders who commit sex crimes should be given long sen-
tences. Others expressed the view that too many judges
take an emotional attitude toward sex crimes and other
crimes of passion and impose heavy sentences without first
making thorough studies of the caSes.

Pleas and sentencing practices.—Information was sought
as to the extent to which judges think that they are influ-
enced, in their sentencing practices, when the prisoner
pleads guilty, or turns State’s evidence, or makes a plea for
leniency. The information gathered supports the general
belief; namely, many judges are inclined to be lenient in
their sentences when the defendant pleads guilty, thereby
saving the State the expense of the trial.8 One hundred
fifty-eight stated that a plea of guilty in most cases resulted
in their imposing a more lenient sentence than they would
have imposed if the criminal had stood trial. Two other
judges said that a plea of guilty would result in a more

lenient sentence if recommended by the prosecutor, while 16

8“In order to operate at all, a criminal court is forced to give defendants
some degree of leniency in exchange for pleas of guilty. It can only avoid
paying too high a price, and paying the price in an undignified way. A judge
ought not to impose extravagant sentences on those convicted by a jury, to
increase the pressure upon others to plead guilty. Not only would that be
unjust, but it would alienate the jury and defeat its purpose. But a reason-
able penalty has variable limits, and a guilty defendant who puts the state to
the trouble and expense of trial cannot complain if his sentence is not the
smallest within the limits of reasonableness. Given a decent jury, fairly likely
to convict in good cases, even a small reduction upon pleas of guilty from what
might properly be imposed after verdict, recognizing not improperly the claim
of the defendant to clemency upon surrender, will often suffice to induce pleas.

“What a judge ought to avoid is the practice, tolerated at some times and
in some places, of permitting criminal defendants or their counsel to extort
assurances as to the sentence, from the judge or from the prosecutor with the
tacit assent of the judge, as the price of pleading guilty. Almost as bad is
the practice of permitting a defendant to plead guilty with the right to with-
draw his plea if the judge refuses to make a specified disposition agreed to by
the prosecutor. Only inveterate custom could give criminal lawyers the au‘
dacity to make such proposals.” Lummus, The Trial Judge (1937) 48.

426

said that a plea of guilty exercised no influence whatsoever
upon their sentencing practices. Ninety-four of the two
hundred seventy judges made no statements in regard to
the matter.

Many of the judges emphasized that they are much more
inclined to grant probation when a prisoner pleads guilty.
A few of them went so far as to say they almost always
refused to grant probation to any offender who has put the
State to the cost and inconvenience of a trial. There is little
to be said in favor of the all too common judicial practice
of making a plea of guilty 9. condition precedent to the
granting of probation. It amounts in fact to a form of
compromising justice and often goes hand in hand with the
well known practice of prosecutors who promise to recom-
mend a lenient sentence or probation if the defendant will
plead guilty at least to a lesser crime than the one for
which he has been indicted.

The practice of bargaining for pleas of guilty confuses
the guilt-finding process with the sentencing process; it is
subject to grave abuses and cannot be justified by the argu-
ments of saving expense and keeping the dockets cleared.
There is nothing more fundamental to the stability of gov—
ernment than the impartial administration of justice. The
tendency of many judges to permit the compromising of
criminal cases to the point of abuse and, what is worse, to
aid and abet such compromises, indicating by statement or
their record that they will not as a rule grant probation to
anyone who does not enter a plea of guilty, is deserving of
censure. They demonstrate that they do not understand
the true nature and functions of probation.

A plea of guilty does not justify the assumption that the
offender will be a good probation risk. In fact, the pro-
fessional criminal when faced with a strong case against
him usually welcomes an opportunity to plead guilty to a
lesser offense, especially if he has cause to believe that a
lenient sentence or probation will more likely follow his
plea of guilty than if he stands trial. A defendant’s plea
of guilty is no indication of his reformative and rehabilita-
tive potentialities. In most instances his plea rests upon

 

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427

advice of counsel and not upon any desire of the defendant
to cleanse his conscience of guilt by way of confession.°
With some types of defendants a lenient sentence or pro-
bation following a plea of guilty might even increase their
disrespect for the law because they recognize that the bar-
gaining that brought about their plea of guilty involved a
compromise of justice. “Beating the rap” by way of “cop-
ping a plea” to a lesser offense and “begging probation” are
phrases used by the professional criminal in describing his
methods of circumventing the processes of criminal justice.
Probation should rest entirely upon the facts disclosed
by a thorough case-history study of the defendant and not
by the fact that he pleaded guilty, or turned state’s evi-
dence, or pleaded for leniency. Judges should grant pro-
bation only when the case history of the defendant prepared
by a competent probation officer justifies the belief that the
prisoner is capable of rehabilitation under the guidance of
probation supervision. To grant probation on any other
grounds defeats the purpose of probation and justifies the
criticism that in too many instances probation, as adminis-
tered by courts, endangers the safety of the public.
Without doubt the sentencing practices of criminal court
judges are being subjected to more and more criticism.
Much of the criticism is deserved because the sentenc-
ing records of too many judges disclose arbitrary prac-
tices and a “hunch system” of sentencing offenders which
do not instill public confidence in the administration of the
criminal law. The existence of varying standards in the
sentencing of criminals is fraught with serious consequences.
Respect for the administration of the criminal law can
be maintained only as long as the general public has con-

9“But only an innocent like our amateur critic imagines that when one of
them pleads guilty the motive is regret for the crime, and a despairing willing-
ness to pay the penalty. Practically always the motive is self-interest. The
defendant and his lawyer weigh the chances of trial and conviction and the
probable penalty in case of conviction against the probable penalty upon a
plea of guilty. The jury is the only force behind the prosecutor. A few
verdicts of guilty in a row produce a crop of pleas of guilty; a few consecutive
acquittals encourage insistence upon trial. If the prosecutor were compelled
to try the cases in a definite order, and it should become apparent that he
could not get beyond a certain point on the list, he would get no pleas of
guilty in cases that would not be reached.” Id. at 45.

428

fidence that the practices adopted by law administrators,
and judges in particular, are based on sound reason and the
exercise of defensible discretion.

The practice of requiring a plea of guilty as a condition
precedent to the granting of probation is not an exercise of
defensible discretion. This has been clearly pointed out in
a series of cases by the California District Court of Ap-
peals.10 In People v. J ones the lower court refused to hear
an application for probation because the defendant had not
pleaded guilty. In denying the request of the defendant’s
counsel for permission to file an application for probation
the lower court said:

Well, the court will not allow you to do that, Mr. Thompson.
I feel that he [the defendant] has had a fair and impartial
trial. He has submitted the issues in this case to a jury of his
own selection, and he will have to abide by the judgment of
that jury from the facts in the case. When a defendant walks
into my court and pleads guilty and submits the facts to me,
why, then it is time to determine whether he shall have pro-
bation or have punishment in prison, but in a case of this
kind I feel, the jury having given its judgment, that the court
should not take any time to review those facts or to investi-
gate further, or to take into consideration anything at all in
the matter. I believe that that should not be done.

Counsel then pointed out to the court that the probation
law is for the guilty, to which the court replied:

Yes; primarily it is for those who admit their guilt; not,
in my judgment, for those who say they are not guilty. I think
the whole theory of the probation law is to grant its benefit to
those who admit their guilt and who offer mitigating circum-
stances and not for those who still say “I am innocent.” I
think for the man who is innocent after a conviction and
judgment of the court his appeal is to be made to the Gov-
ernor and not to the judge under the probation law. I think
it would rather tend to stultify the system. I think it is too
dangerous a proposition and would involve the courts in too
much labor to give a man two trials. For these reasons that
I have adverted to I will not permit an application for pro-
bation to be filed.

10 People v. Jones, 87 Cal. App. 482, 262 Pac. 361 (1927) ; People v. Miller,
112 Cal. App. 535, 297 Pac. 40 (1931) ; People v. Osterhelt, 125 Cal. App. 723,
14 P. (2d) 140 (1932).

,m;-. v... _

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429
Upon appeal the upper court stated:

In the present case the court entirely departed from the
letter and the spirit of the probation law in refusing to en-

tertain appellant’s application merely because he had not
pleaded guilty.11

In holding that the lower court had indulged in an abuse
of discretion the appellate court stated: 12

It is true section 1203 provides that the court may “in its
discretion” refer the matter to the probation officer for a
report and thereafter “in its discretion” place the defendant
on probation; and no doubt in the ordinary case the exercise
of this discretion would not be reviewed on appeal. But we
are satisfied that the same general rule applies to the dis-
cretion conferred by this section as to the numerous other
cases of discretionary power conferred upon the courts, con-
cerning which the supreme court said in an early case: “The
discretion intended, however, is not a capricious or arbitrary
discretion, but an impartial discretion, guided and controlled
in its exercise by fixed legal principles. It is not a mental
discretion, to be exercised ea: gratia, but a legal discretion, to
be exercised in conformity with the spirit of the law and in
a manner to subserve and not to impede or defeat the ends
of substantial justice.” (Bailey v. Taafe, 29 Cal. 422, 424.)
* * * With an exception to be noticed presently, we think
this rule is applicable to the discretion exercised by the court
in passing on an application for probation. Suppose the court
. should in response to a defendant’s application for probation
say to him, “I do not like the color of your hair—or, you are
of the black race—and for that reason I will not hear your
application.” Would the defendant be obliged to submit to
such conduct without remedy? Such a ruling would clearly be

11People v. Jones, 87 Cal. App. 482, 495—496 (1927).

12 The court stated further: “There remains for consideration the question
whether the order complained of affected the substantial rights of the appel-
lant. We have no doubt that it did. Had the court considered his applica-
tion on its merits, it might, of course, have found that he was not a proper
subject for the benefits of the probationlaw and, as we have just said, we
could not review such a finding, whether expressly appearing or presumed from
the silence of the record; but the court might also conceivably have found to
the contrary and have determined to place him on probation. On reaching the
latter conclusion, it might have suspended either the imposing or the execution
of the sentence; and in either case, on appellant’s complying with the terms
of his probation for the entire period thereof, the court must have set aside
the verdict of guilty and dismissed the information and appellant would have
been thereafter released from all penalties and disabilities resulting from the
offense. (Pen. Code, sec. 1203, subds. 2 and 3). A ruling which deprives a.
party of the opportunity to apply for and perchance to obtain such benefits
unquestionably affects his substantial rights.” Id. at 498.

430

an abuse of discretion because not guided or controlled by
principles established by law therefor, but made with refer-
ence to some criterion not provided for or countenanced by
law. The same is true of the ruling here complained of.
It is based on a ground flatly contrary to the provisions of
the code. Such action cannot be regarded as other than an
abuse of discretion, under any accepted definition of that
term. When such an abuse of discretion occurs a question
of law is presented. In order to review the action of the trial
court here this court needs but to answer the question, “Was
the order based on any ground which the law sanctions?”
and the answer being “No,” a reversal of that action is not
an interference with any discretion vested by law in the trial
court.

Similarly in two other cases the California court held that
a defendant. may ask for probation, and is entitled to like
consideration after a conviction by plea or verdict of guilty.
The court held further that a denial of such consideration
because of the fact that the defendant stood trial rather than
pleaded guilty is an abuse of discretion.13

 

13 “A motion for new trial having been denied, the defendant requested
permission to file an application for probation, which was summarily denied.
He challenges the power of the superior court to deny him the right to file,
and to consider upon its merits, such application. The statute (Pen. Code,
sec. 1203) expressly confers upon the court entire discretion in such cases,
providing that it may summarily deny probation, or, if probation be not denied
that the matter shall be referred to the proper authority for investigation
and report for further consideration. However, in ruling upon the defend-
ant’s request the judge expressed reasons therefor which we think clearly
departed from fixed legal principles to an extent prejudicial to his substan-
tial rights. In response to the motion it was said, in part: ‘If a man wanted
probation, he would come forward and show his good character and things
that ordinarily are considered on probation, and have it inquired into before
the trial. Then you would save the expense of a trial. This way of pleading
not guilty and going before a jury and being convicted, and then coming
forward and asking for probation, I don’t much approve of * * *. There
are cases in which probation could do some good. but it does not do any good
to society to have everybody probated that is convicted, and it ought to be
fixed so that probation is either granted or denied before trial, and obviate the
trial, if the man is of such a character that he is entitled to be put on
probation; not wait until after we have spent several days in the develop-
ment of testimony and have the jury bring in a verdict of guilty, and then
have the judge set aside the verdict of the jury and tell them to go.’

“The language and reasoning in this proceeding was so nearly identical
with previous rulings which have met with disapproval that the judgment
must be reversed for the purposes hereinafter expressed. (People v. Jones,
87 Cal. App. 482, [262 Pac. 361, 368]; People v. F—reithofer, 102 Cal. App.
165. [284 Pac. 484]. In Peeple v. Jon-es, supra, the Supreme Court upheld
the decision of the District Court of Appeal under similar circumstances.
As there said: ‘If the record is silent as to the grounds of the ruling, the
presumption would be, under the general rule as to presumptions on appeal,
that it was founded upon a consideration of the merits of the defendant's

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431

There are comparatively few judges who go so far as those
in the above-mentioned cases as to refuse to consider the
application of an offender for probation unless he has pleaded
guilty. However, in actual practice a plea of guilty is a
very influential factor in obtaining consideration of a re-
quest for probation. Evidence of this is to be found not
only in the statements made by the judges themselves, but
also in statistical studies of the sentencing records of judges.
A recent study of the sentencing practices of judges in 43
Ohio counties for the year 1937 conducted by Ronald H.
Beattie of the United States Census Bureau shows that out
of 3,038 cases in which the defendants pleaded guilty ap-
proximately 44 percent were sentenced to prison while 49
percent were placed on probation. The remaining 7 per-
cent received fines or jail sentences. On the other hand, out
of 587 cases in which convictions were obtained as a result
of trial approximately 78 percent of the offenders were sent
to prison and only 14 percent released on probation, the

remaining 8 percent receiving fines or jail sentences.14 Like-

application; but here there is an affirmative showing to the contrary. When
the court undertakes to deal with the question whether a particular case or
a particular defendant is within the scope of the probation law, then it is
dealing with fixed legal principles, and a departure from those principles is
an abuse of discretion and raises a question of law which may be reviewed
on appeal.’ ” People v. Miller, 112 Cal. App. 535, 538~539, 297 Pac. 40 (1931).

Alsb in PeOple v. Osterhelt the court held: “At the time when defendant’s
motion for a new trial was denied the defendant asked for permission to file
an application for probation, but such permission was refused. The only
reason given for such refusal was stated by the court in these words: ‘If he

_had honestly admitted his guilt, I would have permitted him to file his

application for probation, but not after we have gone through the trial and
the jury has found him guilty.’ Here again it is conceded by respondent that
the court was in error; and this concession is clearly justified. (People v.
Miller, 112 Cal. App. 535, [297 Pac. 40].” 125 Cal. App. 723, 724-725, 14 P.
(2d) 140 (1932).

14 “It has been suggested in some of the crime surveys that judges think a
defendant who refuses to admit his guilt but pleads not guilty and forces
the State to go to the trouble of proving him guilty on trial deserves no
consideration for probation. While the determination of whether or not de-
fendants should be placed on probation is one that should depend entirely
upon the possibility of rehabilitation of offenders by this method of treat-
ment, it is only human to expect the courts to be materially influenced by
the apparent attitude of the defendant toward his crime.

“An examination of the relative number of defendants who are sent to
prison or placed on probation in relation to whether or not they plead guilty
or were convicted on trial will be profitable.

“Probation may be granted in Ohio in all cases except after conviction for
murder, arson, burglary of an inhabited dwelling, incest, sodomy, forcible
rape, assault to rape, and administering poison. While it has not always

432

wise the statistics set forth in the several crime surveys of
recent years support the conclusion that pleas of guilty
result in a much larger proportion of suspended sentences
and probation than do convictions obtained by trial.15

 

been possible to identify the specific cases, the actual proportion of convic-
tions reported in this study for the offenses excluded from the benefits of pro-
bation does not exceed 5 percent. The analysis of the total major offense
convictions should, therefore, show quite reliably the relationship between
type of conviction and sentence imposed.

“The following data show the proportion sentenced to prison and the
proportions given probation for the 3,625 major oflense convictions in the
43 counties of the State, according to the method of conviction.

 

 

 

 

 

 

 

 

 

 

 

Total con- Percent to Percent
victed prison probation
Total, 43 counties 3, 625 49. 2 43.0
Plea guilty- 3, 038 43. 6 48. 6
Trials- ' 587 78. 4 14. 3
Court trials 254 65. 7 21. 3
Jury trials 333 88.0 9. 0

 

 

The difierences are very striking. More than 78 percent of those who were
convicted by trial were sentenced to prison, but only 43.6 percent of those who
plead guilty. Probation was granted to nearly half of the defendants pleading
guilty to major offenses but to only about 14 percent of those convicted on trial.
A defendant who is convicted of a major offense, by plea of guilty, stands 4
chances out of 10 of going to prison and 5 chances out of 10 of being given
probation. A defendant who is convicted on trial has 8 chances out of 10 of
going to prison and only a little more than 1 chance in 10 of obtaining -
probation.” Judicial Criminal Statistics of 43 Ohio Counties (U. S. Dep‘t
Commerce, 1938).

15 “These percentages indicate that the defendant pleading guilty in 1917 had
2.3 chances of having his sentence suspended to 1 chance for the defendant who
was convicted; in 1922, the differential was 3.3 to 1 and in 1927 it was 6.3
to 1.” Fuller, Criminal Justice in Virginia (1931) 117.

“A considerable number of sentences are suspended in Virginia, far more, of
course upon plea than upon conviction. It is doubtful if any suspended
sentences are justifiable (except possibly in certain domestic relations cases)
unless there is a trained, expert probation officer to oversee and guide the
defendant during the time of his probation. There should be a realization that
probation is not an escape from punishment when properly used; it is a form of
punishment, plus other things. Probation, in a sense, is a restriction of the
person’s liberty. It is also an effort to instill into him a new set of values
during the period of his restricted liberty. To be eflective, probation (suspen-
sion of formal imprisonment) needs investigation before it is granted and
trained supervision after it is granted. This does not exist in Virginia.” Id
at 161, quoting an address of Judge John L. Ingram.

In summarizing the chapter dealing with this statistical data concerning
pleas of guilty and pleas of not guilty the Oregon Crime Survey states: “Sen-
tence was suspended in nearly one-half of the cases in which defendants plead
guilty to the crime charged but in only 15 percent of the cases in which the
defendants plead guilty to a lesser offense. Less than 4 percent of the cases
in which the defendants after pleading not guilty, were convicted by jury trial,

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433

While 158 judges were influenced toward leniency as a
general rule when defendants plead guilty, only 126 judges
expressed the opinion that they were inclined to give more
lenient sentences when the defendant turns state’s evidence.
Twenty-eight others said they would be inclined toward
leniency in such cases if so recommended by the prosecutor.
Sixteen judges said that turning state’s evidence had no
effect on their sentences; 100 judges gave no information
on the point. Interestingly enough, the judges as a group
were not so certain that more lenient sentences should be
given those who turn state’s evidence as they were that
pleas of guilty should be taken into account when fixing
sentences. Many of the judges recognized that defendants
who turn state’s evidence usually do so upon the basis of a
compromise or bargain with the prosecutor, who frequently
dismisses the charges against the witness or accepts a plea
of guilty to a lesser offense.

As to the question of the influence of pleas for leniency
upon sentences imposed, 116 judges reported giving consid-
eration to such pleas and, if they find them meritorious,
imposing lighter sentences. One judge said he was in-
clined to follow the prosecutor’s recommendation, and 47
judges stated that pleas for leniency have no effect upon
the sentences that they impose. Information on the point
was not obtained from 106 judges.

Judges and indeterminate sentences.—To what extent are
judges in favor of indeterminate-sentenCe laws? The 270
judges were asked to express themselves as to the type or
types of sentence laws which they prefer. One hundred

resulted in suspended sentences.” Morse and Beattie, op. cit. supra note 7,

at 150.

“In New York pleas of guilty result in suspended sentences in about one-
third of the cases; among the ‘not guilty plea’ cases which result in convictions
only about 14 percent result in suSpended sentences. In Illinois 40 percent of
those who plead guilty as charged are placed on probation and only 17 percent
of those convicted after pleas of not guilty receive probation. This was said
to indicate a tendency to bargain for pleas of guilty. About the same tendency
was noted in the Missouri survey where it was stated that the probability of a
penitentiary sentence was reduced one-half by an original plea of guilty to the
offense charged.” Report of the Minnesota Crime Commission (1934) 160.

It was also found in the Georgia study that “all 01' the courts sentence a
small proportion of defendants to straight imprisonment if they plead guilty.”
Crime and the Geargia Courts (1925) 16 J. Crim. L. 169, 219. For similar
results see Missouri Crime Survey (1926) 314—318.

434

and twenty-one favored some form of the indetermina
sentence law; 60 expressed preference for fixed- or defini
sentence laws; 21 favored using both types in the sa
jurisdiction. These last seemed to be agreed that defin'
sentences should be imposed on offenders committing c
tain types of crime, especially crimes against the perso
and that indeterminate sentences should be imposed f
other crimes. Eleven judges said it was entirely imm
terial to them what type of sentence is imposed. Inform
tion was not obtained from 57.

Although 121 of the judges expressed preference for
indeterminate-sentence law, their views varied as to wh
type of indeterminate-sentence laws they prefer. Unf
tunately, the Survey material on this point was not gather
in sufficient detail to justify drawing any other conclusi
than that these 121 judges favored some form of indet
minate-sentence law over definite-sentence laws. The
ports on some of the judges did show a preference f
long, indeterminate sentences with restrictions on the leng
of the minimum sentence which a judge can impose. A f
favored indeterminate-sentence laws with only the ma
mum sentence fixed by statute, leaving entirely to t
parole board the question as to when the prisoner should
released, but others expressed disapproval of indetermina
sentence laws which restrict judges in imposing minimu
sentences.

Many of the 58 judges who favored fixed or definite se
tences stated that indeterminate-sentence laws have rel
gated the judge to the position of umpire in criminal cas
Some were more emphatic than others because, in the
opinion, judges are much better qualified to determine ho
long a prisoner should remain in prison than are senten
ing or parole boards which, many believe, usually “are ma
up of impractical theorists.” However, many who favor
definite sentences agreed that judges frequently should ha
much more information about an offender before passii
sentence than is now available.

Judges on the adequacy of courts in mettng out sentences.
One hundred and fifty-five judges declared the prese
methods of sentencing offenders to be fully adequate and n

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435

in need of modification. Twenty-four additional judges ex-
pressed views to the efi'ect that although the present method
cannot be classified as inadequate, neither can it be said to
be fully adequate. These judges, in particular, commented
on the need for supplying the judges with case-history ma-
terial, especially where the judge is inclined to believe that
there is a possibility of placing the individual on probation.
Twenty-seven judges expressed the opinion that present-day
sentencing methods are inadequate. Information was not
obtained from 64.

Not all the 27 judges who consider present sentencing
methods to be inadequate meant to imply that they would
favor transferring the power to fix sentences to oflicials other
than judges. Several of these judges who presided over
courts in jurisdictions having indeterminate-sentence laws
which restrict the sentencing powers of judges, expressed
the view that the present methods are inadequate because
the judges’ powers of fixing definite sentences have been
modified.

The reactions of the majority of the judges who ex—
pressed themselves on the proposal to establish sentencing
boards create a very definite impression that the judiciary
is not in sympathy with proposals which seek to take away
entirely the sentencing powers of American judges. One
hundred and fifty-three judges stated that they would be op-
posed to a separate sentencing board. However, 46 of these
said that they would favor the creation of a small advisory
board to sit with the judge and advise in regard to the
sentence.16

1°“Many judges of the highest repute have been heard to say that they
need no help from any outside source in the determination of proper sentences.
Some go farther, and resent the suggestion that outside help should even be
contemplated. They rest their resentment, in some instances, upon a very
sound legal proposition—viz. that under the constitution and law the judge is
the officer or government invested with the power and charged with the duty
to impose sentence; that the responsibility is his; and that it is an im-
pertinence to suggest that any outsider can or should share the responsibility
with him.

“The first time one hears this argument he is apt to listen to it quite
impatiently. It sounds like a mere rationalization of judicial egotism. But
when it is repeated time after time by judges whom one knows to be
thoroughly trained lawyers, wise counselors, and earnest and sincere public
servants, one comes to realize that in this field also there is need for patient
educational effort.” Ulman, The Trial Judge’s Dilemma: A Judge’s View in
Glueck, Probation and Criminal Justice (1933) 99, 118.

436

Only 24 favored transferring sentencing power from trial
judges to boards. Most of the 24 seemed to think that
the creation of special sentencing boards would eliminate
arbitrary variances in sentences and would assure greater
individualization of treatment. The reports of 90 judges
contained no information on the point.

The reporters were very 1111 ch surprised to find how
large a number of the judges were frank to criticize the
lack of training and preparation of criminal court judges.17
Although, as a. group, they were not in favor of restricting
further the sentencing power of the judiciary, they were in
favor of improving the personnel of the criminal bench.
Many of them said that it is just as important for a judge
to have a thorough background 111 criminology, psychiatry,
social case work, and social problems as it is for him to
understand the rules of the criminal law. Usually those
who expressed such a point of view also admitted that at
least the larger courts should be supplied with investigative
and case-work personnel as well as expert advice in the
handling of those cases which seemed to involve psychiatric
problems. Many held views similar to Judge Ulman, who
wrote :13

How many people know even the numerical count of the
output of the judicial mill in a modern American city? Dur-
ing the first 10 months of the year 1931 there were passed
through that branch of the criminal court of Baltimore, pre-
sided over by the writer, 1,398 cases. In arriving at this figure,
there have not been counted 539 cases dealt with during the
summer recess period, when other judges presided in the court.
That means that 1 judge, in 158 court days, heard and dis-
posed of practically 1,400 cases, or an average of nearly 9
cases per day. There were pleas or verdicts of guilty in 1,012
of these cases, in which sentences had to be imposed—an aver-
age of more than 6 daily.

17 “One need not be a great lawyer to learn how to dispose of criminal cases
in accordance with the highest standards known to us at present. But the
larger and broader man a judge is, the wider his knowledge of human nature
and human life in all ranks of society, the greater his ability to see all
sides of a human problem, the more competent he will be as a sentencing
judge. There have been satisfactory judges in the civil courts who were
failures on the criminal side, because they knew little about human weak-
nesses and temptations. They thought of people as either white or black
at heart, and recognized no bond of sympathy with the vast army of the
somewhat discolored.” Lummus, op. cit. supra note 8, at 54.

13 Ulman, supra note 18, at 118—120.

 

 

 

 

 

437

Now, can anybody contend seriously that this volume of
sentencing work could be accomplished with anything ap-
proaching wisdom or social vision by a judge who had also to
spend many hours of each day listening to the evidence which
was to determine the guilt or innocence of the accused?
Ought not a judge, faced with this well-nigh impossible task,
to welcome, and to welcome avidly, all the information he can
get regarding the social history and background of these men
and women whom he must sentence? The answer seems
obvious.

A probation department in a busy urban criminal court
ought to have a staff of competent investigators, large enough
in number to make a thorough social investigation, not merely
of the exceptional case, but of all cases, and to report upon
them promptly. Sentence ought not to be imposed until the
judge can reinforce his courtroom impressions, or correct
them, or abandon them, after considering these reports. That
is a large order. It may mean that more judges will have
to be assigned to the criminal bench, as well as that larger
and more competent staffs of social investigators will have to
be attached to existing probation departments. The program
will cost money. But who shall say that it will not be money
well spent? * * *

The “hunch” system for the determination of the judicial
sentence is one of the weakest points in the present adminis-
tration of the criminal law. Something better must be de-
vised. From all sides are heard criticisms of the existing
method. Conscientious and thoughtful judges are the first to
condemn it. A defendant is tried in one part of a criminal
court and is sentenced to 2 years in prison. He might have
been tried in another part of the same court, in the same
building, on the same day, and would have been given 10
days, or perhaps 10 years. The public senses these differ-
ences and is disquieted. by them. Criminologists say with
entire propriety that in this field there is no law Whatever——
that there is no such thing as a science of sentencing. The
judge, who faces the problem daily, realizes better than any
one else not merely that he has no satisfactory guide for his
action, but that he is dependent upon luck rather than science
as to what will be the effect of the sentence which he imposes.

As a general rule, the judges opposed sentencing boards
made up of so-called experts. A large portion of the judges

. seemed to feel that there is an inherent danger in giving

broad powers to specialists because of extreme differences
in points of view among them, and because they indulge in
a great deal of theory not demonstrable in fact. Many of

” the judges voiced the belief that by use of the indeterminate

438

sentence, suspension of sentence, probation, and parole pro-
cedures the present system provides all the possible benefits
which can be claimed for a special sentencing board. How-
ever, many of them recognized a growing feeling among the
general public that the sentencing powers of judges should
be more restricted than they are now. Some of them
thought such restrictions to be inevitable and believed oppo-
sition to them from the judiciary and legal profession would
not prevent their adoption in many jurisdictions.

Judges’ views on primary objectives of criminal law.—
Seventy-five considered punishment to be theessential pur-
pose or end of criminal justice. These 75 were not in agree-
ment as to the purposes or benefits of punishment. A few
believed punitive justice to be an end in itself, but most .
of them stated in effect that the purpose of punishment is ‘
to deter the offender and others from committing addi-
tional crimes, thereby serving as a protection to society.

Sixty-two declared the primary purpose of the criminal
law to be the protection of society and there were many
repetitions among the reports from these judges of the
thought that the procedures of criminal justice should be so
devised. Forty-three stated in effect that the primary aim
of the criminal law should be to reform and rehabilitate the
offender, while 52 others emphasized punishment, protec-
tion of society, and rehabilitation of the offender as insep-
arable aims of criminal justice. Information was not ob-
tained from 38.

011 the basis of the reports submitted, there is no way of
knowing how many of the 7 5 judges who selected punish-
ment as the primary objective of criminal justice would ‘
have qualified their remarks if each one of them had been
asked if “punishment should be the one and only aim of
criminal justice.” Likewise the 62 judges who selected
“protection of society” as the essential purpose of criminal
justice would undoubtedly stress other objectives as well if
the problem had been presented to them a little differently.

The material on this point is characterized by such great
subjectivity and variance in the methods of collection that
only the most general of conclusions can be based upon it.
However, there is enough to show a marked divergence of

 

439

opinion as to what is the primary objective of the criminal
law, which divergence makes the many variances in sentenc-
ing practices and judicial procedures more readily under-
standable. Since a large number listed punishment as the
primary function of criminal justice, the need for educating
the judiciary to a more enlightened understanding of the
findings of modern criminology becomes clear.

Judges’ attitude toward probation—One hundred and
eighty-eight expressed themselves as being very much in
favor of the use of probation whenever the interests of
the public seem to justify it; 54 others favored a restricted
use of probation, among whom were some who stated that
in many jurisdictions too many persons are being placed
on probation, most of them without adequate supervision.
Other criticisms were that some judges use probation as a
form of political patronage while others are guilty of such
variances in their probation practices as to constitute an
abuse of the probation procedure.

Information was not obtained from 14 judges. Twelve
reported that they are definitely opposed to the use of pro-
bation while two others stated that they seriously question
the value of probation. Some of these last two groups
made comments to the effect that probation is a form of
leniency in the handling of criminals which has only en-
couraged potential offenders to “take a chance” with the
law. According to some of these judges, certainty that
some imprisonment will result from conviction is essential
in controlling the criminal class. Also a few of the judges
opposed to probation stated that their opposition to it was
based on their observations that the abuses of probation far
exceed its theoretical values.

What types of ofl'enders do the judges think should be
placed on probation? The judges’ answers to this question
were very similar to their listings of factors which tend to
produce lenient sentences as set out in table III. Some
variations were noted but in the main it can be said that
the same factors which tend to produce lenient sentences
also determine the types of offenders most frequently placed
on probation. The following types of offenders were listed

by the judges as good probation risks: First offenders, young
73115—39—v0L. 11—29

440

offenders, those with dependents, those showing possibilities
of rehabilitation, nonvicious types, women, the “accidental”
offender, the old and infirm, and the previous offender whose
prior record is not serious. However, many of the judges
qualified their comments by saying that the question as to
who should be placed on probation depends upon all of the
surrounding facts and circumstances of a given case. Great-
est agreement was in regard to first oifenders, young offend-
ers, and those having dependents.19

The judges were asked what they considered the functions
of probation officers should be. Ninety-two of them de-
clared the primary purpose of the probation officer to be the
supervision of all probationers after sentence; 87 felt that
the probation oflicer should help the court with the investi-
gation of the offender prior to sentence and then supervise
him after sentence; 6 said the probation officers’ duties
should be limited to the presentence investigation, and that
supervision should be left to other agencies. Seventeen
judges expressed views to the effect that probation oflicers
represent surplus personnel in the administration of proba-
tion and are not needed. They advocated saving the ex-
pense of probation officers’ salaries for the taxpayers. Of
the remaining 68 judges 12 were not in favor of probation
and 56 made no comment.

It is to be seen from this noticeable lack of agreement
on the part of the judges as to the duties of a probation
officer that there still remains a great deal of work to be
done in connection with showing the courts what services a

 

19 It is interesting to compare the judges’ views as to who should be
placed on probation with the findings of the probation department of the New
York County court of general sessions. See 9. 9., Halpern, A Decade of
Probation (an unpublished manuscript) 119:

“Our studies reveal that the average probationer placed in the custody of
this department by the court for control and social treatment, is a young
man whose ,background is poor, and is a member of a family which lives
either on a marginal income, or one in which poverty is a prominent factor.
His social vision in general is limited to the codes of conduct which govern
the attitudes of his associates and which prevail in the immediate neighbor-
hood in which he lives. His education is scanty. His equipment for a place
in the ec0nomic struggle leaves much to be desired. He seldom has developed
in himself resources which make for that element which we call character,
and he rarely, if ever, has any objective which makes for the immediate de-
velopment of a socialized viewpoint. His leisure is spent on the streets, in
poolrooms, and in cheap dance halls, and he is not easily diverted from the
deteriorating influences which play upon him in these environments.”

441

probation officer can and should render in helping with the
administration of probation. The National Probation Asso-
ciation has stated very clearly the dual function of a pro-
bation officer in this language: “As understanding grows of
these underlying purposes and principles of the probation
movement, and of its proper place in our system of dealing
with delinquents, more attention is given to the two distinct
functions of a probation department: (1) Investigation for
the court before sentence and (2) the supervision of de-
fendants placed on probation. In the later amendments to
the probation laws, increasing emphasis is laid upon the
first function, some going so far as to require that no de-
fendant shall be placed on probation until an investigation
has been made by the probation department and considered
by the court.” 2°

The comments of the judges show many to be very much
in doubt as to what training and qualifications should be
required of probation officers. This matter seems to bother
them very much because in many jurisdictions probation
officers are selected and appointed by the judges. Some
of the qualifications for a probation officer mentioned in
order of frequency were: Knowledge of human nature and
ability to handle people; good judgment; sympathetic, un-
derstanding and reasonable attitude; special training in so—
cial work or criminology; a good education; tactfulness;
sincerity of purpose and firmness in carrying out duties;
a good personality and physique; a knowledge of the law;
maturity. Many of the judges pointed out that qualified
probation officers cannot be obtained for the low salaries
that are provided for them. Others emphasized that the
quality of probation officers cannot be improved until defi-
nite standards of competency are set up and probation
officers are selected on the basis of merit rather than on the
basis of friendship, politics, or happenstance. The comments
of many of the judges indicated clearly a desire to pay
much greater attention to the presentence investigations and
recommendations of probation ofiicers if more of them were

20 Hiller, Adult Probation Laws in the United States (1930) Yearbook of the
Nat. Prob. Ass’n, 147, 150. ‘

442

better trained for their work. It is obvious that the work
of a probation department cannot succeed unless the judges
have confidence in the ability and calibre of the probation
officers. For the most part the judges interviewed gave
evidence of wanting to take advantage of whatever valuable
assistance probation officers can render them. On the basis
of such a judicial attitude of cooperation the probation
departments in many jurisdictions have a fine opportunity
to develop a much-improved probation service.

SUMMARY

The data obtained from the interviews with the 270
Federal and State criminal court judges are limited by
their highly subjective nature. Nevertheless, they do pre-
sent an illuminating cross-section picture of judicial atti-
tudes toward many phases of criminal justice, especially
the sentencing of criminals. The value of the information
gained from the interviews was greatly enhanced by observ-
ing the practices of the judges and evaluating their state-
ments and practices in light of the findings of the other
phases of the Survey.

The views expressed by the judges interviewed are prob-
ably representative of the judges of the country as a whole
because the group was drawn from the judiciary of 45 States
and the Federal system. Probably as good an indication
as any of the fine cooperation which was extended by the
judges to the Survey reporters in making this study of
judicial ideology is that the judges were their own severest
critics. In fact, the major evaluations and criticisms of
the attitudes and practices of judges presented in the fore-
going chapter rest ahnost entirely upon the testimony of
the judges themselves.

One clear impression stands out from the interviews;
namely,i§_1:i1ninal court judges need much more assistance in
obtaining case-history material about offenders and also
more help in interpreting and applying such material to
individual offenders before sentencing them; The “lunch
systgg?’ of sentencing offenders referred to by many of
the judges cannot be justified as a substitute for a thor-
ough study of the individual characteristics and problems

 

I
J.“
3
3'
'3
IL
3
I
I
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s
I
s
v
q

443

of the prisoner. Most judges have neither the time nor
the training to collect the type of case—history material that
they should have before sentence is imposed. Therefore,
judges should be provided with well-trained probation of-
ficers who can give them such assistance by means of care-
fully prepared presentence investigation reports.

There can be little question that many men are sent to
prison who would be good risks on probation, in fact,
better reformative prospects than when they are released
from prison. If judges could be supplied with a thorough
case history, including a medical, psychological, and psy-
chiatric examination of every ofl’ender, if they could have a
carefully prepared report by a competent probation oflicer
setting forth the behavior assets and liabilities of the of-
fender, and pointing out the family, employment, and com—
munity forces which could be used as reformative aids in
case an individual were placed on probation under super-
vision, many judges, according to their own statements,
would make greater use of probation than they now do.

The findings of this Survey lend support to the view that

much educational work needs to be done among the judges

of the country in making more clear the functions which
good parole and probation work should and could perform
in controlling and rehabilitating those convicted of cr1me w,
Although the number of judges who confessed a complete
disapproval of parole and probation was small, there were
many who proclaimed a sympathy for the principles of
parole and probation but who demonstrate in their sentenc-
ing practices that they do not understand fully the aims
and objectives of either parole or probation.

Q majority of judges seemed to look upon probation as
a form of leniencylj However, few of them are provided
with adequate probation facilities, including sufficient su-
pervisors, so as to permit the administering of probation
in any other manner except as a form of leniency. Of-
fenders turned loose on probation without careful super-
vision are neither helped toward reformation nor impressed
with the “majesty of the law.”

LEar too many judges are carelessly lenient in the dispos-

' ing of cases involving youthful first offendevrflsij Frequently

444

such offenders are released on probation into the custody of
their parents or relatives who have“ already demonstrated
a lack of control over them. Also many judges place youth-
ful offenders on probation requiring no supervision other
than the sending of written reports to the judge periodically
or personally calling upon the judge or some other officer
or volunteer probation sponsor. Such a practice, which is
all too common, leads to a good deal of justifiable criticism
of probation. This criticism is supported by the statistical
data of this Survey which show that young offenders on
probation commit a higher proportion of crimes than of-
fenders in older age groups and also that there is a higher
proportion of recidivism among youthful offenders who are
granted probation.

Judges should be much more careful in seeing to it that
even youthful offenders when released on probation are
effectively supervised by competent probation officers The
granting of probation as a form of clemency or leniency
defeats in most instances its reformative and rehabilitative
values, and too frequently such careless and sentimental
use of probation encourages the probationer, especially the
young offender, to continue in crime.

A lack of probation facilities and assistance forces a good
many judges to use volunteer probation sponsors. How-
ever, probation supervision requires good case-work tech-
nique, and a volunteer probation sponsor, no matter how
well intentioned, may do much more harm than good un-
less he is completely trained. Probation work should be
recognized as a law enforcement function. Its efficiency
should not be impaired by forcing judges to call upon vol-
unteer probation officers to perform the very important task
of guiding and supervising probationers.

ifixmajority of the judges interviewed admitted an incli-
nation toward imposing lenient sentences when defendants
plead guilty, justifying the practice chiefly on the grounds
that pleas of guilty save the State much time and money
and also often indicate that the defendant is ready to re-
form his way of life. V The practice is deserving of censure
because it gives rise to grave abuses, especially when the

n i

 

445

leniency takes the form of granting probation to large num-
bers of those who plead guilty.

A defendant’s plea of guilty 13 no indication 1n itself that
he would be a good probation risk. His plea usually is
determined by advice of counsel and far too frequently as
the result of a compromise between counsel and prosecutor.
The tendency of many judges to countenance the compro-
mising of criminal cases to the extent of indicating by
statement or by their record a greater inclination to grant
probation if the defendant pleads guilty confuses the guilt
finding process with the sentencing process. The practice
of some judges of denying probation unless the defendant
pleads guilty is not an exercise of defensible discretion.
Probation should rest entirely upon the facts disclosed by
a thorough case-history study of the defendant and not
upon the fact that he pleaded guilty, or turned state’s evi-
dence or pleaded for leniency. Unless the case history jus-
tifies the belief that the defendant is capable of reformation
under probation guidance those judges who grant proba-
tion on any other grounds tend to defeat the primary pur-
pose of probation, and what is more their indiscretions in
this regard endanger the safety of the public.

The Survey shows most of the judges to be 1n favor of the
use of probation but many of them believe that it is mis-
used.W {The chief criticism made 1s that some judges grant
probation to many offenders without first making a thor-
ough investigation of the cases A majority of judges
seem to be opposed to such restrictions upon their sentenc-
ing powers as the creation of special sentencing boards and
of parole boards with wide discretionary powers. However,
the sentencing records of many judges as well as the judges’
own statements concerning their sentencing practices show
the presence of arbitrary variances and numerous highly
subjective factors and personal biases in the imposing of
sentence. The fact should be recognized by more judges
as well as by the public at large that on the whole a
very unscientific job of determining what treatment
should be imposed upon those convicted of crime is be-
ing done by most judges. One of the most striking. im-

446

pressions gained from this study is that fbriminal court
judges need much more specialized training ifthose sciences
that are making significant contributions to the study of
human behavior if they are to exercise a dominant power in
determining What treatment shall be given to persons con-
victed of crimef?

 

 

 

 

 

CHAPTER XII
RESUME

No attempt will be made in this résumé to summarize all
of the detailed findings and conclusions presented in this
Survey of Probation. The reader must turn to the several
chapters, most of which end with a summary, for conclu-
sions and supporting evidence in regard to many of the
topics contained in the table of contents. However, this
résumé will present the general findings and conclusions of
the Survey discussed in the order of the chapter headings.

HISTORY AND DEVELOPMENT OF PROBATION

Definition—As applied by modern courts probation seeks
to accomplish the rehabilitation of persons convicted of
crime by returning them to society during a period of super-
vision rather than by sending them into the unnatural and,
all too often, socially unhealthful atmosphere of prisons and
reformatories.

Probation is the postponement of final judgment or sen-
tence in a criminal case, giving the offender an opportunity
to improve his conduct and to readjust himself to the
community, often on conditions imposed by the court and
under the guidance and supervision of an officer of the
court.

The successful application of the probation method pre-
supposes an adequate investigation into the facts of the
defendant’s environment, character, and previous record; a
wise selection by the courts of offenders capable of bene-
fiting by the treatment; and a zealous but sympathetic
prosecution of his duties by the supervisory oflicer.

Origin and development—Modern probation legislation
in the United States is generally traced to at least two
sources: The common law practice of suspending sentence
for an indefinite time or during good behavior, which al-
legedly had its foundation in the practice of English courts,

(447)

448

- and early statutes specifically authorizing courts of general
criminal jurisdiction to suspend either the imposition or
execution of sentence. However, the conception of proba-
tion as an outgrowth of the common law power of courts,
in England and the United States, to suspend sentence is
erroneous. Unfortunately this mistaken idea has gained
wide currency even among those best informed on the sub-
ject of probation. It is undeniably certain that courts in
the United States, especially those in Massachusetts, on
whatever basis or theory, did in fact engage in the practice
of suspending the sentences of convicted persons, and this
over a long period of years. .

Any attempt to trace the origins of probation in the
United States must, of necessity, concern itself primarily
with Massachusetts for it was in that State that the courts
first attempted to lessen the rigors of contemporary criminal
law by procedures which were informal and occasionally
extra-legal. In such procedures are to be found the legiti-
mate origins of all later probation laws and practices. It
was in Massachusetts that the first true probation law was
enacted. It was, later, in Massachusetts that early experi-
ments in the development of the system were conducted
and evaluated. In short, probation in the United States
has no early history apart from the development of the
Massachusetts system.

In 1878 the Massachusetts legislature passed what may be
considered the first probation statute. Though this law re-
lated only to the courts of criminal jurisdiction in Suffolk
County (Boston), it contained all of those elements which
today are deemed the fundamentals of a probation system.

Although probation had been developing in Massachu-
setts over a long period of years and was finally enacted into
law there in a form which was to set the pattern for all sub-
sequent development in the field, before the year 1900 only
six States had adopted probation legislation, and of these
only three dealt with adult probation. It is, therefore, for
the most part in the United States, a relatively new method
of dealing with criminals, having grown up over a period
of less than 40 years.

 

449

After 1900 probation developed rapidly until 1915 and-
more slowly since 1915. Adult probation in some form was
authorized by 33 States by 1915, 1 State was added in 1919,
2 in 1923, 1 in 1931, 1 in 1934, 2 in 1937, and 1 in 1938, leaving
11 States still without any type of adult probation law.

Extent of probation—Unfortunately, no inclusive infor-
mation is available as to the number of persons on probation
in the United States at any given time or the number so re-
leased during a year. Moreover, the percentage of offenders
convicted in the various State courts who are placed on pro-
bation or released on suspended sentence is not known for all
States. Although distinct advances have been made in the
last 5 years in the collection of criminal statistics on a na-
tional scale, the fact still remains that “Statistics concerning
probation, like statistics concerning nearly every other as-
pect of work with offenders, are dist-ressingly inadequate in
the United States.” .

The most comprehensive collection of judicial criminal
statistics is the information gathered by the Bureau of the
Census. Since 1932, the Bureau has collected statistics cov-
ering the disposition of criminal cases in the State courts
of general criminal jurisdiction. Although information ob-
tained by the Bureau of the Census is the best available from
a quantitative standpoint, it is far from complete. For
1936, the statistics cover only 29 States and the District of
Columbia. Moreover, only the courts of general criminal
jurisdiction reported, and hence the relative use of proba-
tion or suspended sentence by the minor courts is not shown.
However, it appears that probation or suspended sentence is
granted to approximately one-third of the major ofl’enders
finally disposed of in these States. However, the States
show wide variation in the use of probation or suspended
sentence.

In contrast to the incomplete state of statistics revealing
the extent of probation in the States, the Federal Bureau of
Prisons collects complete information on the relative use of
probation in the Federal district courts. For the fiscal
year 1936—37, the Federal courts in the continental United
States disposed of a total of 35,690 defendants by commit-

450
ment or probation. Of these, 12,489, or 35 percent, were
placed on probation.

ORGANIZATION OF PROBATION DEPARTMENTS

The administration of adult probation is still primarily
a local responsibility. Although a number of States have
established State-wide systems that permit centralized
financing, control, and supervision of probation service in
the courts of the State, State participation is far from
general.

Apart from the States which have assumed definite con-
trol of probation, there exist in other States central agencies
which exercise various degrees of supervision over proba-
tion work. Generally, an unpaid commission, the depart-
ment of public welfare, or some other State agency is vested
with limited powers over the many and varied probation
organizations in the State.

Without a centralized authority responsible for the devel—
opment of probation in the State, many local and essentially
_ autonomous organizations have emerged. In the same State
there may be two or three types of independent agencies,
functioning with little or no relation to each other or to the
State. The character of service rendered by the departments
varies in the extreme even within the State.

While it is difficult to find a basis for classifying proba-
tion agencies into mutually exclusive groups, the probation
departments studied in the Survey were grouped into the
following five classes: (1) Centralized State probation de-
partments; (2) centralized county organizations; (3) met-
ropolitan and large urban agencies; (4) smaller urban and
rural departments; and (5) Federal units.

The centralized State organizations show a marked tend-
ency to combine probation and parole work in the same de-
- partment. This tendency toward consolidation of two re-
lated release procedures is a natural development and to
some extent avoids duplication of services with consequent
saving to the State. However, since parole administration
is in most States centered in one agency, it follows that con-
solidation of the two procedures is hardly. possible in the

 

451

absence of State-wide control of probation. Hence the
county and metropolitan probation departments customarily
do not have parole duties.

Thorough presentence investigations are indispensable to
effective probation work. Regrettably, this important phase
of probation service is nonexistent or performed in a per-
functory fashion in many departments. The centralized
county and the metropolitan organizations are most ad-
vanced in this respect. Of the organizations studied, six
centralized county units, four metropolitan departments,
four Federal units, and a few small urban and rural de-
partments conduct presentence investigations as a matter of
routine in all cases. .

The intensity and thoroughness of presentence investiga-
tions vary in the extreme. In most probation departments
the inquiries are relatively superficial and perfunctory.
However, in the centralized county, metropolitan, and Fed-
eral departments it is encouraging to note a tendency toward
intensive and searching investigations that cover all perti-
nent factors in the criminal, social, and personal history of
the offender.

Many departments still rely primarily upon volunteer
sponsors and ex oficz’o personnel for the active supervision
of probationers. On the whole, unofficial sponsors and vol-
unteers are not able to devote much time to their task and
are seldom likely to exercise more than cursory surveillance

- over probationers; at best, ’they are a poor substitute for
I trained, professional, full-time workers.

Examination of the facilities and characteristics of pro-
bation organizations reveals Widely varying levels of service,
between departments similarly organized as well as from
one type of organization to another. The need for further
development of specific standards of service, procedures, and
techniques is everywhere apparent. The efficiency of most
probation departments is seriously impaired by a lack of
sufficient personnel and facilities. Except for a few de-
partments which are doing excellent work, American proba-
tion is characterized by inadequate presentence investiga-
tions and by an appalling failure to provide for competent
and adequate supervision of probationers.

452 '

The administration of probation is as much a State func-
tion as the administration of courts prisohs, and parole.
Although the best probation work is being done today by
a few of the centralized county and metropolitan agencies,
the serious need for uniform and improved standards and
policies recommends the organization of probation work on
a State-wide basis and under centralized State control.

.No study or evaluation of probation would be complete
without a summary acknowledgement of the effectiveness
of the National Probation Association. This private asso-
ciation has played a most important part in the organiza-
tion, promotion, and coordination of juvenile and adult pro-
bation service. Its work IS performed on a consultative and
advisory level.

Although the National Probation Association has been in
existence since 1907, it has functioned as an incorporated
agency with a paid staff only since 1921. Its work is car-
ried on by a staff of workers in the headquarter’s office and
by field officers, all under the supervision of an elective ro-
tating board of trustees assisted by a professional council
of leaders in the field of probation administration. This
association is “the only national agency exclusively engaged
in the effort to extend and improve probation service.”
The Association also “is concerned with the coordination of
probation, parole, and institutional work, and interested in
all measures for the effective social treatment, and preven-
tion of crime.” Its N ation-wide membership of more than
15,000 persons includes the majority of probation workers,
judges, and citizens interested in the successful application
of probation principles. Its current effectiveness can best
be indicated‘by an outline of its program as set. forth in its
1937 yearbook:

In its working program the association:

1. conducts city and State-wide surveys of courts and proba-
tion departments, prepares reports, organizes and cooperates
with local committees and agencies to maintain and develop
effective probation and social court organization;

2. drafts laws to extend and improve probation and juvenile
courts, and assists in securing the enactment of these laws;

3. aids judges in securing competent probation officers and
assists the oflicers and other qualified persons in obtaining
placements;

453-

4. promotes State supervision of probation and c00perates
with State departments and associations; ~

5. conducts a national probation conference and assists with
special conferences and institutes for training probation offi-
cers;

6. carries on a research program for the study of practical
problems in this field; .

7. serves as a clearing house for information and literature
on probation, juvenile! courts, domestic relations courts, and
Crime prevention, for the entire country;

8. publishes a bimonthly magazine, Probation, with infor-
mation and practical articles; the Yearbook, with addresses
and reports of the annual conference; a National Directory
of Probation Officers; summaries of juvenile court and proba-
tion legislation; case record forms for probation officers; re-
ports of surveys and studies; practical leaflets and pamphlets.

Without doubt the National Probation Association de-
serves a great deal of credit for the development of the best
policies of probation in the United States. Other unoflicial
agencies which are performing valuable educational and co-
.. ordinating services in the field of probation are the recently
_. ( organized parole and probation associations, i. e., Western,
Central States, Southeastern States, Southwestern States,
and New England. These organizations were established
for the purpose of effecting more complete coordination of
probation and parole services within their various geograph-
ical areas. Their membership for the most part consists of
the officials who are engaged in the practical administra-
tion of probation and parole laws.

The Interstate Commission on Crime has also performed
valuable services for probation especially through its work
in sponsoring interstate compacts for supervision of out—of-
State parolees and probationers. The work of all such or-
ganizations has been effective in raising standards of selec-
tion and supervision of probationers within the States
themselves.

—

.— 7‘ ‘ ‘,
. . ~ .. . a ,
, . ~.. ‘ . . I
A .._..-..._....._._._,.,V_,,.,__ _ ‘ ,

‘ V

'. I
an- I—u-ou-n manq-

PROBATION PERSONNEL

‘ Although social case work is the basic elements in proba-
gi tion service, the qualification standards established and ap‘
Lip; plied in the probation work of most departments do not
an! meet the requirements set for professional social case work.
3? In fact, only a minority of the probation departments

454

studied apply definite qualification standards in the selec-
tion of probation officers. The departments under civil-
service regulations appear to have higher educational and
experience requirements than non-civil-service organiza-
tions.

In the majority of the departments studied, officers are se-
lected by the courts. In a few departments the final appoint—
ing authority is limited by civil-service regulations. With
few exceptions, oflicers are not chosen on the basis of uni-
form and clearly defined qualifications. Unrestricted selec-
tion, either by the judiciary or some other authority, car-
ries with it the danger of political pressure, nonuniform
standards, and insecurity of tenure.

Too frequently the qualifications of probation ofiicers
selected by judges including Federal judges are not high
enough to assure eflicient probation work. There is a se-
rious need for improved probation personnel in most juris-
dictions. Selection of probation officers on the basis of
merit determined by civil-service ratings, protection of
tenure as long as competent work is performed, and pay-
ment of salaries commensurate with the professional train-
ing which should be required of all probation oflicers would
do much toward improving the public’s confidence as well
as that of judges and law enforcement oificers in the ad-
ministration of probation.

With existing low qualification standards the need for
“inservice” training of probation officers is readily appar-
ent. Unfortunately, however, only a few departments con-
duct regular training programs; in fact, many do not
appear to encourage or facilitate continued professional
advancement.

ELIGIBILITY FOR PROBATION

The eligibility of offenders for probation is determined
by statutory provision in most of the States. However, the
degree to which statutes regulate the selection of proba-
tioners varies greatly from State to State, and the lack of
uniformity in the statutes seems to be dictated rather by
an arbitrary legislative discrimination than by reason. The
most recurrent and striking difference is to be found in
the matter of judicial discretion in the selection of proba-

455

tioners, some jurisdictions entrusting the subject entirely
to the wisdom and sound judgment of their courts, while
others have surrounded their judges with a mass of re-
strictive and particular exceptions, allowing little latitude
to the courts in the matter.

Statutory provisions excluding certain offenders from
probation are, in the main, designed to weed out the persons
who are not suitable material for the processes of proba-
tion. However, taken alone, the specific offense committed
is an insufiicient criterion for determining whether a pris-
oner should be released on probation. An analysis of some
factors influencing outcome on probation set out in detail
in chapter X of this Survey shows that there is no clear
indication that ofl’enders who have committed the so-called
more vicious crimes are poorer probation risks than others
who are found guilty of the leSs serious offenses. The Sur-
vey analysis of the records of nearly 20,000 terminated pro-
bation cases taken from the files of 25 probation depart-
ments in 16 States and the District of Columbia does not
reveal any universally significant relationship between the
nature of the offense committed and behavior on probation.

Rigid statutory restrictions on eligibility for probation
lead to subterfuge and circumvention. Frequently courts
accept a plea of guilty to a lesser offense for which proba‘
tion is permissible if it appears that the defendant is sus-
ceptible to probationary treatment. Although a desirable
result may be achieved in the particular case by the use of
such methods, the legislative restriction on probation eli—
gibility is thereby defeated.

As long as probation is viewed as a form of leniency, it
is natural to assume that certain offenders will be denied
probation purely on the basis of the crime committed. Even
though practical considerations require that some limit must
be fixed upon the number of probationers, eligibility for
probation should not be determined by inflexible statutory
provisions. The soundest solutions to the eligibility prob-
lem is that which grants the court broad discretion in the
matter of probation.

However, that discretion should be exercised only in the
light of intensive investigation of the merits of each case

73115——39—von. {1—30

456

and with the assurance that thorough supervision will be
maintained over the probationer. ‘ The eligibility of of-
fenders for probation should be based upon the findings of
trained and qualified probation oflicers equipped to investi-
gate ofl'enders, rather than upon arbitrary and unrealistic
statutory restrictions.

LAW AND THEORY OF PROBATION INVESTIGATION

Statutory restrictions on eligibility in many jurisdictions
limit to some extent the groups from which probationers
may be selected. By and large, in the majority of jurisdic-
tions in the United States, the burden of selecting or reject-
ing offenders for supervised release falls upon the courts.

A rehabilitation program cannot succeed where over-
whelmingly adverse factors exist in the character, health,
mental state, and environment of offenders. It should be
the purpose of the preprobation investigation to disclose to
the court both the favorable and unfavorable influences at
work in the defendant’s personality and circumstances in
order that the choice may be as wise and enlightened as the
predictability of human nature permits.

Statutes in 24 jurisdictions in the United States make
some provision for investigation, though the requirement
that such investigation be conducted before sentence is not
general. Presentence investigations of persons considered for
probation are mandatory only in California, New York, and
Illinois. In Michigan and North Carolina they are manda-
tory for all felons who are considered for probation. In
all other States investigations need be made only in the
discretion of the courts.

In no jurisdiction is any specific period of time for the
making of preprobation investigations set out in the stat-
utes. Laws in a few jurisdictions require that the reports
of investigations be kept as permanent parts of the court
records in the case, and in a few others copies of the reports
are directed to be sent to any institution to which the de-
fendant is committed in case probation is denied. Not
many statutes prescribe methods to be pursued by the inves-
tigating oflicers.

457

Authorities are in substantial agreement as to the desira«
ility of investigation before sentence. If the facts learned
re to exercise any influence upon the problem of selection,
uch data must be presented to the court before the ques- _
ion of sentence has been determined. The delay in finally
isposing of cases which completion of an adequate investi-
ation may entail is amply offset by the relatively more
xact justice achieved when sentences are imposed only in
he light of adequate knowledge of an offender’s history and
resent condition.

At least 1 week should be allowed for the gathering of
nformation, and most authorities believe that a period of

week to 10 days should be a sufficient time in which to
omplete a fairly comprehensive social investigation. There
8 some conflict of opinion as to what temporary disposition
hould be made of the offender during this period, but at
east some judges follow what seems to be a very good
ractice—that of retaining the defendant in jail until the
fficer’s report has been made. These judges believe that

taste of imprisonment in jail may be of some force in
eterring violation of probation if granted.

Presentence inquiries can best be conducted by trained
robation officers since special knowledge and experience
re ’required to bring together into a comprehensive and
nderstandable picture the significant facts concerning an
ffender. The separation of the functions of supervision
nd investigation is probably not to be desired unless the
taff of a probation department is a large one and talents
re specialized.

Preprobation investigation of all persons charged with or
onvicted of crime is not at present possible. Some hope
as been expressed from time to time that a scientific method
or the selection of candidates for investigation may be de-
eloped. Until the time when such a plan has been evolved
r until the time that increases in personnel and funds of
probation departments permit the investigation of all of-
enders before sentence, some minimum standards should
e set up. Certainly, no person should be granted proba-
ion unless the facts of his life and circumstances have been

458

brought to the court’s attention. This is the very least that
can be expected of a probation department and the failure
of courts to demand such information, or of probation of-
ficers to supply it, constitutes one of the most important
obstacles to the achievement of the ultimate purpose, re-
habilitation of the offender, for which probation legislation
has been adopted by the States.

The scope and methods of preprobation investigation
must of necessity vary with individual cases but an adequate
and well-rounded inquiry should include a search of the
previous criminal record, an examination of the social his-
tory of the defendant based primarily on a personal interview
conducted by the investigating oflicer, and a verification or
community examination. Whenever possible physical and
mental examinations should be made, since these may reveal
weaknesses of body or mind which may constitute insuperable
handicaps to rehabilitation.

When such records are available, it is important that
courts avail themselves of the information contained in
them. Judges should heed the recommendations of the in-
vestigating officer whose more complete and specialized
understanding of the offender and his problems renders his
advice of great value in determining what should be done
with the offender.

INVESTIGATION PRACTICES

That adequate and reliable records of probation work are
one of the major unfulfilled needs of modern probation
service has long been pointed out by those who have written
thoughtfully on the subject. Their conclusions have found
ample confirmation in the studies made by this Survey. Be-
cause case work over the entire country has been for the
most part either inadequately recorded or not recorded at
all it has been an almost impossible task to include in this
study any conclusions supported by reliable facts. Suspi-
cion may have been aroused and private opinions formed
on the basis of some general knowledge of conditions and
trends prevalent throughout the probation systems of the
Nation, but the amount of actual facts on which to predi-
cate an accurate judgment of present practices is so meager

 

 

.‘ r.

 

459

as to be almost entirely unsatisfactory for the purposes of
this report.

If, however, there is any general statement that this study
can offer without hesitation as to the faults of modern pro-
bation, it is that records of probation work are inadequate,
unreliable, and for the most part nonexistent. Until of-
ficers, departments, legislatures, and courts charged with
the administration and financial support of probation rem-
edv this condition they can expect no accurate appraisal of
their services and must not complain if they become fre-
quently the objects of unfavorable criticism. The Survey
has been hampered during the entire course of its field work
by the impossibility of securing accurate information as to
the kind and amount of probation service offered.

For the most part the faults and insufliciencies of investi-
gative practices cannot be laid at the door of inadequate
or wrong legislation. The part which statutory provisions
can play in this phase of probation work is after all ex-
tremely limited. No doubt the enactment of provisions re-
quiring minimum periods of 1 week to 10 days for the prose-
cution of an investigation might work some amelioration in
the practices of many jurisdictions. However, a good in-
vestigation service can be attained within the limits of a
general probation law even though it makes no specific or
detailed requirements as to investigation.

\Vith a few scattered exceptions, existing legislation with
regard to this phase of probation is adequate. Necessary
improvements will result more certainly from continued
education of the bench to the need and value of this serv-
ice, an increase and improvement in the personnel of proba-
tion departments and augmentation of the funds made
available for the work.

That the process which leads to the selection of proba-
tioners is the keystone of the entire probation structure
needs no further emphasis. However, probation will con-
tinue to fall far short of its purpose until probation de-
partments offer a. complete, well—rounded program of in-
vestigation which is followed without deviation in all cases.
Some probation departments carry out good programs of
investigation with reasonable regularity. In none can the

460

service be truthfully described as excellent. For the m
part investigations are conducted incompletely and spor
ically. Of 108 units studied, 16 “could be classed as

fering the prospect of a good investigation with fair re
larity; in 18 only a fair investigation could be expected
any case. Forty-five units conducted some type of so
investigation sometimes; 13 units depended upon the she
prosecutor, or the police for any presentence informat
about the offender. Sixteen of the 108 units conducted
investigation at all.

THE CONTROL OF PROBATIONERS: CONDITIONS OF
RELEASE

The majority of States have vested their courts with
power to fix the terms and conditions of probation. In 8
this power is limited in an affirmative way by statute;
others, the statute is either silent as to the nature of
conditions which the court may impose or it sets up s
standards which, however, the court need not apply in ev
case. Some States have removed from their courts
power to impose conditions and have placed it in the ha
of an administrative agency. In all of these instances
entire control of probationers, after the determination
the court of the question of probationary release, is tur
over to such administrative boards. However, the fact t
these boards have succeeded to the courts’ former powei
fix terms and conditions of probation cannot be conside
evidence that this particular phase of the probation pr
dure has been badly handled by the court-s.

It is noteworthy that in a majority of the States pro
tion conditions of a pecuniary nature are those most
quently encountered in the statutes. Such conditions
late to costs, bonds, fines, restitution, and support. W
conditions which contemplate money payments of one t
or another do not operate as conditions affecting eligibi
they have undoubtedly an important place in the probat
procedure. However, great care should be exercised b
in the imposition and in the enforcement of such terms t
injustice may be avoided. The prevailing emphasis on c
ditions of this nature, with a resultant lack of developm

 

461

of probation conditions which relate to the general conduct
of the probationer and the environmental factors affecting
him, is to be regretted. This state of affairs may be ex-
plained in some measure by the fact that as a whole proba-
tion has developed sporadically and without direction or
coordination. As a result, statutes set up few definite
behavior standards for probationers.

Conditions, apart from those of a pecuniary nature, which
occur in the statutes with any degree of regularity from
State to State, are generally those which outline the proba-
tioner’s duties with regard to reporting, remaining within
the jurisdiction and maintaining steady employment. There
are scattered references to the probationer’s duty to abstain
from intoxicants, avoid bad company, keep reasonable hours
or undergo medical treatments as directed. However, there
is no uniformity of statutory standards of behavior.

On the whole, the problem as to the conditions which
should be imposed upon probationers has been sadly ne-
glected. The speeches and writings of leaders and workers
in the probation field contain few references to this subject;
it has aroused less controversy and comment than almost
any other aspect of probation work although obviously it
is an important phase of probation procedure.

Probation conditions prove themselves to be of the
greatest utility when they are designed to meet the particu-
lar needs of individual cases. The theory of an individ-
ualization of justice is one of the underlying tenets of the
probation system. For this reason, a policy of fixing terms
by legislative act to meet all cases which may conceivably
arise will prove to be impractical, inadequate, and often
injurious. The best policy is to give probation authorities
wide discretion in the matter of determining what conditions
of probation should be imposed upon individual proba-
tioners.

SUPERVISION OF ADULT PROBATIONERS

The final phase of the probation process is supervision.
In its simplest terms, supervision is the oversight which is
exercised over those who have been placed on probation.
Only a supervisory process which is, in effect, intensive

462

social treatment, highly individualized and purposefully
constructive, can meet the requirements of an adequate p
bation service.

The essential legal framework for a probation sys
need not be elaborate. All that is needed is authority
the courts to suspend criminal sentences indefinitely
statutory provision for an agency to supervise the ofien
thus released. However, true probation treatment canno
given unless active field workers devoting full time to t
duties as probation ofl‘icers are employed for supervis
work.

Satisfactory probation service cannot be expected to e
unless a sufficient number of probation case workers
carry out all the processes of probation treatment are
ployed. There is danger that many communities will
lect probation work almost entirely unless the laws in e
jurisdiction impose upon the authority vested with
appointive power the express duty to appoint full-t
officers. No community can safely depend upon the serv
of volunteer or em oflicz'o oflicers. Where the appoint
of probation officers is left to the discretion of local co
the probation service is often inadequate and perfunct
The situation is usually worse where local fiscal authori
exercise control over appointments.

The personality, training, and experience of the su
vising oflicer in a large measure determine the adeqi
of probation treatment. Lax supervision and failur
deal firmly with those who persistently violate the te
of release can only bring the entire probation system
disrepute. Adequate probation supervision must deal
all phases of the offender’s life, including his family
the community in which he lives. Although there is s
controversy among case workers and writers on pr
tion as to the value and propriety of many specific t
niques for supervision, all recognize the usefuhiess 0
plan of treatment based on the needs, capacities, and l'
tations of each ofi'ender.

The need for mental and psychiatric examination
treatment of probationers is not met in many proba
units. Although, at present, funds to maintain pu

-11,-

i‘ -.
vva

463

clinics for this purpose are insufficient, assistance may be
secured very often from the out-patient clinics of hos-
pitals or from physicians who are willing to devote part of
their time to such service either on a fee or gratuity basis.

"9 l- The establishment by the States of strategically located
psychiatric and medical clinics to serve the criminal courts,

probation, and parole departments in a given region might
provide an acceptable solution of the problem.

In order to deal affirmatively with all the aspects of the
probationer’s life which require treatment, the probation
officer cannot act entirely alone. He must wherever possible
endeavor to secure the assistance and cooperation of com-
munity leaders and agencies. In many cases settlement
houses and other social agencies can perform services for
the offender more effectively than the officer. Responsi-
bility for securing the assistance of other social agencies
rests with the probation officer. This is an indispensable

‘ part of his duty, and where it is neglected probation work

will remain unsatisfactory.
Good probation service is impossible where officers are

‘ compelled to handle too many cases. Nevertheless, few pro.-

bation units are adequately staffed. A case load of 50
offenders per oflicer for supervision has been suggested as
desirable. However, in determining this matter various
factors must be taken into consideration. These include the
training and experience of the officer, the division of duties
(6. 6., investigation and supervision), the geographical dis-
tribution of probationers, the transportation facilities avail-
able, the extent of community resources and community
cooperation with the officer, and the character of the selec-
tive process. The existence, interrelation, and effect of.
these and other factors may render a case load of more or
less than 50 desirable. Nevertheless, case loads in almost all
parts of the country greatly exceed 50. Appreciable reduc-
tions appear necessary before the quality of probation super-
vision can be improved.

Restrictions of the probation period to a term of 1 year,
whether in felony or misdemeanor cases, frequently prevent
completion of the process of social readjustment. Where
statutes limit probation to 1, 2, or 3 years, courts should be '

464

given discretionary power to extend the period. An ind
nite term of probation up to 5 years may be desirable,
extension of the period beyond 5 years would seem to
inadvisable.

In 1931 the National Commission on Law Observance
Enforcement declared that the inadequacy of supervis
constituted one of the chief weaknesses of probation adm
istration in the United States. “Probation degenerates
times into mere legal oversight. * * * Supervision
lax, there being no genuine attempt on the part of the pro
tion ofiicer to see that his probationer really effects a pro
readjustment to the difficulties that have brought him i
conflict with the law.”

Although 7 years have elapsed since the National C
mission on Law Observance and Enforcement criticized
supervision methods then prevailing, it must be said ag
that at the present time the supervisory processes of
probation units leave much to be desired. In too many 0
munities, because of the excessive burden which he car
the probation officer must content himself with the ap
cation of routine and inadequate methods.

In spite of the fact that by numerical count the gre
number of probation units appear to be offering an un
isfactory type of supervision, the picture is not altoge
dark. In a few probation departments, located in wi
separated sections of the country, an earnest effort is b
made to apply the approved methods of social case w
to the supervision of adult offenders. Moreover, the tr
ment which these departments give results in the perma
rehabilitation of many offenders. More hopeful still is
fact that the need for realistic and constructive method
supervision is being realized more and more in large n
bers of probation units.

REVOCATION AND TERMINATION OF PROBATION

In all States except Iowa, Missouri, Montana, N
Dakota, and Wisconsin the courts are the sole author'
empowered to revoke the suspension of sentence and pr
' tion and to order incarceration.

Every probation statute, either in express languag
by reasonable implication, provides that probation ma

465

revoked for any violation of conditions. A few States
go further and permit revocation if it is found that the
probationer practiced fraud upon the court or misrepre-
sented facts prior to being released on probation, or that
his conduct is inconsistent with good citizenship.

The majority of States provide that the court may revoke
probation at any time during the probation period. A few
stipulate, in addition to the above provision, that revoca-
tion may be ordered after the expiration of the proba-
tion period but within the maximum period for which
the defendant could have been sentenced to imprisonment.
Other States, which do not prescribe the duration of the
probation period, apparently permit revocation at any time
provided that the probationer has not been discharged.

The large majority of States require that before revoca-
tion is ordered the accused probationer should be given due
notice and an opportunity to be heard. The statutory pro-
visions on the subject are in many cases vague and the re-
quirement of a hearing must be inferred from language to
the effect that the probationer accused of violating the terms
of his release shall be “brought before the court.” What type
of hearing is sufficient to satisfy the legislative requirement
is seldom specified; a few statutes enjoin the court to accord
a “summary hearing,” or that “due examinations” shall be
made into the charges of violation, or that a “full investiga-
tion and a personal hearing” shall be given.

Practically all probation statutes specifically provide that
upon revocation of probation the court may proceed to order
commitment as if no probation had been granted. The usual
provision is that the court may then impose any sentence
which might originally have been imposed.

The data on frequency of revocation show that (1) 19 per-
cent or about one-fifth of the 19,256 cases studied resulted in
revocation; (2) almost one-third of the recidivists, or 32 per-
cent, had their probations revoked, whereas only 14 percent
of the first offenders were accorded similar treatment; (3)
the probationary terms of 34 percent of the totally unem-
ployed probationers were revoked, as contrasted to only 7
percent of the fully employed probationers; (4) 23 percent of
the negro cases resulted in revocation, compared to 17 percent
for whites; (5) 21 percent of the probationers under 25

466

years of age had their releases revoked, while 14 percent of
those 35 years of age and over were~accorded like treatment.

The philosophy of probation contemplates that if the pro-
bationer properly conducts himself for a given period, super-
vision will be terminated and he will be released from liabil-
ity for further penal treatment. Thus probation statutes in
a majority of the States contain provisions regulating the
final termination of the probationary status and a discharge
of the defendant. In practically all States having provisions
on the subject the court is the proper agency to grant a final
discharge. In a few States the governor may grant a dis-
charge and also in a few States administrative probation
boards have been given the power to grant probation dis-
charges.

Probationers occupy a position between that of the
general citizenry and inmates of penal institutions. How-
ever, their exact legal status is not at all clear in the
present state of the law. If disabilities do attach to
probationers, are they removed after the expiration of
the probation period, or is a pardon restoring civil rights
necessary in order that the person may thereafter enjoy
the ordinary privileges and rights of citizenship? The
answer to this and other questions of the same nature
must wait for a more definite development of the law.
Yet it seems desirable that probationers should always be
carefully instructed as to their civil status from the very
outset of supervision. Otherwise misunderstandings are
likely to arise which will have an unfortunate effect upon
the attitude of the probationer. Unfortunately, in the pres-
ent confusion of the law, not even judges are qualified to
offer such instruction.

SOME FACTORS ASSOCIATED WITH OUTCOME ON
PROBATION

The statistical analyses based upon approximately 20,000
cases clearly indicate that certain characteristics of proba-
tioners are associated with their conduct on probation. Al-
though the six factors studied; namely, race and nativity,
age, marital status and number of dependents, recidivism,
nature of offense committed, and steadiness of employment,

467

do not exhaust all the possible factors which are associated
with probation outcome, the statistical analyses indicate
that at least some of these factors must be given careful
consideration before and after probation is granted.

A factor was considered important when similar signifi-
cant relationships between that factor and probation out-
come were found in many of the probation departments
studied. On the basis of this test of importance, steadi-
ness of employment during the probation period is the
most important factor in its bearing on probation outcome.
The unemployed probationers had a significantly unfavor-
able outcome in 16 of 19 units, while the fully employed
probationers had a significantly better record in 13 of these
units. Moreover, there was a marked decrease in the fre-
quency of violation as the degree of employment increased.
In every department the totally unemployed group had the
highest rate of violation, whereas the fully employed group
had the lowest rate in all but five units. Because of the
consistent significant relationships found for nearly all
departments, there seems to be little doubt that providing
steady employment during the probation period will lead
to a marked decrease in probation violations.

The presence or absence of a history of previous incar- .
ceration is of almost equal importance. Probationers who
had not previously been incarcerated had a uniformly bet.-
ter outcome on probation than offenders who had already
served one or more terms in a penal or correctional insti-
tution. In 15 out of 24 departments, comprising more than
75 percent of the cases considered, recidivists had a worse
behavior record on probation than persons whose case his-
tories revealed no prior commitments. However, even
though the data indicate that recidivists were more inclined
to violate the terms of probation, it is by no means clear
that all second and third offenders are unsuitable for proba-
tionary treatment. It may be that current methods of se-
lection and supervision need to be revised to counteract the
more pronounced criminal tendencies of recidivists.

The analysis indicates that probationers under 25 years
of age violate more frequently than individuals over 35.
After the age of 35 there was no appreciable decrease in

468

the frequency of violation on probation. The analyses also
disclose that those under 20 years of age are more likely to
violate by committing a new offense while on probation,
whereas those 35 and over are less likely so to violate.

Negroes had an unfavorable outcome in 5 out of 18 de-
partments. In the majority of units, however, the data do
not show significant difl’erences between the races. Na-
tivity seems to be even less important than race. Foreign—
born whites had a more favorable outcome than native-born
whites in 3 out of 8 probation departments. Because of
the small number of units and cases involved, it cannot
be said that nativity was of universal importance as to
its bearing on probation outcome.

In regard to marital status and conduct during the pro-
bation period, the analysis indicates that single individuals
violate the terms of probation more frequently than married
persons. However, significant differences in these two
groups were found in only 9 out of 24 departments. Di-
' vorced and separated probationers were also found to have
had an unfavorable outcome on probation in 6 out of 24
departments. There is no reason to believe on the basis of
the data studied that the conduct of married probationers
with more than one dependent differs from that of proba-
tioners with only wives as dependents. It seems that mar-
ried persons, irrespective of the number of dependents, are
inclined to violate less frequently than single, divorced, or
separated offenders.

The nature of the offense committed is the least important
of the items considered. Not only is there an absence of sig-
nificant relationships, but in addition some units reveal a
favorable outcome for a particular type of crime, whereas in
other departments the outcome for the same offense group
is unfavorable. There is, however, some indication that pro-
bationers in the burglary and larceny groups had worse
behavior records during probation than other offenders.
Even though the nature of the offense committed does not
show consistent significant relationships with outcome on
probation, when probationers do violate the terms of release
by committing a new offense, they tend to return to the same
type of crime for which probation was originally granted.

469
JUDGES AND PROBATION

One clear impression stands out from the interviews with
the 270 judges; namely, criminal court judges need much
more assistance in obtaining case-history material about
offenders and also more help in interpreting and applying
such material to individual offenders before sentencing
them. The “hunch system” of sentencing offenders referred
to by many of the judges cannot be justified as a substitute
for a thorough study of the individual characteristics and
problems of the prisoner. Most judges have neither the
time nor the training to collect the type of case-history ma-
terial that they should have before sentenCe is imposed.
Therefore, judges should be provided with well—trained pro-
bation oflicers who can give them such assistance by means
of carefully prepared presentence investigation reports.

The findings of this Survey lend support to the view that
much educational work needs to be done among the judges
of the country in making more clear the functions which
good parole and probation work should and could perform
in controlling and rehabilitating those convicted of crime.
Although the number of judges who confessed a complete
disapproval of parole and probation was small, there were
many who proclaimed a sympathy for the principles of
parole and probation but who demonstrate in their sentenc-
ing practices that they do not understand fully the aims
and objectives of either parole or probation.

Far too many judges are carelessly lenient in the dispos-
ing of cases involving youthful first ofi'enders. Frequently
such offenders are released on probation into the custody of
their parents or relatives who have already demonstrated a
lack of control over them. Also many judges place youth-
ful offenders on probation requiring no supervision other
than the rendering of written reports to the judge periodi-
cally or personally calling upon the judge or some other
officer or volunteer probation sponsor. Such a practice,
which is all too common, leads to a good deal of justifiable
criticism of probation. This criticism is supported by the
statistical data of this Survey which shows that young
offenders on probation commit a higher proportion of crimes
than offenders in older age groups and also that there is a

470

higher proportion of recidivism among youthful offenders
who are granted probation. '

A lack of probation facilities and assistance forces a good
many judges to use volunteer probation sponsors. How-
ever, probation supervision requires good case work tech-
nique, and a volunteer probation sponsor, no matter how
well intentioned, may do much more harm than good unless
he is competently trained. Probation work should be rec-
ognized as a law-enforcement function. Its efficiency
should not be impaired by forcing judges to call upon vol-
unteer probation officers to perform the very important task
of guiding and supervising probationers.

A majority of the judges interviewed admitted an in-
clination toward imposing lenient sentences when defend-
ants plead guilty, justifying the practice chiefly on the
grounds that pleas of. guilty save the State much time and
money and also often indicate that the defendant is ready
to reform his way of life. The practice is deserving of cen-
sure because it gives rise to grave abuses, especially when
the leniency takes the form of granting probation to large
numbers of those who plead guilty.

A defendant’s plea of guilty is no indication in itself
that he would be a good probation risk. His plea usually
is determined by advice 0f counsel and frequently is the
result of a compromise with the prosecutor. The practice
of some judges in refusing probation unless the defendant
pleads guilty is not an exercise of defensible discretion.
Probation should rest entirely upon the facts disclosed by
a thorough case-history study of the defendant.

The Survey shows most of the judges to be in favor of
the use of probation, but many of them believe that it is
misused. The chief criticism made is that some judges
grant probation to many offenders without first making 'a
thorough investigation of the cases.

However, the sentencing records of many judges as well
as the judges’ own statements concerning their sentencing
practices show/ the presence of arbitrary variances and
numerous highly subjective factors and personal biases in
the imposing of sentences. The fact should be recognized
‘ by more judges as well as by the public at large that on the

471

hole a very unscientific job of determining what treatment
hould be imposed upon those convicted of crime is being
one by most judges. One of the most striking impressions
ained from the study is that criminal court judges need
uch more specialized training in those sciences that are
iaking significant contributions to the study of human
ehavior if they are to exercise such a dominant power in
etermining what treatment shall be given to persons con-
icted of crime.
CONCLUSION

Although this Survey sets forth many of the shortcom-

gs of American probation laws and administrative prac-
ices, there is one conclusion which overshadows all the
est; namely,L that the advantages of probation as an aid
0 crime prevention and to the rehabilitation of offenders
ar exceed in importance its weaknesses and defects /
risons today are a success as custodial institutions for
angerous criminals but as forces for 1ehabilitating of-
enders, they stand as sordid reminders of failure. Many

en are being sent to prison only to come out worse social

isfits than when they entered. Now that these facts are
ecognized, it becomes increasingly apparent that the basic
rinciples of probation are sound and that its use should
e- -__widely extended rather than curtailed.

Probation must play a large part in any program which
ims at the ultimate control of crime. As Attorney Gen-
ral Cummings recently pointed out:

Probation is a method of discipline and treatment. If probationers

re carefully chosen and the supervisory work is performed with in-
lligence and understand, we can work miracles in rehabilitation

nudges, lawyers, legislators, law enforcement officers and,
10st important of all, the general public need to be edu-
ated to a better understanding of the work which an ade-
uately staffed, well financed, and efficiently administered
iobation system can and should per‘f01m in any program
hich seeks to improve the administration of criminal

stice. ,

This Survey is presented to the public in the hope that its
ndings will be of value in the Nation—wide movement
hich seeks to improve the administration of probation.

73115—39—VOL. 11 31

 

APPENDIX A
BIBLIOGRAPHY
I. BOOKS

Bates, Sanford. Prisons and Beyond. Macmillan, New York, 1936.

Beard, Belle Boone. Juvenile Probation. American Book Co., New
York, 1934.

Best, Harry. Crime and the Criminal Law in the United States.
Macmillan, New York, 1934, ch. LIV, “Probation,” pp. 505—519.

Cantor, Nathaniel F. Crime, Criminals and Criminal Justice. Holt,
New York, 1932, ch. XX, “Probation,” pp. 337—352. ‘

Cooley, Edwin J. Probation and Delinquency. Nelson, New York,
1927.

Culver, Dorothy C. Bibliography on Crime and Criminal J usticc,
1927—31. Wilson 00., New York, 1934.

Gault, Robert H. Criminology. Heath, Boston, 1932, ch. XVII,
“Extrainstitutional Treatment of Criminals,” pp. 347-356.

Gillin, John L. Criminology and Penology. Appleton Century, New
York, 1935, ch. XXXIV, “Probation.”

Glueck, Sheldon and Eleanor ’1‘. One Thousand Juvenile Delinquents.
Harvard Univ. Press, Cambridge, 1934.

G-lueck, Sheldon (Editor). Probation and Criminal Justice. Macmil—
lan, New York, 1933.

Halpern, Irving W. A Decade of Probation. Unpublished Manu-
script, 1938.

Haynes, Fred E. Criminology. McGraw Hill, New York, 2d ed.,
1935, ch. XV, “Probation,” pp. 421—447.

Healy, William, and Bronner, Augusta. Delinquents and Criminals:
Their Making and Unmalcing. Macmillan, New York, 1926.

Johnson, Fred R. Probation for Juveniles and Adults: A Study of
Principles and- Methods. Century, New York, 1928.

Lou, Herbert H. Juvenile Courts in the United States. Univ. of
N. C. Press, Chapel Hill, 1927, “Probation,” pp. 147*167 and Index.

Massachusetts (State). Report of the Special Crime Commission.
Mass. Sen. Doc. No. 125, 1934.

Miller, Justin, and others. Adult Probation. Inst. of Govt, Univ. of
Southern California, Los Angeles, n. d.

Monachesi, Elio D. Prediction Factors in Probation]. Sociological
Press, Minneapolis, Minn., 1932.

Morris, Albert. Criminology. Longmans Green, New York, 1934, ch.
XV, “Probation and Its Administrators,” pp. 301—324.

National Commission on Law Observance and Enforcement. Report

on the Causes of Crime (No. 13). Gov. Printing Office, Washington,
D. C., 1931.

473

ational Commission on Law Observance and Enforcement. Report
on Penal Institutions, Probation and Parole (No. 9). Govt. Print-
ing Office, Washington, D. 0., 1931.

rew York (City), Probation Department (Ct. of Gen. Sess.). Pro-
bation and the Criminal Offender, 1931.

ew York (State). Repart of the Crime Commission. New York
Legis. Doc. 94, 1927.

rison Industries Reorganization Administration. The Prison Labor
Problem in California. Govt. Printing Office, Washington, D. 0.,
1937. .

rison Industries Reorganization Administration. The Prison Labor
Problem in Texas. Govt. Printing Oflice, Washington, D. 0., 1937.
iley, R. J. Working Manual for Juvenile Court Ofiicers. Univ. of
Chicago Press, Chicago, 1932.

utherland, Edwin H. Principles of Criminology. Lippincott, Phila-
delphia, 1934 (Rev. Ed.), ch. XVIII, “Probation” pp. 349—377.

tate of New Jersey, Emergency Relief Administration. Laws and
Legal Procedures: a Handbook for the Social Worker, 1935.

man, Joseph N. A Judge Takes the Stand. Knopf, New York,
1933.

illiamson, Margaretta. The Social Worker in the Prevention and
Treatment of Delinquency. American Association of Social Work-
ers, Columbia Univ. Press, New York, 1935, pp. 3—97.

oung, Pauline V. Social Treatment in Probation and Delinquency.
McGraw-Hill, New York, 1937, p. 682.

II. ARTICLES

ates, Sanford. “Probation and Parole as Elements in Crime Pre-
vention,” Law and Contemporary Problems, October 1934, vol. 1,
p. 484.

e11, Marjorie. “Probation as an Unknown Quantity,” Proceedings,
American Prison Association, 1934, pp. 281—89.

hute, Charles L. “Developing Successful Probation Personnel,” Pro-
ceedings, American Prison Association, 1936, pp. 86—94.

.hute, Charles L. “The Extension of Probation in Criminal Courts,”
Annals American Academy of Political and Social Science, 1928,
p. 137.

"hute, Charles L. “A New Deal for Probation and Parole,” Proba-
tion, December 1935, vol. XIV, p. 23.

hute, Charles L. “Probation and Suspended Sentence,” Journal of
Criminal Law, 1922, vol. 12, p. 558.

hute, Charles L. “Probation Service Today—PrOgress or Retro-
gression,” Yearbook, National Probation Association, 1930, p. 89.
hute, Charles L. “Progress of Probation,” Journal of Criminal Law
and Criminology, June 1933, vol. 24, p. 60.

‘hute, Charles L. “State Supervision of Probation,” Journal of
Criminal Law, 1918, vol. 8, p. 823.

rawley, Edward J. “Aiding the Adult Probationer,” Yearbook, Na-
tional Probation Association, 1936, pp. 232-239.

474

“Crime and the Georgia Courts,” Journal of Criminal Law, 1925,
vol. 16, p. 169.

G-lueck, Sheldon S. “Contribution to Correctional Science,” Yearbook,
National Probation Association, 1936, pp. 32544.

Glueck, Sheldon S. “Future of American Penology,” Vital Speeches,
November 18, 1935, vol. 2, p. 96.

Glueck, Sheldon S. “Psychiatric Treatment and Probation,” Year-
book, National Probation ‘Association, 1923, p. 57.

Hagerty, Frank W. “The Delinquent As A Case Problem,” Yearbook,
National Probation Association, 1935, pp. 48—60.

Halpern, I. H. “Practical Problems in Administering Probation,”
Yearbook, National Probation Association, 1931, p. 105.

Hiller, Francis H. “Adult Probation Laws in the United States,”
Yearbook, National Probation Association, 1930, p. 147.

Hiller, Francis H. “Legal Summary; Legislation and Decisions affect-
ing Probation and Juvenile Courts, 1935,” Yearbook, National
Probation 'Association, 1935, pp. 241—52.

Hiller, Francis H. “Probationers in C. C. C. Camps,” Yearbook,
National Probation Association, 1935, pp. 121—30.

Hughes, Charles E., Jr. “Probation Progress,” Yearbook, National
Probation Association, 1932—33, p. 259.

King, Langston G. “Adult Probation in the South,” Proceedings,
American Prison Congress, 1935, pp. 113—122.

MacCormick, A. H. “Crime Prevention Through Probation,” Vital
Speeches, March 25, 1935, vol. I, p. 399.

Mead, Bennet. “Evaluating the Results of Probation,” Journal of
Criminal Law and Criminology, November-December 1932, vol. 23,
p. 631.

Mead, Bennet (Chairman). “Probation Statistics,” Yearbook, Na-
tional Probation Association, 1934, pp. 194-198.

McCabe, Francis D. “Church Participation in a Probation Program,”
Yearbook, National Probation Association, 1935, pp. 188—199.

Mimms, Thomas B. “What the State Should do for Probation,”
Proceedia-igs, American Prison Congress, 1935, pp. 122—126.

Moore, Joel R. “The United States Probation System,” Journal of
Criminal Law and Criminology, November-December 1932, vol, 23,
p. 631.

Murphy, Joseph P. “Does Conviction Mean Punishment?” Proceed—
ings, Attorney Gieneral’s Conference on Crime, Washington, D. 0.,
December 1934, p. 142.

New York (State). Proceedings, Governor’s Conference on Crime,
the Criminal, and Society, J. B. Lyon, Albany, 1935, see sec. V,
“Probation, Parole, and Rehabilitation” pp. 979-1066.

Pyle, Dan. “Probation as the Judge Sees It,” Proceedings, American
Prison Congress, 1936, pp. 71—80.

Reeves, Elmer W. “Casework with the Adult Probationer,” Yearbook,
National Probation Association, 1936, pp. 222—232.

Schramm, Gustav L. “Developing Probation as a Profession,” Yea-r-
book, National Probation Association, 1936, pp. 298—308.

475

chroeder, Paul L. “Probation and the Court—~Clinic Relationship,”
Proceedings, American Prison Congress, 1936, pp. 81—85.

elling, Lowell S. “The Psychiatrist and the Probation Oificer,”
Yearbook, National Probation *Association, 1936, pp. 266—279.
trahorn, John S. “Probation, Parole, and Legal Rules of Guilt,”
Journal of Criminal Law and Criminology, July 1935, vol. 26, p. 168.
ullivan, Agnes C. “Principles and Values in Case Recording,” Year-
book, National Probation Association, 1936, pp. 240—252.

lman, Joseph N. “Chaos in Criminal Justice,” American Mercury,
January 1935, vol. 34, p. 80.

lman, Joseph N. “Public Opinion and Judges’ Attitudes,” Yearbook,
National Probation Association,~1932—33, p. 57.

pton, Charles H. “Supervision of Federal Probationers in Northern
California,” Pacific Coast International, November 1937, p. 34.
iener, Cecil B. “The Probation Triangle,” Yearbook, National Pro-
bat/ion Association, 1936, pp. 317—324..

iener, Cecil B. “Two Way Expectations,” Probation, April 1936,
vol. XIV, p. 49.

illiston, Samuel. “Does A Pardon Blot Out Guilt,” Harvard Law
Review, 1915, vol. 28, p. 647.

III. PAMPHLETS

arpenter, William S., and Stafford, Paul T. Report on a Survey of
Probation in New Jersey. Princeton Univ., School of Public and
International Aifairs, Princeton, N. J ., 1934.

iller, Francis H. Adult Probation Laws of the United States. Na-
tional Probation Association, N. Y., 1933.

linois State Probation Ofiice. Probation Manual: A Guide for those
Administering Probation. Prepared by Mrs. George Thomas Palmer,
1932.

diana, Division of Probation. Indiana Probation Handbook. State
House, Indianapolis, 1936.

assachusetts, Board of Probation. Annual Report. Boston, 1910.
ational Probation Association. Directory of Probation Officers in
the United States and Canada. 1934.

ew York State, Commission to Investigate Prison Administration
and Construction. Probation in New York State. J. B. Lyon, Al-
bany, 1933.

ew York State, Department of Correction, Division of Probation.
Report. Albany, 1908.

1mer, Leo J. Psychiatry and the Social Adjustment of Probation-
ers. N. Y. State Dept. of Correction, Division of Probation, A1-
bany, 1932.

rison Industries Reorganization Administration. Prison Labor
Problem in Maryland. Govt. Printing Office, Washington, 1936.
rison Industries Reorganization Administration. Mimeograpbed re-
ports on the prison labor problem in Delaware, Arkansas, Oklahoma,
Tennessee, Texas, and Vermont are also available.

476

Stern, Leon and Dunham, Arthur. The Juvenile Court of Lacka-
wanna County, Pennsylvania. Pennsylvania Committee on Penal
Affairs, April 1930.

Stern, Leon. The Treatment of Adult Ofl'enders and Children by the
Courts of Delaware County, Pennsylvania. Pennsylvania Com-
mittee on Penal Affairs, 1931.

Stem, Leon and Barnhurst, Ada L. The Treatment of Adult Offenders
and Children in Lancaster County, Pennsylvania. Pennsylvania
Committee on Penal Afiairs, 1932.

Stern, Leon. Work of the Juvenile Court of Allegheny County and
the Juvenile Detention Home. Pennsylvania Committee on Penal
Affairs, January 1931.

Topping, Ruth. Women’s Misdemeanants Division of the Municipal
Court of Philadelphia. Harrison Foundation, Philadelphia, 1932.
U. S. Department of Commerce, Bureau of the Census. Judicial
Criminal Statistics, 1934. Govt. Printing Office, Washington, 1936.
U. S. Department of Justice, Bureau of Prisons. Federal Ofl’enders

1930—31. U. S. Penitentiary Annex Press, 1932.

—- Federal Offenders, 1931—32. U. S. Penitentiary Annex Press,
1933.

—— Federal Ofienders, 1932—33. U. S. Penitentiary Annex Press,
1934.

-—— Federal Offenders, 1933—34. Federal Prison Industries, Inc.
Press, 1935.

—— Federal Ofiend‘ers, 1934—35. Federal Prison Industries, Inc.
Press, 1936.

U. S. Department of Justice. Minimum Standards for U. S. Proba-
tion Service. (Circular, No. 3072) January 18, 1938.

U. S. Department of Labor, Children’s Bureau. The Child, the Family
and the Court. Govt. Printing Office, Washington, D. 0., Bulletin
No. 193 (revised) 1933.

U. S. Department of Labor, Children’s Bureau. Juvenile Court Stand-
ards. (Pub. No. 121) Govt. Printing Office, Washington, D. C.,
1923.

U. S. Department of Labor, Children’s Bureau. Juvenile Court Sta-
tistics and Federal Juvenile Offenders, 1933. Govt. Printing Office,
Washington, D. 0., Bulletin No. 232, 1936.

Virginia Commission to Study Prison Sentences, Indeterminate Sen-
tence, Parole, Probation, and Good Time. Report of the Com-
mission. H. Doc. No. 3, Richmond, Va., 1934.

Virginia, Governor’s Advisory Legislative Council. Probation and
Parole: Report to the Governor. Containing Recommendations
Submitted by the Legislative Council. Division of Purchase and
Printing, Richmond, Va., 1935.

Worthington, George E. Criminal Division Probation in Municipal
Court of Philadelphia. Harrison Foundation, 1930.

Worthington, George E. Men’s Misdemeanants Division of the Court
of Philadelphia. Harrison Foundation, 1932. See: chs. V to IX,
pp. 63—141.

APPENDIX B

CHEDULE USED IN C O L L E C T I N G JUDGES’
VIEWS CONCERNING RELEASE PROCEDURE

orm CA—lS.

SUPPLEMENTAL COURT SCHEDULE (ADMINISTRATIVE)
(Courts of General Criminal Jurisdiction)

Name Of court Address ________________

 

I. PERSONNEL INFORMATION REGARDING THD JUDGE

1. Name of judge 2. Title ______________
3. Mode of selection:

(a) Original
(b) Present office

(0) Present term

 

 

 

4. Length of service
5. Length of term
6. Education

 

 

 

7. Other qualifications

 

8. Former experience

 

9. Salary (per annum) $ __________ 10. Retirement _____________

 

Remarks :

 

 

II. INDIVIDUAL PRACTICES

1. During the course of trial, What circumstances of mitigation or
ggravation tend to influence the judge frequently, in addition to
he facts in evidence, in fixing the sentence and the form of dis-
osition to be made (Observation of court practices and indirect
uestioning should be the basis of this inquiry as much as possible) __

 

2. What characteristics of defendants, such as age, sex, race,
ativity, marital status, number of dependents, etc., influence the
'udge unfavorably (longer sentences and more severe dispositions)

(477)

478

 

(a) Irrespective of offense

 

 

(b) In certain offenses only (Specify)

 

3. What characteristics of defendants, such as age, sex, race,
nativity, marital status, number of dependents, etc., influence the
judge favorably (for shorter sentences and more lenient diSpositions)

(a) Irrespective of offense

 

 

 

(b) In certain offenses only (specify)

 

4. (a) What information from the case history, aside from the
facts in evidence, does the judge utilize in fixing the sentence and
the disposition

 

 

 

(b) Is this information available in all cases

 

(c) If the information is available only in certain cases, specify
the types of cases in which it is usually available ________________

 

5. (a) Where case history information is required, who is respon-
sible for securing such information

(b) HOW is it Obtained

 

 

(c) How detailed and exhaustive is it (include sample case his-
tories Where possible; Where unable to obtain representative samples,
describe in detail just What kind of information is available) ______

 

((1) Who else beside the judge makes use of the case history (court
psychiatrist, others—specify)

 

 

6. (a) To what extent is the imposition of sentence influenced by

the testimony of the accused

 

(b) By a plea for leniency by the accused

 

(o) By a plea of guilty
((1) By the subject turning state’s Witness Where more than one

 

offender is involved

 

479

III. IDEOLOGY or THE JUDGE:

1. (a) What is the attitude of the judge with regard to probation

hat is, does he regard the practice as desirable)

 

 

(b) Does he regard probation:

(1) As a form of leniency

 

(2) As a form of correctional treatment
(3) Other (specify)
(o) What type of offender is suitable for probation, according to
e judge
(d) What does the judge think should be the duties and qualifica-
ons of probation officers
(6) Has the judge any definite views as to how to improve proba-
on work
(f) Does the judge believe that the court should maintain contact

 

 

 

 

 

ith cases after the imposition of sentence

 

 

(g) If yes, how does he believe this should be accomplished ______

 

2. What are the judge’s views with regard to adequacy of present

arts in meting out sentences

 

o

 

3. Would the judge favor that sentence be fixed:

(a) By a board or a group independent of the judge (specify make-
of board)
(2)) A board which includes the judge as a member (specify mem-

 

rship of board)

 

 

(c) The judge with the advice of a board (specify membership of
ard)

 

 

(d) Other (specify)

 

 

4. Does the judge believe that the work of the court is complete—
(a) When subject is convicted

 

480

(b) When sentence is pronounced

 

(c) Only when entire sentence has been served

 

 

5. Does the judge favor indefinite, indeterminate, or fixed sentences

 

(give his views in detail where possible)

 

6. What in the opinion of the judge are the primary objectives of
criminal law:

(a) Punishment

 

 

(1)) Protection of society ____
(o) Other (specify) ’

 

 

7. Parole :

 

(a) Does the judge favor parole

 

(b) In What types of cases

 

(0) Under what conditions

 

 

8. What does the judge regard as the object of parole (leniency,

rehabilitation, sufiicient punishment, etc.)

 

 

9. (a) Does the judge believe that the court should fix the time

 

 

 

for parole __

 

(b) That the court should have a voice in fixing the period of parole

 

 

(c) That parole should be granted by a qualified board independent
of the court but connected with the institution

 

 

 

(d) By a qualified board independent of the court and the insti-

tution

 

 

(e) Other views of judge as to paroling authority and basis of

selection for parole (describe in detail)

 

 

481

(7‘) What reasons does the judge give to justify his views as to

ho should parole and what types of cases should be paroled _____._

 

10. (a) Does the judge believe that parole supervision should be
der the control of the court

 

(b) If so, for what reasons

 

 

 

 

(c) In the opinion of the judge what authority or authorities
ould have power to apprehend parole violators (give his views in

tail)

 

 

 

 

11. Does the judge believe that parole revocation should be a func-
on of the court (give his views in detail)

 

 

12. How in the opinion of the judge can society reduce prevalence

crime (give his views in detail)

 

 

Remarks :

 

 

 

 

 

, (Signature of regional director)

 

(Signature of official)
(Other than regional director)

 

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DEPARTM

 

 

 

 

   

 

 
 

  

  

 

 

 
 

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hr :IIL

 

 

 

 

 

 

 
 

 

 

 

 

The Attorney General’s Survey
of

* Release Procedures

PARDON

 

UNITED STATES
GOVERNMENT PRINTING OFFICE
WASHINGTON : 1939

BOARD OF EDITORS

WAYNE L. MORSE PAUL E. RAYMOND HENRY WEIHOFEN
HOWARD B. GILL WILLIAM HURWITZ

EXECUTIVE COMMITTEE

BRIEN M'OMAHON, fChairman, Assistant Attorney General
JAMES V. BENNETT, Director, Bureau. of Prisons
GORDON DEAN, Special Executive Assistant to the Attorney General

WAYNE L. MORSE, Edttor—tn—chtef
HENRY WEIHOFEN, Editor
HANS VON HENTIG, Associate Editor

 

For sale by the Superintendent Of Documents, Washington, D. C. - Price, 45 cents

TABLE OF CONTENTS

REFACE _______________________________________________
HAPTER I. THE HISTORY OF PARDON_. ____________________
Origin—Mosaic Law—Greek Law—Roman Law—German
aw—French Law—English Law—American Law—Conclusion.
HAPTER II. WHY PARDON? ______________________________
Is Pardon Necessary—Pardon As a Means to Restore the
ust Law—Unjust Pardon—Pardon and Technical Violations of
aw—Pardon and Transition of Power—Pardon on the Ground

f Innocence—Ways to Correct Miscarriage of Justice—Pardon
or Reform—Reasons of State—Superstitious Grounds.
HAPTER III. THE PARDONING POWER-______._ ____________
Historical Development—In Whom Pardoning Power is
csted—Composition of Pardon Boards—Power of the Legis-
ature to Grant Pardons—Legislative Regulation of Execu-
ive Clemency Power—Judicial Exercise of the Pardon Power-—
udicial Interference With the Pardoning Power.
HAPTER IV. LIMITATIONS ON THE PARDONING POWER ______
Offenses Pardonable—Time When Pardon May be Granted—
ublicity Requirements—Impeachment of Abuse of the Par-
Oning Power. '
HAPTER V. THE PARDONING PROCEDURE __________________
Applying for Pardon—Investigation—Hearings—Delivery
nd Acceptance—Revocation.
HAPTER VI. PLEADING AND PROOF OF PARDON ____________
Time of Pleading Pardon—Proof of Pardon—Variance in
leading and Proof.
CHAPTER VII. CONDITIONAL PARDON, COMMUTATION, RE—
PRIEVE, REMISSXON ___________________________________
Conditional Pardon—Commutation—Reprieves—Remission
of Fines and Forfeitures—Furlough—Miscellaneous Release
Procedures—Conclusion.
CHAPTER VIII. AMNESTY _________________________________
Origin of Amnesty—Legal Nature of Amnesty—The Amnesty
Granting Power—Legislative Power to Grant Amnesty—Neces-
sity of Acceptance—Exempted Types of Crime—The Effects of
Amnesty—The French Amnesty Doctrine—-The Italian Doc-
trine—The German Doctrine.
CHAPTER IX. THE EFFECT OF A PARDON __________________
A New Man—Does a Pardon Imply Guilt—Does a Pardon
Blot Out Guilt—Specific Effects of Pardon—Right to Vote—
Right to Hold Office—Competency to Serve As Juror—Com-
petency to Testify As Witness—Effects Upon Private Rights—

(III)

Page
111

55

87

133

155

187

195

237

267

IV

Civil Death—Revocation of Suspended Sentence or Parole on the
Ground of a Crime Subsequently Pardpned—Efi'ect Upon
Privilege Against Self Incrimination—Effect Under Licensing
Laws—Disbarment—Defamation—Eligibility to Military Serv-
ice—Incrimination and Deposition Laws—Naturalization—
Effect on Other Crimes—Effect in Other Jurisdictions-—
Summary. '
CHAPTER X. CONCLUSIONS AND RECOMMENDATIONS _________
Introductory—Why Pardon? A Re-Examination—Should
Pardon and Parole Administration Be Combined?—Organiza—
tion of Pardon Administration—Procedure—Pardons by the
Legislature—Conclusion.
APPENDIX A. EXTENT OF PARDON
APPENDIX B. BIBLIOGRAPHY

Page

295

FOREWORD

Three years ago at my direction there was commenced
research project known as the Attorney General’s Survey
f Release Procedures. The undertaking was financed by
. substantial grant of funds by the Works Progress Admin-
tration; but the professional direction of the project was
ade the responsibility of the Attorney General and a
taff of persons designated by him. In spite of many diffi-
ulties, some foreseen and others unforeseen, the Survey,
ubject to certain necessary limitations, has been completed.
1‘: is my pleasure to present to the public these five volumes
f source material dealing with the various methods for
he release of persons who have been convicted of crime.
There were suggestions at the outset that the Survey be
imited to a probe of the subject of parole. If it had been
0 limited I would not have been interested. My funda-
nental purpose was to secure a broad view of the whole
eld of release procedures including probation, parole,
ardon, and other forms of release both from penal insti-
utions and through the courts. No such study had there-
ofore been undertaken.
.T here is in the United State no uniform system of proba-
tion or parole or pardon. Widely varying methods of ad-
inistering these procedures prevail in the various juris-
ictions, State and Federal. Very little is known about
hem. The study was instituted in a spirit of experimenta-
ion. It does not purport to furnish the answers to all of
the questions which arise in this broad field. These five
volumes do, however, furnish valuable source materials
which lay the foundation for intelligent work by legis-
lators, administrators, scientists, students, and all others
who are concerned with the problems involved in the pun-
ishment and rehabilitation of convicted men. These studies
form a part, but only a part, of the need for sound research
data in every phase of criminal law administration. The
process of fact-finding must be continuous and exhaustive;
and it is my hope that this Survey will act as a stimulus to

(V)

VI

the development of permanent research programs. The
success of this effort may be judged by the extent to which
public opinion demands the necessary reforms in the ad-
ministration of criminal justice which are pointed out in
the reports.

I express my deep appreciation to all those whose con-
scientious efforts have gone into the making of the Survey,
particularly to J ustice Justin Miller, who prior to his ap-
pointment to the United States Court of Appeals for the
District of Columbia served as Director of the Survey, and
to Dean Wayne L. Mo1se, \\ ho succeeded him as Director
and Editor 111 Chief.

I wish to acknowledge my debt of gratitude to the large
number of relief workers and administrative officers of the
Survey staff whose loyal services have made possible the
completed reports. A special word of thanks is extended
to the following groups and individuals: The members of
the executive committee of the Survey, Mr. Brien McMahon,
Mr. James Bennett, and Mr. Gordon Dean; the statistical
specialists, members of the technical advisory committee,
Prof. Samuel A. Stoufi’er, chairman, Mr. Ronald Beattie,
Dr. Morris A. Copeland, Dr. \V. Edwards Deming, Dr.
Alba M. Edwards, Prof. Merrill M. Flood, Dr. Milton C.
Forster, Mr. Bennet Mead, Prof. Thorsten Sellin, Mr. Fred-
erick F. Stephan, and Prof. S. S. ‘Nilks; Messrs. Sanford
Bates, Lovell Bixby, and Barkev S. Sanders who were very
helpful in preparing the original plans for the Survey;
Dr. Milton Forster of the lVorks Progress Administration
whose splendid cooperation made possible the completion
of the study; and the sev ral editors, associate and assistant
editors, whose writings speak for themselves, Mr. Howard
Gill, Mr. lVilliam H111“ itz, Dean Paul Raymond, Prof.
Henry \Veihofen, Dr. Hans von Hentig, Miss Helen Fuller,
Mr. Charles Morris, Mrs. Elizabeth Peterson, and Mr. Ivar
Peterson.

I am also under deep obligation to the Governors and
other officials of the States whose fine cooperation made
possible the collection of the source material.

HOMER CUMMINGS,
Attorney General.

PREFACE

The subject of pardon must be included in any compre-
nsive study of release procedures. Operating within its
oper sphere, pardon fulfils a needed function in the ad-
inistration of criminal justice. With the growth of addi-
onal proCedures of release, and with the variations on the
iginal concept of pardon which have been introduced into

r law, there has been misapplication of pardon and con-

sion as to its nature and function.

In this country there has never been an adequate treat-
ent of the subject of pardon. There cannot even be found
comprehensive history of pardon, notwithstanding the im-
ortant role which this institution has played in the de-
elopment of many of our legal ideas. Lack of penetrat—
g study has led to misinterpretation, obscurity, and con-
adiction in the law itself.

Courts have been misled into ill-considered dicta and in-
upportable holdings. Examples are numerous. Thus it
as been said that a pardon is a sort of deed which cannot
e valid without acceptance by the recipient. Nevertheless,
an a man get himself hanged in spite of the decision of
he executive to the contrary? Can he insist on retaining
is cell in spite of a legal order for release? It is safe to
ay that no court would actually so hold in spite of oft
‘epeated dicta to the contrary.

Another dictum which has persisted in the decisions of

any jurisdictions is that a pardon wipes out the crime

s completely as if it had never been committed, and makes
he criminal “a new man.” Yet the courts themselves have
eld that for some purposes, a pardon does not wipe out
he fact of a conviction and the recipient is regarded, not
as “a new man” but as a convicted criminal. This is true,
for example, when the pardoned criminal takes the stand
as a witness in a trial.

In many cases, the effect which should be given to a
pardon might well be made to depend upon the ground for
which it was granted. A pardon granted because later

(VII)

VIII

evidence showed the condemned man to have been innocent
might well be held to “wipe out” the crime for all purposes,
whereas a pardon granted because the convict helped quell
a mutiny of fellow convicts might not. Yet no distinc-
tion of this sort exists in our law, nor does it seem logical
to lump pardons granted for innocence together with par-
dons granted for other causes.

The law is silent as to the possible difference between an
individual pardon and a general pardon or amnesty. Our
courts have held without much debate that power to grant
pardons includes power to grant general pardons. Appar-
ently neither our constitution drafters nor our courts have
considered that there may be good reason for differentiating
between the two, as is done in France for example, where
the President of the Republic has power to grant individual
pardons, but amnesties can be granted only by act of the
National Assembly.

Nor is there to be found any adequate discussion of the
power of the legislature to grant pardons. It is generally
taken for granted that constitutional provisions giving the
President or governor power to pardon are exclusive, and
leave no power to be exercised by the legislature. The
courts have so stated in numerous cases. But this seems de—
batable, to say the least. This country has fortunately been
largely free from political upheavals which may give rise
to occasion for amnesties, but the only occasion in our his—
tory when the need for amnesty arose, the Civil War, made
it clear how important it is that the legislative branch
retain power to act. The amnesties granted during and
after the Civil War by Congress and state legislatures are
usually ignored by the courts which hold that the pardon-
ing power of the executive is exclusive. Our lack of occa-
sion for amnesties in the past probably accounts for the fact-
that the subject of amnesty has never received very careful
study.

Particularly with regard to the release procedure of
parole has there been a failure carefully to delimit the
proper field for the exercise of the pardoning power. The
proper sphere for exercise of the pardoning power is clem-
ency or mercy. Parole, rightly understood, has nothing
to do with either. It is safe to say that ‘no state can hope

IX

to perfect an adequate and workable parole system so long
as parole is treated merely as a type of conditional pardon.
Contrary to recommendations which have sometimes been
made in the past, that the administration of pardon and
parole be combined in one board, this report recommends
that the two be carefully kept separate.

All in all, the law of pardon has been a neglected orphan,
allowed to grow without benefit of the careful grooming
which has been accorded other branches of the law. Small
wonder then that it presents a somewhat disorderly spec-
tacle and has picked up certain unfortunate attributes. In
the present report the attempt is made to examine the law
in regard to the many questions relating to the nature,
effect and function of pardon. It is hoped that this report
will help clarify existing issues in the law of pardon and
will be of assistance in improving the administration of
pardon.

The authors wish to acknowledge the very valuable as-
sistance of Honorable Golden W. Bell, Assistant Solicitor
General, who read the manuscript of this volume and of-
fered many valuable suggestions. This Survey could not
have been written had it not been for the cooperation of
many state officials who checked the comments concerning
the practices in their respective states. Acknowledgment is
also due to Mr. Ivar Peterson, Miss Helen Fuller, and Mrs.
Elizabeth Peterson for their assistance in assembling ma-
terial and editing manuscript.

VVAYNE L. MORSE, E dito-r-tn—th'ef.
HENRY VVEIHOFEN, E ditor.
HANS VON HENTIG, Associate E dttor.

CHAPTER I

THE HISTORY OF PARDON
ORIGIN

The institution of pardon and the practice of pardoning
cannot be removed from their relation with punishment.

Most of the ideas mankind has developed, retained, or dis-
carded relating to punishment are reflected in our theory

of pardon and in the different ways in which pardon is
granted.

Most of the ancient ideologies concerning the origin and
the treatment of crime did not allow for pardon. Crime was
originally considered by many peoples as a kind of conta-
gious evil, something physical and detrimental, to be burnt,
destroyed, washed, beaten, driven away. Otherwise, it would
spread like a disease and infect the whole community.
Pardon would have been an imprudent and dangerous
break in the line of social defense. Ideas of this kind are
reflected in many rules of. the Bible.1 They are even more
clearly seen in the old Vedic Law of India 2 and were not
unknown to the Greeks?

1 “A root that beareth gall and wormwood.” Deuteronomy XXIX, 18.

“The high—priest, placing his hand on the head of the living goat, confessed
over it all the sins of Israel which were in this manner transmitted to the
animal.” (Encyclopedia of Religion and Ethics (New York, 1921), vol. XI,
p. 221.)

2111 the ancient Vedic law the guilt or sin was imagined to be, like a dis-
ease or similar obnoxious potencies, solid or volatile matter, which could be
washed oflf by water, burnt by fire, banished by magic amulets, or removed by
the most diverse means. See Oldenberg, Die Religion des Veda (Berlin,
1893). p. 288.

“The notion,” remarks Frazer (Golden Bough (London, 1900), vol. III,
p. 1), “that we can transfer our guilt and pains and griefs to some other
being * * * is familiar to the savage mind. It arises from a very
obvious confusion between the physical and the mental.”

8Among the ancient Greeks, the unknown murderer who caused the out-
raged heaven to visit the country with plague and bareness of earth, beast,
and man is called “misma” in the banishing curse of Oedipus. (Sophocles,
Oedipus Tyrannos, verse 100 et seq.) “There seems to be no doubt that at one
period the people were regarded as actually polluted by the presence of a
murderer. He was regarded as a plague-spot, a center of contagion.”

(1)

2

Other conceptions connected crime. with the commands
of the gods. The criminal was a disobedient, a rebel
against the will of the deity. The neglected gods were
angry and had to be appeased by the sacrifice of the sinner.
There could be no question of depriving God of his victim.
The gods could pardon, but man could not.

The conceptions underlying the legal custom of blood-
revenge also conflicted with the idea of pardon. Blood-
revenge was the religious duty of the next kindred. He
did' not so much hate the killer of his father or brother as
he feared the ghost of the killed who demanded the blood
of the murderer before he could go to rest. The dead vic-
tim was not susceptible to ideas of renunciation and for-
giveness. And whoever dared to interfere with his rights
would become the object of his disappointed and powerful
anger.

Another primitive practice, the domestic disciplining by
the family chief of his wife, his children, and his servants—
perhaps in a conflict of tender feelings and ill-will—first
introduced the practice of pardon into his unrestricted
jurisdiction. The lack of restrictions meant lack of pres-
sure by fixed rules or old established conceptions. Pardon
could be granted because there were no limits above or
below. The expedient turned out to be operative, and so
the family chief or tribal chief transmitted it to his suc-
cessor kings and priests.

MOSAIC LAW

Curbing the blood-feud.—Passages in the Bible4 and in
Josephus 5 show the struggle between blood-revenge and the

(Encyclopedia of Religion and Ethics (New York, 1921), vol. XI, 9. 547.)
“In the homicide Code of Draco,” says Miss G. Smith (The Administration
of Justice from Hesiod to Solon (Chicago, 1924), p. 4), “There is a provision
that any citizen may either kill or bring before the authorities by the process
of tin-(1709773 a homicide who has illegally returned from banishment. He is
not prosecuted as a murderer, but as a polluted person wrongfully living in
the city and exposing everybody to pollution. He is a public menace.” An
act of pardon was inconceivable in all these cases.

‘11 Samuel 14: 6—11. David confirms his pardoning decision with an
oath to stop any return: “As the Lord liveth, there shall not one hair
of thy son fall to the earth”. (verse 11).

5The story is much more vividly told by Josephus (Antiqu. VII, ch.
VIII: 4). TWO sons of an aged woman had a quarrel and one was killed.
The kindred insisted on exercising the customary blood—revenge, and the

3

rising political power of the kina. As the might of the king
was generally superior, his will usually prevailed and the
blood—revengers had to give ground. The king “pardoned”
by restraining the traditional demands of the injured
parties; although he had no “right” to do so in the modern
sense of the term, he had the power and he was well aware
of the political—perhaps even economic—advantages which
could be drawn from his interference. Out of the exercise
of mere power slowly developed rules and laws.

Such rules appear very early in legal history, and they
attack the weakest point in the line of old habits. Deuter-
onomy shows such an invasion of reformed ideas. They are
not at all victorious at once; they suffer defeats and re-
actions, but slowly they are embedded, first in the hearts of
the people and then in the practice of their rulers. To men-
tion but one passage: “Fathers shall not be put to death for
sons; and sons shall not be put to death for fathers; every
one shall be put to death for his own sin.” 6 What does this
law mean? Two incidents explain it. Achan, who had put
gold and silver and fine raiment away out of the spoils of
Jericho, was stoned with sons and daughters,7 and later
David avenged Saul’s guilt toward the Gibeonites by hang-
ing five of Saul’s grandsons. Well-known passages in the
book of Kings,8 in Jeremiah,9 and Ezekiel 1° refer to the
same problem and reveal that the deep-rooted, ancient con-
ception was only half dead and presented itself again and
again under the most varying forms. Finally and after
many relapses, especially visible in times of trouble and

woman was in danger of losing her last child. She thus submitted to
David the following request: “If he ]the king[ would hinder this slaughter
of her son by those that wished for it, he would do uel‘ a great favor. because
the kindred would not be restrained from their purpose by anything else
than by the fear of. Him.”

6Deuteronomy XXIV: 16.

7Joshua VII: 24—25. Even oxes, asses, and sheep share the guilt and the
penalty of Achan.

8 II Kings XIV: 6.

9Jeremiah VII: 24—25; XXXI: 29 (where the well known and somewhat
eugenic parable of the fathers who have eaten sour grapes and the sons
whose teeth are set on edge is quoted).

1° Ezekiel XVIII: 2—20. (The son shall not bear the iniquity of the
father, neither shall the father bear the iniquity of the son.) The emphasis
laid on these demands discloses the weakness 01‘ its practical accomplish-
ment. The phrase of. the children's teeth set on edge is even marked as a
“proverb,” showing how deeply it was rooted in the brains of the Jews
many centuries after Moses’ commandments.

4

emergency, the concept of pardon subdued the old and
tenacious ideas of a group responsibility. What once was an
exception and a breach, made by pardon, was now the rule
and no trace was left of the energies of erosion that through
the centuries were at work shaping the new legal topography.

Both forms of pardon, the restriction of the blood-revenge
and the gradual reduction of the group—responsibility, are
closely connected. The slaying of the whole family was in-
dispensable in times when the whole family, especially their
male members, were bound to exercise blood—revenge.11 If
the future blood—revengers were to be spared by an act of
pardon, their revenging activity had to be stopped as well;
only the king had the power to do so.

Pardon under oath—T here was already a kind of pardon
procedure in the old Mosaic law. The old woman who ap—
proached David was not satisfied with a simple verdict of
the king that he would protect her son. He had to confirm
his decision with a. solemn religious oath. Quite the same
precaution of binding oneself against any change of mind
or situation is met in the story of David and Shimei.”
David is victorious, and Shimei comes down to the Jordan,
takes hold of his feet and asks his forgiveness. His com—
panions incite David to kill his enemy. But David rejects
their suggestions for cool political reasons.13 “I therefore
swear,” the king says, “to remit to all offenders their punish-
ments and not to animadvert on any one that has sinned.” 1*
Then he turns to Shimei personally and addresses him:
“Thou shalt not die. And the king sware unto him.” 15

The story of this pardon and this oath has a very instruc-
tive sequel which teaches us how little pardon had developed
into an observed legal institution. On his death—bed, old
David remembers among other enemies 1“ the pardoned

11Instances are especially frequent in Greek literature. Caution and self-
preservation demand that the children of the offender, mainly the boys. be
killed. See Euripides, Trot, v. 7:33, Androm. 515, and Hand. Mainom., 468.
This practice is not cruelty, but mere prevention of future grave dangers.

12 11 Samuel XIX, 16—23, and Josephus, Ant. VII, 11, 2.

13“Do not you,” he tells Abishai, “I pray, raise new troubles and seditious
among us, now the former are over.” Josephus, Ant. VII, 11, 2.

1*Ibid.

15 II SamchXIX, 23.

1° The ancient king‘s reasons for pardoning are very clear: “Abner * ‘ ‘
since Joab has been too hard for me, and more potent than myself. and so
has escaped punishment hitherto.” Josephus, ~int. VII, 15, 1.

5

Shimei. _The counsel he gives to his successor shows that
he never had forgotten and never forgiven. “There is also
Shimei,” he remarks, “the son of Gera, of the tribe of Ben-
j amin who * * * met me at the Jordan and received
assurances that he should then sufi’er nothing. Do you now
seek out for some just occasion, and punish him.” 17 We
see David feels bound by his oath not to have his enemy
killed during his lifetime. Shimei was assured not to be
killed “then.” It is different with David’s successor. He
did not swear and he is not obliged to keep his father’s sol-
emn promises. “Therefore,” David says,18 “hold him not
guiltless: for thou art a wise man and knowest what thou
oughtest to do unto him; but his hoar head bring thou
down to the grave with blood.”

Solomon does not linger to seek out for some just occa-
sion. The story of Shimei’s end is told ahnost identically
in the Bible 19 and in J osephus?O Shimei is ordered to stay
in Jerusalem and not to leave the town. He swears by the
Lord to do so. One day he leaves the town for a short
while and is therefore killed on Solomon’s command. The
king, who was thus violating his father’s oath, reproaches
Shimei for not keeping his oath.21

Pardo-m’ng power of holy objects.-—-Older perhaps than
the word or the oath of the king were other methods of
getting a pardon. Contact with holy objects assured the
protection of the gods, and it was the general belief that
the protecting presence of holy things would be respected
by enemies and vengeful tribal chiefs.

Such objects were effective even to restrain the absolute
power of the head of the family over members of his house-
hold. The book of Genesis 22 does not give any explanation
why Rachel had stolen her father’s images and carried them
away. Josephus is more explicit.23 “Rachel,” says Jose-
phus, “took along with her the images of the gods which,

17 Josephus, Ant. VII, 15, 1.

181 Kings 11, 9.

19 Id., 36—46.

2° Josephus, Ant. VIII, 1, 5 (where Solomon explains very well the real reasons
for his political murder).

21 “Why then hast thou not kept the oath of the Lord?” I Kings II, 43.

’2 Genesis XXXI, 19—35.

23Josephus, Ant. I, 19, 9.

6

according to their laws, they used to worship in their own
country, and ran away tOgether with her sister. * * *
But the reason why Rachel took the“ images of the gods,
although Jacob had taught her to despise such worship,
was this, that in the case they were pursued and taken by
her father, she might have recourse to these images, in
order to obtain his pardon.”

Another place of refuge and pardon was the altar, a heap
of stones originally, where God was believed to dwell.
J oab suspecting, not without reason, that he was in danger
fled to the altar, “and supposed he might procure safety
hereby to himself, because of the King’s piety toward
God.” 24 It has been remarked that the execution of J oab
even at God’s altar was perfectly agreeable to the law of
Moses.25 The whole story nevertheless discloses the doubt
of the murdered as to the legality of the command. J oab
was a political enemy and perhaps guilty of high treason,
but since he was no felonious murderer, the tabernacle of
the Lord ought to have given him protection.

Sanctuamy: The six cities of refuge—In connection with
the institution of the six cities of refuge we learn that the
Mosaic law knew a kind of amnesty for manslaughter.
“Moses also now built those ten cities * * * three of
them (three on one side, three on the other side of the Jordan)
he allotted to those that slew any person involuntarily and
fled to them; and he assigned the same time for their banish-
ment with that of the life of the high-priest under whom the
slaughter and flight happened, after which death of the
high-priest he permitted the slayer to return home.” 26 It is
not known whether this limited amnesty was to be attrib-
uted to the mourning over the death of the old high-priest
or the joyful reception of the new one. The corresponding
passage in the Bible does not give any further reason for
the strange custom.27 These six cities of refuge were a pow-
erful legal weapon for reducing the blood-revenge. The

2‘ Josephus, Ant. VIII, 1, 4.

25“But if a man come presumptuously, to slay him with guile, thou shalt
take him from my altar that he may die.” Ewodus XXI, 14.

2”Josephus, Ant. IV, 7, 4.

27 Joshua XX, 6 (“And he shall dwell in that city until he stand before the
congregation for judgment and until the death of the high priest that shall
be in those days").

7

provisional protection became a final one by the amnesty on
occasion of the high-priest’s death.

The Passover pardon—A last form of pardon is met in the
judgment of Christ. It seems to have been a custom to par-
don a criminal during the Passover Feast.28 It has been said
that at such times Rome took special measures to guard
against insurrections. Probably there were both executions
and pardons on these occasions. “Both aimed at the re-
straint of the multitude.” 29 This explanation seems rather
weak and there must have been other reasons unknown to us
why the great feast included an act of pardon. At all events
the custom was well-established, and the Jewish populace
energetically insisted on its observance.80

Summary—The Mosaic law has thus not arrived at the
development of a clear-cut institution of pardon. The rea-
sons are obvious. The old Jewish tribe-confederacy, and
later what we may call the Jewish State, was ruled by theo-
cratic concepts. God was the supreme leader and he trans-
mitted his commands by the voice of priests and prophets
and by laws written down in the secrecy of the holy moun-
tain Sinai.

To commit a crime against God was not limited at all to
the ofl’enses we today would 'call religious crimes. A great
number of regulations with regard to the family life, to sex-
ual gratification, and to simple hygiene, were considered to
be ordained by God’s will. The transgressor had offended
God and no one but God could pardon him.

In a well known passage of John (XIX, 9—10), Jesus does
not give an answer to Pilate. “Then said Pilate unto him:
‘Speakest thou not unto me? Knowest thou not that I have
power to crucify thee and have power to release thee.’ ” It
is true the Roman legate, Pilate, had power under the Roman
law to pardon for blasphemy. But the Jews did not recog—
nize this, because it would have been an intolerable inter-
ference with the exclusive right of Him who was offended.
That this concept hindered human justice and human

23Luke XXIII, 17.

29James Hastings, Dictionary of the Bible (Edinburgh, 1905) vol. III, p.
691.

30 “For of necessity he must release one unto them at the feast,” Duke
XXIII, 16; “But you have a custom that I should release unto you one
at the Passover,” John XVIII, 39.

73115—39—v0L. III—2

8

progress was apparently realized. No criminal procedure of
antiquity was more elaborate in protecting the rights of the
defendant than the Jewish law of evidence, and to make up
for the poor development of the privilege of pardon, other
legal mechanisms, unknown to modern peoples, were intro-
duced; the principal witness in a capital case was bound to
throw the first stone at the doomed man and so to commit
murder if he had testified falsely.

GREEK LAW

The Adda—The problem of pardon was complicated in
Greek criminal law by the fact that even at the height of the
development of the State of Athens, private suits played a
large role; the plaintiff claimed either a Stun of money or
money’s worth from the defendant, “which moreover he was
himself to receive.” 31 Pardon, therefore, was restricted to
penalties pronounced in public actions. The people was the
sovereign master and it could grant pardons in Athens.
These powers were remarkably restricted by the institution
of the so—called Adeia,32 and we have to stop a moment to
consider this unusual institution by which democracy at-
tempted to protect itself from its own oscillations.

The term Adeia means freedom from fear, seen-rims, se-
curity, personal safety. By obtaining Adeia, a person was
relieved from responsibility for an act. Every criminal
sentence was regarded as definite and irrevocable. To be
able to assail this legal irrevocability it was necessary, so to
say, to seek a previous act of pardon for doing so. To ob-
tain a pardon for a crime one had first to obtain a pardon
for disturbing the order of finally settled afi'airs. It might
help in explaining the exact meaning and structure of this
singular institution when we hint at. a philologic connec—
tion: Adeia is sometimes used in the sense of safe conduct.
By requesting Adeia the petitioner is safely conducted
through a danger zone.

Under this peculiar system no motion of pardon could be
introduced directly and immediately. N o condemned man
was allowed to present a petition for pardon, nor was any

81A. Boeckh, The Public Economy of Athens (London, 1842), p. 350.
32Lipsius, Das Attische Rocht mzd Rechtsverfahren (Leipzig, 1915) vol. III,
p. 963.

9

other individual citizen allowed to do so in his behalf.38
Before such a motion could be carried through, it had to be
supported by at least 6,000 citizens in a secret poll. Who-
ever introduced such a proposal except by way of “Adeia”
had his fortune confiscated.34

Amnestz’es.——There was thus a long and hard way to go 35
before a pardon could be carried through. There had to
be not only one but many persons interested to obtain the
approval of the 6,000 approving citizens. This multitude
of interested persons could usually only be found in the case
of an amnesty to a whole class or group. The reasons for
pardon were usually, as in the famous amnesty of Solon,36
arguments of general policy: to promote the solidarity of
the people during great emergencies as at the time before
the Solonic reforms, during the Persian wars, at the end of
the Peloponnesian War and after the battle of Chaeroneia.

It is strikingly characteristic of the vengeful mind of the
Greeks that there is no special term for the individual par-
don in the Greek language.37 Only few such pardons are
reported in Greek history—the recall of Alcibiades in the
year 408 B. (1,33 the pardon of Demosthenes in 323 B. 0.39
and the recall of the historian Thucydides.

Some legal points are remarkable in the Greek amnes-
ties.40 They seem to have been regarded as an absolute
extinction 41 for all legal purposes of all criminal acts prior
to the amnesty. We know that some of the famous amnesties
excluded certain individuals or classes, and some were con-
ditional. The so-called amnesty of Solon, for example, did

33Id. (Leipzig, 1908) vol. II, p. 388.

34 Id. (Leipzig, 1915) vol. III, p. 963.

35For immunity to be promised to a party to a crime for being a Witness
against his companions, the same procedure had to be followed.

33 See Plutarch, Solon, ch. 19; and George Busolt, Die Gfiechischen Staats
and Rechtsaltertuemer (Muenchen, 1892), p. 133.

37W. J. Woodhouse, in Hastings’ Encyclopedia of Religion and Ethics
(New York, 1913), vol. I, p. 393.

38 Zenophon, Hellenika I, 4, 11.

39 Plutarch, Demosthenes, p. 27.

4r0The old term is not amnesty but “me mnesikakein”—not remember the
evils suffered.

41 This absolute obliteration is very ably expressed by Cicero in Philippum
I, 1 (“in quo templo quantum in me fuit leci fundmentum pacts Athenien-
siumque renovavi vetus exemplum; graecum enim verbum usurpavi quo turn in
sedandis discordiis usa erat civitas illa. atque omnem memoria discordiarum
oblivione sempiterna delendam censui.”)

10

not cover the criminals who had committed murder or were
fugitive because of acts of “tyranny.” ‘2 The amnesty of the
summer of 403 B. C. was a universal“ amnesty; “except the
Thirty, the Ten (their successors), the Eleven (who had car-
ried out their decrees of execution), and the magistrates (ten
in number) of the Pireaus * * * and these,” so runs the
text of the amnesty,43 “should also be included if they should
submit to give an account of their oflicial acts in the usual
way.”

Amnesty agreements were ratified with special precau-
tions. It required an oath of the whole people and, for some
years at least, a similar oath was incorporated with the oath
of ofiice taken by members of the council and the Heliasts.“
The oath reminds us of the Mosaic methods of pardonincr.
We are still more reminded of oriental patterns when we
learn that the children of the Thirty were explicitly in—
cluded in the amnesty of the year 403 B. C.45 which was in
striking contrast with the practice usual in Greek political
strife.‘-‘6 We find in Thucydides and Dio Cassius examples
of a very different practice.“7

The rules of the amnesty were maintained with the same
inviolability. We are told that Archinos 48 had a citizen
executed who wanted to bring an accusation against a man
who was protected by the amnesty. He carried a motion
through that every indicted man who believed himself to be
covered by amnesty could produce a special plea. This plea
had to be decided before the indictment was considered.
This plea was called Paragraphe and secured a powerful pro-
tection so that the amnesty could not easily be pierced. In
some cases fines and confiscated fortunes were donated to
the temple; the money and the objects became the property
of the deity and could not be returned or reclaimed in the
case of an amnesty or a similar Adeia. They had become

 

42 George Busolt, Griechische Staats and Rechtsaltertu-emcr (Muenchen.
1892), p. 133.

48 Aristoteles, Athen. Politeia, ch. 30.

‘4 Woodhouse, loc. cit. supra note 37.

“Demosthenes XL, 32.

4° Woodhouse, loo cit. supra note 37.

‘7 The usual solution is shown in Thucydides III, 70 ft, and in Dio
Cassius XLII, 26, 5.

43 Busolt, Griechische Staats and Rechtsaltertuemer (Muenchen, 1892), p.
186.

11

amnesty-proof. It is the only example of a stabilized and
inviolable status in the legal history of antiquity.

Summary—It has been justly complained that we know
almost nothing about the privilege of pardon in Athenian
jurisprudence.49 The historians are mute except the cases
already mentioned of Alcibiades, Demosthenes and, perhaps,
Thucydides.50 We might add the recall of Aristides after
3 years of a banishment which was meant to last 10 years.51
Perhaps the extreme democracy felt and feared its own in-
constancy and tried to erect legal dikes against its own
weakness. That it probably went too far in that direction
was certainly felt from time to time, but Athens appears to
have preferred detours to avoid changing the law. Thus in
the case of Demosthenes, the people were eager to remit the
fine pronounced against the orator, but the law did not per-
mit this. The people, therefore, decided to pay Demos-
thenes a sum equal to the fine 52 and to revoke the sentence
of exile.

The process of “Adeia” was practically unworkable, be-
cause 6,000 citizens had to sign the “Adeia-petition” and
had to support it. It seems probable, although not quite
certain, that attendance at the judicial sessions of the
Heliaea was limited by an age limitation, perhaps 30 years,
in later times. It seems to have been extremely difficult to
assemble 6,000 popular judges, determined to ask for the
Adeia. No people, therefore, presents a weaker develop—
ment of the institution of pardon than the city-state of
Athens. We may not be wrong in attributing this lack to
Greek vindictiveness, so ably described by one of its most
prominent victims. Thucydides.

ROMAN LAW

Republican Roman law knew two kinds of pardon; the
one was granted by the court, the other by the legislature.
In Roman law every court was entitled to remit a penalty,
either at once or after some time had been served.

45* Daremberg-Saglio, Dictionnairc des Antiquites (Paris, 1877) vol. I. p. 233.
5° Following Pausanias, vol. I, § 9, p. 23.

51 Plutarch, Aristides, p. 8.

59P1utarch, Demosthenes, p. 27.

14

gods. By ordeal, the gods were asked whether they wanted
the victim or not. If the god refused the gift, the criminal
was automatically pardoned. Other‘ very ancient punish-
ments, such as exposure in a leaky ship or in a ship without
a rudder, were similar inquiries to the deity, whether it
would accept the victim or not. The man was believed to
be innocent by verdict of the deity when he was saved by
mere chance.

The F rancom'am kingdom.——In the FrancOnian period of
German history, the many tribes and peoples of Germany
were joined in one large nation. The Franconian kings
supplanted the assembly of the people as bearer of the
sovereignty. .

In the older primitive democracy, everybody knew that
the safety of every single member lay in the tribe and the
maintenance of its defensive strength. This natural sol-
idarity needed no confirmation by oath. Fidelity to the
tribe and its leaders in peace and in war was an obvious
rule of self—preservation and needed no formal enforce-
ment. With the great united nation of the Franconian
kings things changed. The king was far away, and with
the unification many national interests arose which could
not be understood or appreciated by the simple mind.
Therefore, the oath of allegiance was instituted and an
appropriate ideology was introduced. The subject prom-
ised on his oath to keep the king’s rules. If he committed
a crime he was held to have broken the intimate and oath-
confirmed tie of fidelity between himself and his ruler.

It can be assumed that this newly established personal
bond tended both to increase and to decrease the number
of pardons granted by the king. They decreased because
the crime was henceforth not an infringement of written
regulations but a personal offense, a personal rebellion
against the will of the king. But at the same time a human
being like the king could more easily be appeased than the
wording of a law could be disregarded. In any case, the
idea of a perfidy, of a “felony,” entering the relation of
king and subjects contributed largely to the elaboration of
the principle that the power of pardon was vested in the
king and no one else. The king had the authority to par-
don every possible crime, because more than any objective

15

social interest, his right to be obeyed and respected was
violated. Whoever was personally offended was entitled
to forget and to pardon. There were no crimes which are
regarded as unpardonable as in later times.

The principalities and free cities.——A few centuries later i
the German Empire was split up into large and small prin-
cipalities, into territories of ecclesiastical masters and free
cities. The power of pardon descended to these sovereigns
who were also possessors of the criminal jurisdiction. A
fragment of this pardoning authority was transferred to
the courts and helped to bring about one of the most im-
portant changes in the criminal law of the Middle Ages.
In the so—called “judging by mercy,” the institution of the
mitigating circumstances tended to spread. This mode of
mitigating the extremely brutal criminal penalties was
especially developed in the great medieval commercial
towns. When a regulation declared the city council would
pass sentence without any mercy (Richten ohne alle
Gnade), it was a symptom of unruly times and of a state
of emergency.

Another emanation of the right of pardon is met in cases
of manslaughter. Until the beginning of modern times
blood-revenge was in vogue in some parts of Germany,
especially in Switzerland. The blood-revenge was slowly
displaced by acts of expiation and compensation. his
expiation had to precede the pardon by the prince, and it
is not wrong to call this a private act of pardon. The
ritual of such an expiation included requiring the homicide
to kneel down at the grave of the slain man and to ask the
family for pardon. The next of kin, who according to the
ancient law had to carry on the blood-revenge, then asked
him to get up and gave him the kiss of peace. This private
right of pardon, exercised in concurrence with the public
authority, slowly vanished. It disappeared the more as
financial interests were involved.

Peculiar forms of pardon—The German law of pardon
is not exhausted with the statement that the prince held
the power of pardon until the most recent times and as
long as princes ruled Germany. Germany has developed
the most astounding varieties of pardon besides this main
source of mercy.

16

We can refer to them here only briefly. It was for many
centuries a well-established legal custom in Germany to par—
don the ofi'ender if the execution failed. As hanging was
the main death penalty, the most frequent case was that of
the rope breaking. In the very old city of Basle, every
woman doomed to be drowned was set free if she reached a
certain place downstream alive. It cannot be doubted that
these practices show the survival of a concept traceable to
the old ordeal. God was believed to have given his verdict
and to have demonstrated the person’s innocence. A similar
belief underlay the practice of torture; God, it was believed,
would let no innocent man be induced by bodily pain to
admit a crime. \Vhoever endured the torture must be inno-
cent and had shown his innocence with God’s help.

Two great German codifications of the thirteenth century,
the Sachsenspiegel 62 and the Schwabenspiegel 63 mention a
rather strange right of pardon. In all mass—executions the
executioner was entitled to pardon every tenth man.“ The
origin of this right has never been investigated, but it must
go far back into darkest antiquity.

The medieval town or the petty prince did not always
have a professional hangman and it was sometimes expen-
sive to send for one. In many executions one of the doomed
men was pardoned with the condition that he had to execute
his companions. The custom of granting immunity for
turning king’s (state’s) evidence has a certain relation to
this old practice, although the mode of execution is here an
indirect one.

Cheerful events like the birth of an heir to the throne or
the beginning of a reign were occasions for pardons or an
amnesty. These pardons had to be proclaimed in special
forms. In the Middle Ages there were automatic forms of
pardon. Banished people were allowed to return to their
town or country if they clung to the vehicle of the entering
prince. Grimm has collected many interesting instances of

‘32 Sachsenspiegel II, p. 56, par. 3.

63Sch/wt:bmzspicge1-, ch. 126 (Edition, Lassberg).

04 There is a story that in the middle of the fifteenth century an execu-
tioner in Switzerland wanted to exercise this power but was prevented
by the presiding judge who snapped angrily: “Shut up. In our country
this law does not hold good.” Frauenstaedt, Das Begandigtmgsrecht im Mit-
telalter, Zietschr'ift f'uer die gesamttc Strafrechtswissenschaft, v01. XII,
p. 894.

17

this custom 6“ which have been explicitly mentioned in the
Sachsenspiegel.66

Whenever the newly elected bishop made his entrance
into the very old town of Speier on the Rhine, all citizens
who had been exiled were allowed to return to the town if
they held fast to his bridle, saddle, or some part of his
horse.67 In the year 1497, people who had been exiled
for 10, 20, or more years followed unimpeded the entering
Duke of Pomerania into the great commercial town of
N urenberg. In the south of Germany, the easiest way to
obtain the required hold on the royal horse was to seize the
stirrup.68

The King’s tou-oh—Pardom‘ng power of women—The
presence of the anciently holy person of the King granted
protection, even if the King did not actively approve or
interfere. Dieterich von Bern guided Chrimhild and Etzel
safely out of the circle of their enemies simply by laying
his arm on them.69 In the German old legal language,
Arm zmd hand means protection.70

A special power and qualification for pardoning was
attributed by German law and practice to women. Legends
tell of persecuted men who were saved by the presence of
queens and princesses; it was the expression of pardon when
they took the criminal under their mantle.71 We know that
a. definite right of pardon was granted during the Middle
Ages to certain women of high position. The abbesses of the
convents of Lindau and Zuerich had from very ancient
times the right to grant pardon by cutting the rope by
which a doomed man was led to the place of execution.
Although the cust in had been officially abolished in 1641,
the wife of the high bailiff of Thurgau still exercised this
right of pardon in 1676.72

Pardoni'ng power of virgins—Another form of pardon—
ing interference with the death penalty was the demand of

“Jacob Grimm, Deutsche Rechtsaltertuemer (Leipzig, 1899) vol. I, p. 368;
vol. II, pp. 341, 535, 540.

66Sachsen.sepiegel II, p. 60 (“To the entering King all prisoners are free”).

‘37 Grimm, op. cit. supra note 65, vol. I, p. 369.

6811, vol. II, p. 341.

69Niel)elzmgenlied, verse 1932.

7° Grimm, vol. II, p. 540.

71 Id., p. 541.

72 Frauenstaedt, op. cit. supra note 64, at 897.

18

a pure virgin to marry the criminal. This custom seems
to have been known throughout all Germany, although no-
body knows where and when it originated. Although legal
doctrine opposed the custom, it persisted till the end of the
seventeenth century. In Switzerland, we meet cases even
during the eighteenth century with only a slight change;
no complete pardon resulted from the marriage proposal
but only remission of the death penalty and banishment of
both marriage partners. It seems to have been important
that the girl was of good repute and pure (cine feine and
unbescholtene Jungfrau)” In a few cases the courts of
large and self—conscious towns like Cologne did not yield to
the custom.” But the generally accepted idea is expressed
in a sentence of the famous scholar Benedict Carpzow, who
says that in case a girl wants to marry a doomed man, the
execution must be postponed and the pardon of the prince
requested.75 A clever amalgamation of the old custom and
the right of pardon exercised by the prince is thus effected.
The reason for this custom may be seen in the “holiness”
of a pure virgin. The pure virgin was thought to be the
most valuable sacrifice. A pure virgin could not be exe-
cuted in the old Roman law; she had to be raped by the
executioner first and thus profaned. The blood of a virgin
was supposed to have magic power; it was considered the
only medicine for leprosy.76 It is probable, therefore, that
the pardoning right of the virgin originated from this
“holiness,” the same holiness which granted the vestal vir-
gin the right of pardon in ancient Rome.
Intercession—The most frequent form of pardon in
medieval Germany was probably the so-called “interces-

“Frauenstaedt narrates a Saxon case of the year 1600. Before the execu-
tion, a girl appeared and demanded the doomed man, “Zu Tisch u-nd Bett ale
Encwirth.” Her wish was granted. They were married at once and had to
leave the town of Leipzig within 24 hours. More such cases are to be found:
Malblanc, Geschichte der pez‘nlichen Halsger-ichtsordn1mg, p. 30; Oscnbrueg-
gen, Ala-manisches Strafrecht, p. 192.

74 In one case in the year 1566, two girls demanded the right to marry
the perpetratOr and the court consented to pardon him when he should
marry one of them. The man refused to marry and was executed. Frauen-
staedt, op. cit. supra note 64, at 900.

75 Carpzow, Practica Rcrum O’riminalium, vol. II, quaest‘io 88.

70 See the old medieval poem, Der A'rme Heinrich, by Hartmann, vol. II
p. 2.

9

19

sion,” 77 a term which is to be met in the prayer in behalf
of a living or a dead person. The intercession could take
place before or after the trial. In many cases it aimed at
preventing an investigation being carried through, and it
possessed all the qualities of the modern “abolition.” In
the intercession the whole people resumed its former pow-
ers which had been lost and ceded to the kings, princes,
and the courts. It could not be the Whole community, to
be sure, but an association of the parents, the friends, pro-
fessional associates,78 and other interested persons. Frauen-
staedt ”’9 has given a very able description of such an inter-
cession: The whole assembly approached the court in a
solemn procession, the intercessor at the head. As soon as
the prosecutor had made his motion, the intercessor stated
the reasons in favor of pardon. N0 actual or legal argu-
ments were produced, but by pointing to the mercy of God
and the great number of respectable and worthy people‘
who had met to ask pardon the intercessor tried to create
a merciful and sympathetic mood among the members of
the court. Sometimes the members of the clergy succeeded
in obtaining a pardon for the perpetrator. In other cases
the fact was emphasized that many women “with blessed
womb” were joining the intercession.80 As the Middle
Ages did not know imprisonment in our sense, the commu-
tation of the death penalty usually meant release, and it is
easily to be understood that the great and progressive towns
tried to stop or restrict the dangerous custom.

We meet therefore not a few regulations forbidding any
citizen to intercede for a doomed criminal or an arrested
man. A citizen of the town of Nurenberg was threatened
with a fine of 20 gulden and even harsher penalties if he
dared to ask “princes, counts, lords, prelates, and other per-
sons of high rank” to intercede in behalf of a Nurenberg
criminal.81 The intercession was forbidden as well in the

7"“Fuerbitte,” in German, was the most powerful corrective of the brutal
criminal jurisdiction of those times.

73 The guilds nearly always interceded vigorously for their members.

“Frauenstaedt, op. cit. supra note 64, at 902.

8°It was a general belief that refusing a pregnant woman a demand would
hurt and endanger her.

31Regulation of the year 1482, town of Nuremberg. There are ancient
Swiss laws prescribing that the judge must inquire all around whether

20

rich merchant town of Ulm; this prohibition did not apply
to preaching monks, barefooted friars, lepers, and found-

lings.

Other forma—There remain a' few other forms of the
right and the power of granting pardons. Grimm 32 men-
tions an ancient author who relates that in Switzerland
a wife who had borne seven sons, one by one, was allowed
to cut the rope of the doomed man and to pardon him. The
origin of this custom may perhaps be traced back to the old
superstition, quoted by Grimm in another work,83 that if a
woman had seven sons in succession the seventh could heal
all manner of hurt. He could therefore “heal” the crime as
well.

A last way of obtaining pardon is shown by some popular
German songs cited by Grimm.“ One instance only, that of
the wife of the Duke Geoffrey of Mercia, seems to be his-
torical.85 A girl or a woman had to run naked through the
town, or nine times naked around the market-place, or three
times naked around the prison where the criminal awaited
his execution. The proceedings are obscure and remind us of
some magic practices in which nakedness and the numbers
9 and 3 play a role.

Eighteenth century absclutism.—The times of absolutism,
the seventeenth and the eighteenth centuries, saw the right
of pardon returning into the hands of the princes. Some
enactments of the eighteenth century emphasize the right
of the sovereign and by that very assertion 86 prove that the
matter was not yet quite settled; some courts still ignored the
claims of the princes; they did this the more as the right
of pardon came to be a rich source of income.

Smamary—A retrospective account of the German de-
velopment through the centuries demonstrates strange fluc-

 

anybody “secular or clerical, old or young, man or wife, wanted to ask for
pardon or a mitigation of the sentence.” See Frauenstaedt, p. 905, Criminal
Procedure of Davis of the year 16:30.

82 Grimm, Deutsche Rechtsaltertuemer (Leipzig, 1899), vol. II, p. 526.

83Grimm, Teutonic Mythology (London, 1883), vol. III, p. 1152.

8‘ Grimm, Deutsche Rechtsaltertuemcr (Leipzig, 1899), vol. II, p. 526.

85Ibid.

80 The Prussian Allegemeine Landrecht Teil, II, Tire]. 13, paragraph 9, of
the second half of the eighteenth century runs as follows: “The right to
forgive by grave reasons crimes, to quash criminal investigations and to
pardon criminals totally or partly, belongs exclusively to the head of the
state. ‘ ‘ "’

21

tuations. Jurisdiction and pardon were originally preroga-
tives of the whole tribe or nation. With the unification of
Germany in the ninth century, the kings take over the dis-
pensing of justice and mercy.

When the gigantic agglomeration of the German empire
fell into pieces, the privilege of pardon descended to the
princes, ruling archbishops, and free cities. Then a new
turn set in. The absolute kings of the seventeenth and
eighteenth centuries again took over the economically and
politically valuable pardoning authority from the minor
princes and their courts. They were eager to exploit it
themselves.

Finally, abuses by the chanceries and the counselors of
the absolute kings brought about a reaction, in the form of
philosophical opposition to all pardons. The remarkable
polemic of Kant 8" against any kind of pardon (crimes of
Z686 majeste excepted) is the best proof of how grave the
misuses of pardon must have been at this time. To Kant,
crime is a wrong, not against the King as the representa-
tive of law, but against the individual primarily injured
thereby. The King cannot pardon except for crimes which
are directed against him personally (lese majeste), other-
wise he interferes with the legitimate and natural rights of
his subjects.

,The German development in the law of pardon has
always followed closely the march of political power, but
it is enriched and enlarged by an unusually great number
of customary forms of pardon. They supply a certain
democratic spirit, some strong human traits to the rigid
official forms.

In this ceaseless oscillation from one extreme to another,
from the most severe concentration of the power in one
man to the broadest scattering of it among a huge number
of judges and courts, Germany today has arrived again at
the state which prevailed during the time of the absolute
kings. The so-called “Leader” claims the right to grant
both single pardons and whole amnesties, both before and
after conviction.

”Metaphysische Anfangsgruende, p. 206.

22
FRENCH LAW

Early development—The first beginnings of law in the
parts of Europe we now call France coincide, for the first
thousand years, with the German development described
above. The rush of the migration of nations was more con-
spicuous in France because a few of these nations settled
for a while on French soil; codes of laws were created in
close contact with Roman law and Roman culture.88 During
its ascendency the French kingdom had to fight two lucrative
forms of remitting penalties. The first was the right of
sanctuary, upheld by the clergy. The regulations of Louis
XII (1506) and of Francis I (1539) restricted the powers
of the clergy in this respect. The second obstacle was the.
feudal system of the early Middle Ages. Each feudal lord
possessed the right of jurisdiction and the right of pardon.
Step by step the kingship wrested from the feudal lords
the right of pardon.89 '

But some traces of the old status were left and are visible
in French legal history. The “Connetable” of France, the
marshals of France, the governors of the provinces kept this
right for a longer period.90 The legates of the Pope
claimed the right of granting pardon for heresy; 91 the
bishops of Orleans in particular used to give letters of par-
dons to all people who went to stay in the prisons of Orleans
during their solemn entrance. The number of these prison-
ers increased considerably in the course of time; there were
900 in 1707 and more than 1,200 pardoned criminals in
1733. By a regulation in the year 1753, these powers were
restricted.92

 

88The greatest part of these leges barbarorum, contains no trace of a
law of pardon. Only the laws of the West Goths mention that the King
may grant pardon f0r reasons which do not affect the well-being of the
nation with the consent of the bishOps, priests, and the noblemen of the
palace; the cooperation of the people had been reduced to this small group
of advisers.

89Regulations of Juan II (1359); Charles VII (1449); Louis XI (1479);
and Louis XII. It was from then on considered to belong to the so-called
“regalia.”

90Encyclopedie ou Dictiomwire Raisonne dcs Sciences, (263 Arts et des
Matters (Paris, 1757), vol. VII, 803 E.

01Ib-icl.

”With a very interesting preamble, demonstrating the origin of the ecclesi-
astical demand and stating the view of the King.

23

There were some atypical forms of pardon. The King
sometimes granted pardons when his first son was born or
when he or the Queen entered a city for the first time.
The city of Vendome had the privilege of dismissing each
year one prisoner on the Friday preceding Palm Sunday.
The chapter of the Church of Notre Dame de Rouen ob-
tained the same right for the Ascension Day. But finally
the right of pardon was firmly in the hands of the King.
and whatever exceptions existed were deemed to exist by’
virtue of a grant from him. Having obtained the exclu-
sive and uncontested privilege of pardon, the royalty could
not keep out the detrimental influences that assailed abso-
lute rulers in other nations. Bribery and other abuses
crept in, and this increased as financial difficulties increased
in the second half of the eighteenth century and even earlier,
during the reign of Louis XIV.

Revolutionary opposition—These inconveniences are the
reason why the first Revolutionary Parliament was out-
spokenly hostile to the institution.93 Theoretical arguments
were strengthening this negative attitude. It was alleged
that these powers of the executive did not fit into the system
of neatly separating executive, legislative, and judiciary.
With all the glowing optimism of the first revolutionary
period it was believed that the newly introduced jury, repre-
senting the voice of the people, could not make mistakes and
that, therefore, pardon was an unnecessary legal expedient.

So the right of pardon was abolished in the criminal code
of the year III (1791).94 This extraordinary step only re-
flected [the views of the greatest philosophers and lawyers
of the end of the century.95 They all combated pardon or
doubted it at least. They believed that good laws would
not need corrective agencies.98

93 R. Garraud, Traite Theorique et Pratique du Droit Penal Franco/is (Paris,
1914), p. 635.

94The memorable art. 7, title VII, part I, of the criminal code of 1791
runs: “L’usage de tous les actes tendcmt a empecher on a suspendre l’ewercise
de la justice criminelle, l’u-sage des lettres de grace, de remission, d’aboh‘tion,
de pardon et de commutatiOn des peines sont abolis pour toutes 168 crimes
poursuivis par la voie des jures.”

95Beccaria, Filangieri, Kant, Feuerbach, etc.

9°“Si la peine et necessa'ire, on me doit pas la remettre; st elle n’est pas
necessaire, on ne doit pas la prononcer.” Bentham, Principes du Droit Penal,

73115—39—VOL. III 3

 

24

Reestablz'shmcnt of pardon—Seven years later the privi-
lege of pardon was reestablished. The first consul was en-
titled to grant pardon after having‘obtained the opinion of
the supreme judge, two secretaries of state, two senators, two
0075862726729 D’Etat, and two judges of the supreme court.
Since the year 1798 the privilege of pardon has not been
contested. The power is vested in the executive. Amnes-
ties cannot be granted except by the concurrence of both
legislative houses.

Modem French law—In modern French law the privilege
of pardon has not been brought into any legal system; even
the term “pardon” is extremely rare, and appears in but two
passages of the criminal law—in article 48 of the penal code
and in article 619 of the code d’imtruction crimincllc. Two
main rules are uncontested: There is no possibility of inter-
vening by pardon before sentence has been pronounced and
before the sentence has become irrevocable. Therefore the
case, frequent in French criminal law, of a condemnation
per contumaciam (in absence of the accused) cannot be
affected by measures of pardon, because such a condemna-
tion is not final.

There are three forms of pardon: Pam rcmz'sc, the abso-
lute pardon; par reduction whereby the penalty is partially
reduced; and par commutation, which means the substi-
tution of a minor penalty of a different kind for a major
one. It is the rule that a penalty cannot be changed into a
punishment unknown to the existing legal system, even if
the punishment should be considered generally as a lighter
one, but the French practice shows cases where this rule has
not been strictly upheld, for example, where the death pen-
alty was commuted to banishment for life, a penalty not
known to French law.

The pardoning power of the President of the Republic is
unrestricted 97 as seen by article 3, § 2 of the constitution of
February 25, 1875, but there is a special bureau in the
French Department of Justice which examines all applica-
tions for pardon. The pardon document has to be counter-
signed by the secretary of justice (attorney general) and

 

part III, e. 10, quoted by Garraud in Traitc Theorique du Droit Penal Fran—
cais (Paris, 1914), p. 635.

'7 Garraud, Drott Penal Francois (Paris, 1914), p. 635.

25

becomes part of his ministerial responsibility. In case of
capital punishment the secretary of justice asks the advice
of a council of directors, established in his department for
this purpose.

By the law of August 14, 1885, the institution of the lib-
eration has been created; the penalty of confinement can
thereby be reduced by an act of conditional pardon. The
term is significant; the prisoner is set free, but he does ob-
tain a free pardon in the old and wide sense.98

ENGLISH LAW

Celtic law—We know almost nothing about criminal law
and legal organization in the pre-Celtic times or among the
Celtic tribes which overran the British island during the
fifth and the fourth century before Christ. Their tribal life
was perhaps similar to that of many tribes of modern India.
They join in times of emergency, during wars and migra-
tions; they elect and obey so-called kings, and give them
power to execute their commands. But as soon as the danger
is gone, the old independence is reestablished.

Punishment was by the clan; and it was the clan which
could refrain from using its power and right to punis .99

There was a marked difference in organization of criminal
practice from that in Teutonic territories. “The Germans,”
narrates Caesar,1 “differ considerably from the Gauls in
their customs, having no Druids to superintend their re-
ligious worship, and paying little regard to sacrifices.” In
another passage2 Caesar describes this powerful caste of

98 After the insurrection of the Commune in 1871, a commission Was
created. The members of: this council were elected by the Assemblee Na-
tionalc. Pardons of offenses committed during the Commune could be
granted but by cooperation of President of the Republic and that com-
mission.

99“Justice was the justice of the clan, which punished and protected its
members, exacting on their behalf from other clans either vengeance or pay-
ment in reparation for injuries done.” George Macauley Trevelyan, History
of England (London, 1926), p. 11.

1Caesar, De Bella Gallico, VI, 21.

2"Nam fere de omnibus controversiis publicis privatisque constituunt, et 31'
quod wt admissum facinus, si caedes facta, si de hereditate, si de finibus
controversia est, idem decernunt, praemia poenasque constituunt ‘ ‘ ‘.”
Caesar, De Bella Gallico, VI, 13. A high priest crowned the hierarchic struc-
ture of the powerful caste. “His autem omnibus druidibus praeest unus,
qui summam inter eos habet auctoritatem." Ibid.

26

priests. The Druids not only performed all religious duties
and controlled the education of the youth, but also solidly
held their ground in administering civil and criminal
justice.

We do not know whether these priests had the privilege
of pardon in the modern sense. They certainly directed the
ordeals, and probably had the same power to influence their
outcome and interpret their meaning that the Christian
priests had during the Middle Ages. In the Teutonic tribes,
mentioned by Tacitus, the priest had no power of j urisdic-
tion. To him was left the mere execution of the punish-
ment,3 and the history of the medieval hangman tells us
that by a certain differentiation in technique—in whipping,
for example, or by ducking—he could either kill or practi-
cally grant a pardon.

The strongest mode of coercion exercised by these priest-
judges was the interdict, placed on recalcitrant transgres-
sors.4 This was a terrible weapon, but it had the advantage
of being easily repealed. This complete cutting off of the
sinner, his isolation from all protective social ties, was an
abnormal condition, a negative state, and thus easily re-
paired by a simple word of command.

Pardon could thus be granted either by the priests or,
during the political concentration of wartimes, by the mili-
tary leader.5

Anglo-Saxon law—The Anglo-Saxon invaders needed
some forms of political and judicial organization to divide
and weaken the original inhabitants. Thus a territorial
division slowly developed,“ and this purely geographical
division was followed by institutions embracing the military

3“Ceterum neque an-imadvertere, neque vincire, ne verberare quidem, nisi
sacerdotibus permissu-m; non quasi in poenam nec duo-is jussu, vel velut deo
imperante.” Tacitus, Germanic», 0. VII.

4‘08? gm: autem pr-ivatus aut populus corum decreto non stctit, sacri-
ficiis interdiczmt. Haec poena apud eos est ,gra'vissima. Quibus its cst im
terdictum hi mime-r0 impiorum ac sceleratorum habe-ntur, his onmes decedunt,
aditmn scrmo-nemque fugiunt, nc quis ea; contagione incommodi accipiat, neque
his pctentibus ius redditur ncqzte honos uZI'u-s communicatur.” Caesar, Dc Bella
Gallico, VI, 13.

5“0um bellum civitas aut illatum defend-it aut infert, iiiag-ist‘ratlus, q-ui e-i
hello praesint, ut vitae nec-isque habcant potestatem, deli guntm‘. In pace
mullus est communis magistratus, sed principes regionum atq-ue pago’rum inter
suos ius dicunt controversiasque minuu-nt.” Caesar, De Bella Gallvico, VI, 23.

'3 Stepshen, A History of the Criminal Law of England (London, 1883), vol.
I, p. 6 .

27

and political-as well as the financial and judicial needs of
the king.

When we look at the failure of the Anglo-Saxon mon-
archy to build a strong central government, we see that the
old tribal influences got the upper hand.7 We are told that
at the time of the Norman conquest England was in legal
development the most backward country of Europe. It was
not only “still in the twilight of the folk-laws,” 8 but in the
twilight of half-tribal jurisdictions like the County Court,
the Hundred Court, and the Tithing.

The Anglo-Saxon Dooms were for the most part not
royal decrees, but declarations of folk-law by the clan chief,
acting as mouthpiece of the clan. The real distribution of
power is shown by the fact that the Witan—the assembly of
the leading men of the nation, bishops, or lords—both
elected and deposed the king. The privilege of pardon was
a question of power, not yet a problem of law. It was
mainly vested in the clan chiefs. But older customs were
still alive in Anglo-Saxon times. “There is abundant evi-
dence in the Anglo-Saxon laws that the feud, the fresh pur-
suit, and the distress (11am) were perfectly familiar to the
compilers of the codes.” 9 In such cases of vengeance par-
don could only be granted by the aggrieved party. We
shall meet survivals of this right during the Middle Ages
and even in modern times.

The Norman conquest—The feudal period of English
history did not start with the Norman conquest, but was
carried on and intensified by the invasion of feudal lords.
William wanted two things: “He meant to be a rich King
instead of a poor duke”; 10 but at the same time he wanted a
political and judicial system which guaranteed him, as far
as possible, against rebellion, and the loss of all this wealth.
“Every man, noble and simple alike, should hold his land as
a pledge of good behavior.” 11 This meant the subjection of
the peasantry to seigniorial justice and the subjection of
the lords to the King. By graduating the political, mili-

7 W. S. Holdsworth, A History of English Law (Boston, 1922), vol. I, p. 16.

'Jenks. The Development of Teutonic Law, in Selected Essays in Anglo-
American Legal History, vol. I, pp. 34, 42.

9Edward Jenks, A Short History of English Law (Boston, 1922), p. 8.

1° Id., at 27.

1“Ibid.

28

tary, financial, and judicial responsibility the King made
the church and the lords share hisvconquest by supporting
the conquest. Every man must have 3. lord, to answer in
court for his misdoings. Since the old tribal ties had
broken down, since a man’s relations were no longer answer—
able for him, his lord must answer for him instead.12 Pri-
vate justice 13 was encroaching on public justice, and the
privilege of pardon followed the right to condemn and
punish. The privilege was the more exercised the more it
was used as a means of financial exploitation.

But alongside the jurisdiction of the feudal courts (and
we might add the slowly developing borough courts, de-
pendent upon royal grant or confirmation), the King’s ju-
dicial interest and power covered large and increasing
areas .of the country. He was first of all the military leader
and the supreme military judge. There was further a sort
of royal court, brought into existence by the conqueror,
the Forest Court. There was finally the Curia Regia, a
central court, composed of the most important men in the
nation. “The Norman Kings always regarded themselves
as the successors of Edward the Confessor. They were law-
ful Kings of the English; and as such they were entitled
to exercise those powers of government which men believed
were put into their hand for the preservation of peace, the
protection of the weak, and the maintenance of justice.
Because they were Kings they had powers which transcended
the powers of a mere feudal suzerain.” 14

The power of pardon was one of the King’s prerogatives,
but undoubtedly feudal courts and borough courts were con-
current forces for a long time. After the reign of Henry II
the Curia Regis no longer confined its attention to great
men and great causes.15 It began to be a tribunal where
all classes of cases were tried. It was a tribunal staffed by
the ablest lawyers of the day.16 And when the fortieth
clause of the Magna Charta provides: “N ulli vendemus,
nulli negabimus, aut difi'eremus rectum aut justician, the

12Trevelyan, History of England, p. 91.

13 And justice meant in these times, fees, fines—in short, a source of
revenue.

1* W. S. Holdsworth, A History of English Law (Boston, 1922), vol. I, p. 33.

15 Id. at 40.

10Id. at 49.

29

‘rectum’ includes the execution of law and justice in ‘mercy’
explicitly mentioned in the coronation oath of the English
kings.” 17

Rise of the power of Parliament—The fourteenth cen-
tury witnessed a long series of parliamentary attempts to
curtail the royal power. From time to time acts were passed
restricting the King’s power to pardon. However, under
the strong hand of the Tudors, this movement was stopped,
which meant a perpetuation of the old and obsolete feudal
division. The act of 27 Henry VIII, chapter 24, provided
that no one had the power to pardon or remit any treason
or felonies, but that the whole and sole power rested in the
crown, thus depriving ancient fiefs, county palatines, the
commons, and the church of a great part of the powers they
had exercised under old grants.

But new political forces were rising and snatched at the
important right of pardon. Slowly the Parliament emerged
from the secondary role of being a mere tool of the King
or the church into an independent power. By themiddle of
the seventeenth century it was supreme. It became the
dominant force in the English constitution.18 One of its
victories was the recognition of its power to grant pardons
by legislative act.19

Abuses of the pardom'ng power.—In legal theory the king
is “the fountain of justice,” 2° and the exercise of his prerog-
ative of pardon appears in the commentaries as dictated
solely by grave reasons of the common weal. It is true, a
power with no or few limits laid in the hands of a personal-

1" Stephen, Commentaries on the Laws of England (London, 1903), vol.
II, p. 431.

18 “The power and jurisdiction of Parliament, says Sir Edward Coke, is so
transcendent and absolute, that it cannot be confined, either for causes or
persons, within any bounds. It has sovereign and uncontrollable authority
in the making, conforming, enlarging, restraining, abrogating, repealing, reviv-
ing, and expounding of laws, concerning matters of all possible denominations,
ecclesiastical or temporal, civil, military, maritime, or criminal.” Stephen,
New Commentaries on the Laws of England (London, 1903), vol. II, p. 370.

19 “A pardon may also be granted by Act of Parliament; and this kind
of pardon is more beneficial than a pardon by the King's charter. For if
the Act he a public Act, a man is not bound to plead it but the court must
ex oflicio take notice of it.” Stephen, New Commentaries on the Laws of
England (London, 1903), vol. IV, p. 422.

”Stephen, New Commentaries on the Laws of England, vol. II, p. 504.
“A third attribute of the royal dignity is perfection, it being an ancient
fundamental maxim of our law, that the King can do no wrong.” Id.- vol. II,
p. 486.

30

ity of supreme political power could not escape improper
use. A glance at the facts of medieval legal life and crim-
inal practice in England exceeds by far the most pessimistic
expectations.

Let us consider first the general practice of pardon.
“Though pardons were regarded with suspicion 21 when pro—
duced in answer to a criminal charge,” writes Pike,22 “there
is no doubt that they were granted with the utmost facility
in an age when peace was never of long duration. As soon
as war was declared it was the custom to issue a proclama-
tion in which a general pardon of all homicides and felonies
was granted to everyone who would serve for a year at his
own cost.”

There was another way during wartimes to obtain par-
don. lVith the outbreak of hostilities the King needed the
support of the lords and bishops; he was eager to do them
a favor. The criminal therefore “even when he remained
in England in pursuit of his ordinary occupations had only
to secure the good offices of some one who had influence“
with the king.23 An entry would then appear upon the rolls
to the effect that, at the special request of some nobleman
named, who testified to the innocence of the accused, a
pardon had been granted to him.”

Purchasing pardon—There was apparently no disgrace
in the offer of a sum of money to the King or to other inter-
ested persons. We select of many instances known two
cases: “In 1514, Richard Hunn, a citizen, who had disputed
the jurisdiction of the obnoxious Ecclesiastical Court, was
thrown into the Lollards Tower, the Bishop’s prison, at the
southwest corner of the Cathedral. A lVycliife Bible had
been found in his house; he was adjudged a heretic, and
one night this obstinate man was found hung in his cell.
The clergy called it suicide, but the coroner brought in a
verdict of willful murder against the Bishop’s chancellor,
the sumner and the bell-ringer of the Cathedral. The King

21 One of the reasons of this well founded suspicion was the imperfect
adoption of surnames in medieval England, rendering a pardon granted to
one person useful to many. See such cases in Pike, History ofi Crime in.
England (London, 1873) vol. I, pp. 293, 294.

221d, vol. I, p. 294.

23 When the King mobilized, he needed help, and each of these badly needed
n0b1es temporarily had influence with him.

31

however, pardoned them all on their paying £1,500 to
Hunn’s family.” 24

During the reign of Henry II (1154—89) a band assaulted
the house of a rich London merchant. The historians re-
port with a certain astonishment that in this case a rich
man failed to purchase his pardon: “Among them was one
John Senex, or John the Elder, who was known as one of
the richest and most influential men in London. He was
tried by the water-ordeal, but failed to clear himself. He
then offered 500 marks to the King for pardon, which was
refused, either because the sum was too small, or because
the scandal was too great; and he was hanged like thieves
of a lower grade.” 25

The London Chronicles during the reign of Richard II
(1377—99) mention many persons who “hadde made grete
ffynes and Raunceons, and hadde purchased hem of the
kyng his patent lett-res off pardon.” 2“ Although military
and financial needs of the king played a considerable role
in having a pardon granted, other influences cooperated.
We hear of “great solicitations” made in the high-treason
case of the Earl of Derwentwater, Lord Kenmure, Earl of
Winton, and others in 1716.27 These “solicitations” were
not only addressed to the King but reached the two houses-
of Parliament.28 Richard Turpin, the famous criminal,
wrote after conviction to his father, imploring him to inter-
cede with a gentleman and a “lady of rank.” 29

Alexander Balfour, who had murdered the husband of
his former sweetheart in 1687, was sentenced to be beheaded
by the maiden. During a visit, his sister, who was very
much like him in face and stature, changed clothes with
him and allowed him to escape. “His father died in the
reign of Queen Anne,” report the Chronicles of Crime,30

24 Walter Thornbury, Old and New London, Its History, Its People and Its
Places (London, 1899) vol. I, p. 242.

25 Pike, History of Crime in England (London, 1873), vol. I, p. 142.

2“ Chronicles of London (ed. Charles Kingsford Oxford, 1905) p. 28.

27 The Chronicles of Crime or New Newgate Calendar, edited by Camden
Pelham (London, 1887), vol. I, p. 22.

28 The movers obtained the clause: “To reprieve such of the condemned
lords as deserved his mercy.” The King replied: “That on this and other
occasions, he would do what he thought most consistent with the dignity of
the crown, and the safety of his people.”

29Chronicles of Crime, vol. I, p. 95.

391d. at 4.

32

“but he had first obtained a pardon for his son, who suc-
ceeded to the title and honors of the family and died in the
year 1752, sincerely penitent for his crime.”

We are told that sometimes the interest of third persons
brought about a reprieve, as it happened in the case of
Christopher Layer, a barrister of considerable standing and
reputation.31 There is no doubt that similar interests of
third persons often backed the King’s decision to pardon a
criminal and to avoid “a state of confusion.” Solicitations
of important personalities may have had in some cases, not
the result of granting a pardon, but of facilitating an
escape.32 .

Counterfeited letters of pardon—In the troubled times
of the Middle Ages forged letters of pardon and all kinds
of pardon frauds seem to have been frequent. Pike 33 tells
the story of a brother who was pardoned for the merits of
the other brother.“

In the rolls of the year 1348 a case appears in which com-
mon report attributed to one William Rydout the practice
of counterfeiting various royal letters. “He was appre-
hended, and on him was found what purported to be a copy
of a general pardon of homicides and felonies granted to
him by the king.” 35

Pardons gran-ted and Implanted—The greatest shock to the
authority of the royal privilege was given by a rather com-
mon practice not to keep promises of pardon given during
riots and popular movements. The ancient Chronicles
abound in individual and collective cases of pardons
granted during times of danger and emergency, and not

 

31 Id. at 34. “As he had some important aifairs to settle, from the nature
or his profession, the court did not order his execution till more than 2 months
after he had been condemned; and the King repeatedly reprieved him to pre-
vent his clients being suflferers by his afl’airs being left in a state of confusion.”

32 “The Earls of Winton and Nithisdale afterwards found means to escape
out of the tower; and Mssrs. Forster and M'Intosh escaped from Newgate;
but it was supposed that motives of mercy and tenderness in the Prince of
Wales, afterwards George the Second, favoured the flight of all these gentle-
men.” Chronicles of Crime, vol. I, p. 23. (The escapes were made in 1716.)

83 Pike, History of Crime, vol. I, p. 295.

34“One Walter Mast was indicted for murder and lodged in Scarborough
Gaol. His brother John then joined the King’s army, fought at Crecy, and
during the whole campaign passed by the name of Walter. This heroic liar
then asked for a pardon in the name of Walter Mast and obtained it in the
ordinary course.”

35 Pike, History of Crime, vol. I, p. 272.

33

respected when the trouble was vanished. Among the com-
plaints brought forward during the revolution of 1399 and
the deposition of King Richard II, his immoral pardon
practices figured largely,

The Chronicles relate: 3“ “And cruelly he made the Erle
of Arundel by fforce of men 011' Armes, Archers, and grete
strenth off people to him gadrid and strenhthed in this en-
tent, damnabilich fforto to be heeded; antwithstandyng that
the same Erle askyd opynly in the parliament to have his
Chartre alowed him off general pardon that the kyng hadde
grantyd hym ofi latter tyme; askyng Rihtwysnesse to be
done vnto him; but all was ffor nought ffor he was nat
herde.”

Richard II used to grant pardons upon large sums being
paid to him; but these pardons appear to have been pri-
marily a form of extortion. The pardoned persons were
sOon approached anew by him, as the Chronicles tell us:
“Yitt myht they not have no reioyse, no profit, ne noon
efl'ecte by thes lettres ofl’ pardon, tyl they hadde made newe
ffynes and Raunsons fforto save and kepe her lyffes. Wher
thurh meny loste hys goode and were made pore to the
vttermost and distroyed; the which was grete shame and
hynderyng bothe to the name and state off the kyng.” 37

Of the many examples of general pardons not kept by
the King we select two famous examples: “The rebellion
(of \Vat Tyler, 1881) was at length suppressed, but only.
after promises had been made by the young King, which
Parliament afterwards refused to ratify.38 * * * The
young King, though he had behaved with great courage,
had shown that even kings may, under pressure of circum-
stances 39 promise that which they have no legal power to
perform.” 40

3° Chronicles of London. (ed. Kingsbridge Oxford, 1905) p. 26.

37 Id. at 28.

38The constitutional basis of this ratification is obscure. What we note is
the practice.

39 When kings were accessible to “great solicitations” in order to obtain a
pardon for their friends, they cannot be expected to be deaf to “great
solicitations” in an opposite sense.

4EOPlke, History of Crime, w]. I, p. 337. Trevelyan, History of England,
p. 241, gives a description which apparently comes closer to the truth.
“The King was in the Tower,” he reports, “which his subjects proceeded to
blockade. The situation was saved—but by very base moans. Richard II

34

Another bad case occurred in 1450. It was the rebel
of Jack Cade. The Chronicles give the following rep

“And after this the Chaunceler of England, Vpon
morne after granted to all the kentisshemen with their C
teyne a generall pardon. And so they departed euery n
to his awne. And when all were departed there were m
proclamacions, that what man cowde take the Capete
Quyk or Deed, shuld haue a Ml marks for his labour.
Jack Cade was caught and quartered, notwithstanding
solemn general pardon.

The distrust of the King’s word renders understand-
the answer of another revolutionary leader, Robert K
one century later. It was the so-called Norfolk Commot
of 1549. The King answered on their demands, that a
liament would be called in the following October to c
sider and redress the petitioners’ grievances and that a g
eral pardon would be granted to all who should at o
lay down their arms and return to their respective hon
When York Herald read the proclamation of pardon at
Oak of Reformation some of the insurgents cried out: “
save the King.” But Kett said: “Kings are wont to part
wicked people, not just and innocent men.” The gene
pardon ended with a great number of insurgents hanged
the Oak of Reformation and Robert. Kett hanged alive
chains on the top of Norwich Castle.42

Pardon formalities.—Although the Connnentaries
silent the Chronicles speak of certain formalities connec
with the declaration of general pardons. In 1553’ under
reign of Queen Mary, the prisoners were brought from
many London prisons “to ye Crosse in Chepe, where
queues merciful pardon was declaryd into them to th
great comfortes.”4=3 This is the famous Cheapside or

was sent to a conference at Mile End with the rebels where he made t1
a promise of pardon and emancipation frOm villeinage, which his counsell
had no intention to carry out. * * * The immediate result (of the
rising of 1381) was a strong and cruel reaction, when every promise made
the peasants in the hour of need was broken and a bloody assizes mad
mock of the pardons granted by the King.”

“Chronicles of London, (ed. Kingsford Oxford, 1905) p. 161.

42 Book of Days, ad 20 Juli, vol. II. p. 91.

‘3 Two London Chronicles, from the collection of John Stow, ed.
Charles Lethbridge Kingsfcrd, Camden Miscellany, vol. XII (London, 19
p. 34.

35

erected by Edward I, whereby books used to be burnt by the
hangman and the punishment of the pillory executed.44

Probably a general pardon applied only to criminals
being in prison and not at large, as far as the words of the
amnesty did not include every participant. There is a
curious story of a general pardon issued by Henry VIII in
the spring of 1513. The King pardoned all the rioters
brought in chains'before him. “Here it is to be noticed
that diverse offenders that were not taken, hearing that the
King was inclined to mercie, came well apparelled to West-
minister 45 * * * and came in among the prisoners,
willinglie to be partakers of the King’s pardon.” 4"

The facility with which pardons could be obtained was
the subject of many petitions in Parliament.“17 Ve must re-
member that besides the usual forms of pardon there were
other customs or practices which accomplished the same or
similar result of mitigating the barbarous severity of the
penal laws. The principal institutions of this King—leav-
ing the customary law of “king’s evidence” 48 aside—were
benefit of clergy and the institution of the sanctuary.

Benefit of clergy—The benefit of clergy arose out of the
struggle between state and church in the twelfth century
over clerks charged with crime.49 “In the twelfth century
the line between cleric and lay was very vaguely drawn,

0

44See Walter Thornbury, Old and New London (London, 1889) vol. I, pp.
332—335.

45 Id. vol. I, p. 314. The prisoners had halters round their necks.

45 For a similar pardon ceremony in St. Paul’s churchyard see Thornbury,
vol. I, p. 243. “When a pardon was granted, the prisoner was supposed to
plead it in open court, on his knees before the bar”—apparently an old
English custom, brought over to the new country. The Virginia instruc-
tion is reported by Arthur P. Scott, Criminal Law [in Colonial Virginia (Chi-
cago, 1930), p. 120. That the prisoner when pleading pardon in England
had to kneel is indicated by Rex V. Hales, 2 Stra. 816, 2 Geo. II: “Being
only for a misdemeanor he was not put to go to the Bar, or plead it
upon his knees.” For the custom of giving the judges gloves in pleading
pardon, see Clover, Baconis abridgment, PardOn, v01. VI, p. 143. The deliv-
cry of the gloves signified the giving up of a right, life, or property. See
Jacob Grimm, Deutsche Rechtsaltertuemer (Leipzig, 1899), vol. I, p. 210.

4" Pike, History of Crime, vol. I, pp. 296, 482.

4rt3'1‘he story of Nathaniel Hawes, executed in 1721, presents an individual
who by repeatedly being admitted as king’s evidence, becomes a confirmed
criminal. Chronicles of Crime, ed. Camden, vol. I, p. 29. In 1678, three
men are hanged on the confession of an accessory, Prance, he being par—
doned. Seven years later he confessed that he had invented every part
of the story. W. W. Hutchings, London Town, Past and Present (London,
1909) vol. II, p. 920.

“Jenks, Short History, p. 156.

36

owing to the existence of a number of ‘minor orders’; while
the rough and ready test adopted by the royal judges en-
abled practically any man who could get up the small quan-
tity of Latin necessary to enable him to repeat a well known
verse of Scripture, to escape a conviction ‘by pleading his
clergy.’ )2 50

Stephen 51 has very justly compared benefit of clergy with
the privilege possessed by European British subjects in
India, Turkey, Egypt, and China, to be tried before their
own courts. The clergy was free from the jurisdiction of
the lay courts. Pike cites a case which is a good illustra-
tion of the proceedings upon the claim of privilege of
clergy.52 “In one case in which a clerk had committed va-
rious offenses, had robbed his father’s house, and had
claimed the privilege of his letters, the order of the court
was that he should be delivered to the ordinary, but that
an inquisition should first be held by the country to deter-
mine the truth of the charges, and under what description
the ordinary was to receive him. He then became a clerk
convict; and the royal authority was so far maintained
above that of the Church as to throw him into the Bishop’s
prison * * * After this stage of the proceedings the
criminal was, according to the canon law, still able to excul-
pate himself before the Bishop by the ancient method of
compurgation. He had but to make oath of his innocence
and to find others who would swear, as a matter of form,
that they believed him, and he became again a free man,
wholly purged from the taint of crime.”

Benefit of clergy was given only to men; and not before
1692 53 did women obtain a privilege analogous to that of
the men. Generally, benefit of clergy excused from capital
punishment and substituted minor penalties, such as brand-
ing in the hand (“unless he was a peer or a clerk in
orders ”)54 or imprisonment not exceeding 1 year. It either
was equal to a full pardon or had the effect of extenuating
circumstances. In later times the trend was the other way,

wwid.

51 Stephen, A History of the Criminal Law of England, vol. I, p. 459.

‘2 Pike, History of Crime, vol. I, p. 297 et seq.

53 Stephen, A History of the Criminal Law of England, vol. I, p. 462.
541d. at 463.

37

and many ' important crimes were made non-clergyable
felonies.

Holdsworth 55 quotes a passage of Blackstone praising the
benefit of clergy as it existed in his day: “The wisdom of
the English legislature,” he says, “has, in a course of a long
and laborious process extracted by a noble alchemy rich
medicines out of poisonous ingredients, and converted, by
gradual mutations, what was at first an unreasonable ex-
emption of particular popish ecclesiastics, into a merciful
mitigation of the general law with respect to capital pun-
ishment.” This might have been the last result of absurd-
ities surviving through centuries. The old Chronicles tell
us a very different story. We hear the chronicler groaning
when he writes: “Therefore it is adjudged that the said
William Hegge shall be hanged by the neck * * * And
thereupon the aforesaid William Hegge says that he is a.
clerk and that he can read. * * * And because that the
Court is without the Ordinary such Court cannot proceed
further to judgment. Therefore the same William Hegge
is committed to the Gaol of our Lord the King at New Gate
there to remain until * * *.” 5“

This happened in 1406 in the Mayor’s Court of the city of
London and we hear of two other cases in 1345 and 1382.
We even possess statistical data about the numerical extent
of the privilege. At the Lent Assizes of 1398 there were
134 prisoners. We learn about the fate of 64 of them: 5"

 

 

 

 

Hanged--- 17
Flogged 20
Special pardon 1
General pardon 15
Benefit of clergy 11

 

They were able to read, they were branded and set free.58
The importance of this mitigating institution is clearly
demonstrated by these figures, but this kind of mitigation
was an unreasonable and an unjust one.

Sanctuaries—The “benefit of clergy” favored the man
who could read, the intellectual of the Middle Ages. The

55W. S. Holdsworth, A History of English Law, vol. III, p. 302.

l5“Riley, Memorials of London and London Life (1868) p. 563.

57 Stephen, A History of the Criminal Law of England (1883), vol. I, p. 467.
‘3 “Legunt, umntwr et deliberantur.” Ibid.

38

institution of the sanctuary favored the man of bodily abil-
ities and rash determination. We have not mentioned the
sanctuary in the history of pardon in German law and cus-
tom. In Germany the fugit-ive could seek protection in the
holy woods and on the altars of the heathen gods. Later
on churches and monasteries took the place of the deposed
old heathen powers. Places of sanctuary were not only the
dwellings of kings and princes, but also some towns and
special farms, mills, fields and dwellings of judges.59

J enks has demonstrated 6" that the “privilege of sanctuary
was, originally, a notable achievement in the crusade waged
by the Church in the Dark Ages against violence and dis-
order.” The church undertook to have the blood feud sus-
pended during certain seasons and in certain places. “If
the accused could succeed in reaching some place which
was sheltered by the protection of the Church, before the
avenger of blood caught him, he could, practically, evade
the challenge to battle; for the thunders of the Church would
have blasted the daring ‘appellor’ who had ventured to drag
the fugitive from the sacred precincts.” This was the
theory. In practice the sanctuary did not always protect.
There is the famous case of the London Bow Church set on
fire, in violation of its right of sanctuary, to drive out Wil-
liam Fitzosbert, otherwise William with the Longbeard.61
This man, “having a wonderful gift of speech and some
knowledge of law,” and rousing the people against the
mayor and the aldermen, was ordered arrested. Having
slain one of the men who sought to arrest him “he with some
friends fled to Bow Church for sanctuary, barring the door
and taking refuge in the tower. As they were well supplied
with food, Archbishop Hubert scrupled not to order the
church to be fired, and the refugees were smoked out.” 62

There are more instances in later times. There was a
celebrated sanctuary in St. Martins in London City. Thorn-
bury ‘53 relates of the year 1442: “A soldier * * * was

59 Jacob Grimm, Deutsclze Rechtsaltertuemcr, vol. II, pp. 532—540.

60 Edward Jenks, A Short History of English Law (1922) p. 157.

61 Detailed narration in W. W. Hutchings’ London Town, Past and Present,
vol. I, pp. 68—70.

62'Id. at 69.

“Walter Thornbury, Old and New London, Its History, Its People, and
Its Places (1889) vol. II, pp. 214, 215.

39

dragged by five of his fellows, who rushed out of Pannier
Alley, in at the west door of the sanctuary; but that same
day the two sheriffs came and took out the five men from
the Sanctuary * * * The Dean and Chapter of St. Mar-
tins, furious at this, complained to the King who * * *
returned the five soldiers to their former retreat. In the
reign of Henry VII the right of sanctuary was again vio-
lated, and again disputed at law, and this time the sheriffs
were ‘grieviously finded’ for their pains.”

When a prisoner taken forcibly from a sanctuary was
popular, the masses joined the protest of the church against
the violation of sanctuaries. But the hated prisoner was
still in danger of lynch law in spite of all rules. So it
happened in 1428 that a murderer who was to be brought
from the sanctuary of St. George, Southwark, to the east
coast 64 was stoned to death by the enraged populace, “not-
withstanding all the resistance of the constables.” 65 Of
course, in innumerable instances sanctuary saved the fugi-
tive’s life, whether he were a simple apprentice 66 or a
queen.67

Pardon as a factor in the development of criminal law.—
Pardon today is a privilege exercised by the Parliament or
the King in spite of a very elaborate criminal law. In olden
times pardon had quite another function. It played an
important and decisive role in the development and refine-
ment of a rather static and rigid law. It seems that the
legal solutions of the problem of responsibility, of self-de-
fense and even of an enlightened treatment of the juvenile
delinquent did not begin with a change of law but were

0* This is the later solution of an impossible situation: “The fugitive
virtually condemned to perpetual imprisonment * * * the accuser
* * * virtually condemned to perpetual watching outside the sacred
spot * * * The accused took the oath of abjuration " * * and was
then given a safe-conduct * * * to the sea.” Jenks, A Short HistOry
of English Law (1922) p. 158.

B5Thornbury, Old and New London, Its History, Its People and Its Places,
vol. II, p. 143.

66“Whervpon the yong man * * * seyng the greate rumour * It *
went to Westm’ and ther abode as a sayntuary man; Whereby he saved his
lyf.” Kingsford, Chronicles of London, p. 166. (Disturbance of Lombards,
1554.)

67“And then the Quene, beying in the Tower * * " departed thens
secretly and wente unto Westmynster, where as she abode as a Sayntuary
woman a good whyle after.” Kingsford, Chronicles of London, p. 182 (in
the year 1471).

73115—39—v0L. III—4

40

started by the mitigating application of the privilege of
pardon. This development is easily traced in the ancient
English law and the study of this remarkable problem of
legal history could easily be extended.68

Pardon and the law of insanity—The legal material relat-
ing to the treatment of insanity is not too copious. “The
only point worth noticing as to the ancient law is that in
very ancient times proof of madness appears not to have
entitled a man to be acquitted, at least in case of murder,
but to a special verdict that he committed the offense when
mad. This gave him a right to a pardon.” “9 Such re-
prieve or pardon ea: necessitate Zegis is still known to Eng-
lish law, when a man is recognized as being mad after
judgment or after order for execution is received.70

Pardon and self-defense—Self-defense is another legal
principle which originated from the application of the priv-
ilege of pardon to the rigidly strict law of homicide, till in
the course of centuries the law itself underwent a change.
We will restrict ourselves to short indications.

The statute of Gloucester in 1278 (6 Edw. I, c. 9) is in
these words: 7-1 “The King commands that no writ shall be
granted out of the chancery of the death of a man to inquire
whether a man killed another by misadventure 72 or in self-
defense, or in other manner by felony, but if such a person is
in prison and before the justices in eyre or justices of gaol
delivery, puts himself on the country for good or evil, and
if it is found by the country that he did it in self-defense or
by misadventure then on the record of the justices the King
shall pardon him if he will.”

In 1310 an entry appears upon the Parliament roll of 3
Edw. II, in answer to a petition complaining of the ease

 

c‘SThere are other such problems. The punishment of transportation for
instance “seems to have occurred in the reign of Charles II, when pardons
were granted to persons capitally convicted conditionally on their being
transported for a number of years—usually seven.” Stephen, A HistOry of
the Criminal Law of England, vol. I, p. 480.

6"Stephen, op. cit. supra, supra note 68, vol. II, p. 151. “In Fitz Herbert,
Comm 351 (e Edw. 3, 1930) it is said: ‘Troue fuit par enquest que home
lunatike occist am home * * * par que le roye lui graunt charter de
pardone.”’ Ibid.

fifgephen, New Commentaries on the Laws of England (1903) vol. IV,
p. .

71 Stephen, A History of the Criminal Law of England, vol. III, p. 36.

'3 The legal treatment of killing by misadventure starts from pardoning
the guilty and condemned man.

41

with which pardons were granted to homicides and other
offenders, in these words: 73 “Le Roy voet que desoremes ne
soit graunte pardon de felonie Lorsque en cas ou ancienne-
ment soleit estre grantez cest a saver, si hom tue autre par
mesadventure ou soy defendant, on en deverie (insanity)
et ce soit trove apr rec des justices * * *.” We see that
homicides in self-defense or by accident were primarily
treated as matters requiring pardon and possibly involving
some forfeiture.74 The royal pardon when obtained did
not shelter the accused from proceedings by way of ap-
peal.75 Very gradually the rules of misadventure and self-
defense were evolved. And it is astonishing how severe
these rules were regarding self-defense. A case told by
Holdsworth shows that no man was allowed to use force
unless he could escape in no other way.76

Pardon and juvenile deli-ngueneg/.——There are even a few
indications that the treatment of the juvenile delinquent
began in the right of pardon. Holdsworth "’7 relates a pre-
cedent of a pardon to- a child under 7, although it was laid
down that a child under 7 could not be guilty of felony.
The apparent opposition to the simple acquittal of the
child had to be met by pardon.

Another late case appears in the Chronicles of Crime.78
William York, 10 years old, murdered in 1748 a child of
5 and buried it in a dunghill. “When he was examined he
showed very little concern and appeared easy and cheerful.
T he boy was found guilty and sentenced to death; but he
was respited from time to time on account of his tender
years, and at length pardoned.”

Pardon and old age—We hear of a very old man who
was partially pardoned for his advanced years in'1380. In
contrast to Chinese law, old age never has developed in
Europe the distinct legal treatment accorded to childhood.
It remains within the uncontested domain of pardon. To
a superficial survey the English law of pardon seems to be

73 Stephen, A History of the Criminal Law of England, vol. III, p. 38.
74 Id. at 40.

75 W. S. Holdsworth, A History of English Law, vol. III, p. 312.

75 Id. at 313.

"Id, vol. II, p. 358.

78 Pelham, Chronicles of Crime (1887) vol. I, p. 127.

42

lacking in that astonishing variety of secondary pardon
types which we have noted in the medieval German law.
But when we pass from the textbooks of constitutional law
to the real life of the English people, shown by crime re-
ports and chronicles, we see that the English practice, al-
though not abundant, is nevertheless quite rich in these cre-
ations of customs and customary law.

Pardon on. request 0 f vietz'm.—We find frequent instances
where the penalty is remitted at the entreaty of the victim.
Particularly, the practice of the mayor’s court of the city
of London presents many such cases. Reports of pardons
of this kind are found in the years 1355, 1379,1387, 1388,
1390, 1413, and 1415. The crime is nearly always insult of
the Mayor or an Alderman. The pardon is mostly a free
pardon; in one case the Mayor is offered “100 tuns of
wine.” 7" Or lighter penalties were substituted. Instead of
having the right hand chopped 011‘, the punishment of pil-
lory is substituted; then again the pillory is exchanged for
the slight punishment of being obliged to carry a lighted
wax candle “from Guildhall through Chepe and Fleet-
streete.” 8° Frequently this pardon is a conditional one, as
in 1355, 1379, 1388, and 1390. In 1413 a man slandered an
Alderman by cursing him. The insult was pardoned, but
not the grave offense of cursing, probably because it endan-
gered not only the Alderman, but the commonweal.81 One
alderman frankly gave his reason for asking for pardon of
the condemned slanderer: He was afraid of him.S2

Failure of the 61’602!tiO72-.—AS in medieval Germany, the
broken rope plays a large role in pardon practice. The
custom was already in decline, and we therefore observe dif-

 

”9 “He offered to the said Mayor 100 tuns of wine for the contempt and
oifense aforesaid, that he might be restored to his favour.” Riley, Memorials
of London Life (1868) p. 277.

801d. at 493.

$1Id. at 593. “Praying openly before the people that hell might devour
him (the alderman) * ‘ ‘ and uttering many disgraceful and opprobrious
words against the same " “ ‘ ”

m“And thereupon, the said William Sevenok (the insulted alderman) then
and there in Court shewed, that such imprisonment would entail upon him the
very utmost distress, for that, if he were put in jeopardy by such great per-
sonages. he would hardly ever be able to recover from the effects thereof;
humbly entreating the said Mayor and Alderman that they would remit such
imprisonment * "‘ *” I11 reading the request of the Alderman. who was
an officer in the tower ward of London, we seem to hear the defendant, not
the insulted man, asking for his pardon. Id., at 605, 606.

43

ferent treatments. In 1701 the famous Captain Kidd was
hanged again, after the rope had broken and he had fallen
to the ground.83 In 1705, 1728, and 1767 a pardon was ob-
tained in such event. The details of the “half-hanged
Smith” (1705)84 and of Margaret Dixon (1728), who was
considered to have been “executed” and restored to life,85
are remarkable.

Other atypical forms of pardone—Additional cases of
pardon, apparently sanctioned by ancient custom, might be
mentioned.

It was an old German habit to order one criminal to
execute others and thereby to obtain a pardon for him-
self.86 A similar case occurred in England during the Lon-
don riots, starting on June 2, 1780, where numerous cul-
prits were executed. “Among the rioters, say the Chronicles
of Crime,87 to sum up the account of their infamy and
wretchedness was Jack Ketch himself. This miscreant,
whose real name was Richard Dennis, was convicted of
pulling down the house of Mr. Boggis, of New Turnstile.
The keeper of Tothill-fields Bridewell would not suffer Jack
Ketch to go among the other prisoners lest they should him
tear to pieces. In order that he might hang his brother
rioters, he was granted a pardon.”

It was a very old belief that by touching the King’s
sacred person, a pardoning force flowed over to the culprit.
We are told of such a case during-the abdication of Richard
11.38 Mere chance, taken to demonstrate God’s will, must

S3 Pelham, Chronicles of Crime, vol. I, p. 6.

841d. at 12.

851d. at 72. “By Scottish law, not only was she released by the execution
from the consequences of the crime * * * but from the bonds of matri-
mony also; but her husband having by this time returned from sea, he was
publicly remarried to his old wife within a few days after she had been
hanged.” She thus married her widowed husband.

86 The same custom is met in the early days of Connecticut. See the
curioas case where the man on whom the duty of hangman devolved ab-
sconded, and where two boys were thereupon ordered to hang a criminal.
They refused, but General Putnam, “drawing his sword, ordered them for—
ward, and compelled them at the sword’s point to obey his orders.” J. W.
Barber. Connecticut Historical Collections (1836) p. 396.

87 Pelham, Chronicles of Crime, vol. I, p. 299.

88“And the Moneday ffolowyng, that is fforto say on Symond eve and
Jude, the commones prayden to here the juggement ofif kyng Richard. And
the Erchebisshop of Caunterbury hadde the words and seyde that as
touchyng the kyng, that now is, he ath grantyd his lyff.” Kingsford,
Chronicles of London, p. 57.

44

be reckoned among the powers that were able to work a par-
don. In 1762 sailors of the British marine were ordered
after a mutiny to cast lots.89 “While‘waiting * * * they
were told that his Majesty had pardoned fourteen of them,
but one of them must die; and they were ordered to cast lots.
The fatal lot fell upon the second man that drew, Matthew
M’Can, who was soon run up to the yard—arm, where the
body hung nearly one hour.”

AMERICAN LAW

General trend of development—The prerogative of par—
don and its legal development presents three distinct trends
in the United States. The first settlers did not want to
reestablish the tyrannical power they had just fled in Eu-
rope. Therefore, the fundamental laws adopted by the
three River towns in 1638 and 1639 9° constituted a general
court, which had exclusive power to make laws or to repeal
them. This court could grant pardon. The Governor’s
secondary position is clearly indicated by his second title
“Moderator.” ”1

The charter of the Massachusetts Bay colony gave the
pardoning power to the company, the Governor and the
company’s officers.92

In the New Jersey colonial government, the Governor and
his council were allowed after condemnation to issue re-
prieves until the case should be presented to the proprietors
who would either pardon or command execution of the sen-
tence.98 A similar provision was in force in North Carolina
as long as it remained a proprietory colony.“

Lord Baltimore’s charter for Maryland authorized him
and his heirs to “Remit, Release, Pardon, and Abolish all

8’ Camden Pelham, Chronicles of Crime, vol. I, p. 196.

9°J. Hammond Trumbull, The True Blue Laws of Connecticut and New
Haven (1876), p. 57.

91“ * * * In which Court the Governor or Moderator shall have power
to order the Court, to give liberty of speech and silence unseasonable and
disorderly speaking, to put all things to vote, and in case the vote be equal
to have the casting voice.” Ibid.

92 Thorpe, American Charters, Constitutiorzs, and Organic Laws, vol. I, p. 53.

”Id, v01. V, p. 2540.

94 Id. at 2760.

45

Crimes and Offenses whatsoever against such laws, whether
before or after Judgment passed.” 95

In the very early days there existed the same suspicion
of arbitrary suppression and of abuse of the privilege which
we have described in the English history. The connecting
ties with the old country were leose and the King readily;
permitted this or that improvised form of self-government.
lVith the growing economic and fiscal importance of the
American territories, England’s grip became firmer. The
Governor represented the King, fountainhead of justice and
mercy. No popular interference with his privileges was
tolerated.

After the Revolution the absolute right tended again to
be restricted. Some very serious crimes were exempted;
they could not be pardoned at all or only by an act of spe-
cial legislative clemency. Then the right to pardon “be-
fore judgment” was abrogated. Finally the powers of the
Governor were limited by the compulsory cooperation of
the board of advisers and certain rules of pardon procedure
and pardon publicity.

We may describe very briefly the development in three
representative States: Pennsylvania, Illinois, and Virginia.

Pennsylvania—In 1681 William Penn was made propri-
etor of the province of Pennsylvania. He was named su-
preme Governor and had the power of making laws with
the advice, assent, and approbation of the freemen, of ap-
pointing oificers and of granting pardons.96 “The new Gov-
ernor brought to the consideration of the laws of Pennsyl-
vania the recollection of his own illegal trials and imprison-
ments” 97———a lesson which ought to be taught to every pos-
sessor of the privilege of pardon. The Governor was
allowed the full power to remit, release, pardon, and
abolish whet-her before judgment or. after—all crimes and
offenses, with the exception of treason and malicious mur-
der. In such instances Penn was empowered to grant re-
prieves until the royal will could be determined.98

 

95Id. vol. III, p. 1680. The Rhode Island charter, granted the following
year, was similar. Id. vol. VI, p. 3125.

93 Encyclopedia Britannica (14th ed.), vol. XVII, Penn., p. 475.

"M. R. Brainsford, The Making of William Penn (1930), p. 345.

98 See Thorpe, op. cit. supra note 92, vol. V, p. 3038.

46

The first constitution of the State, adopted September 28,
1776, limited the powers of the president. A council of
five members was added to cooperate with the president or
in his absence, the vice president. In cases of treason and
murder, the president could reprieve, but not pardon, until
the end of the next session of the assembly. There were no
remissions or mitigations of punishment for impeachment,
except by act of the legislature.

This council was abolished by the new constitution, pro-
claimed September 2, 1790, but the large number of pardons,
combined with the increasing criminality (mostly caused
by increased immigration), started a discussionwhich lasted
for 80 years, as to how this excessive and obnoxious one-man
pardoning power could be controlled and limited. The new
constitution, adopted January 1, 1874, (article IV), ac-
complished this change,99 and brought the development to
a preliminary end.

I ZZinoz's.——The history of pardon in Illinois is somewhat
similar, although Illinois did not become a separate terri-
tory until 1809. Bruce, Burgess, and Harno have given a
short description of the development in the Illinois crime
survey.1

Illinois was ceded in the year 1765 by France in the
Treaty of Versailles to Great Britain, and became a part
of the Colony of Virginia. In 1787 Virginia ceded its
western territories to the United States and Illinois was
made a county in the Northwest Territory. After having
belonged for a short time to Indiana and in 1808 having
been made a separate territory, Illinois was admitted to the
Union in 1818.

Until January 23, 1811, the pardoning power in Illinois
was vested exclusively in the President of the United States
“and manifestly included all the prerogatives of the Eng-
lish King, who had been looked upon as the fountainhead of
all justice and who could exercise clemency both before and
after conviction, and under whatever condition he desired

 

99 “But no pardon shall be granted, nor sentence commuted, except upon the
recommendation in Writing of the Lieutenant Governor, Secretary of the Com-
monwealth, Attorney General and Secretary of Internal Affairs, or any three of
them, after full hearing, upon due public notice and in open session.”

1Andrew A. Bruce, E. W. Burgess, and Albert J. Harno in Illinois Crime
Report (1920) pp. 428—430.

47

,0 impose.” 2 Section 5, article 3, of the new constitution

aid: “Power to grant reprieves and pardons after convic-
ion except in cases of impeachment is vested in the Gov-
rnor.”

Later conditional pardon was introduced, and in the con-
titution of 1848, regulations are mentioned as to the man-
ier of applying for pardons. The power of the Governor
.as thus been restricted, step by step. He can no longer
rant pardon before conviction; cases of impeachment are
xplicitly exempted; pardon can only be granted when the
rovisions in regard to the form of application are strictly
bserved.

Colonial Virginia—The most detailed description of the
ardon situation in the seventeenth, eighteenth, and nine—
eenth centuries is presented by Scott in his book on the
riminal Law of Colonial Virginia.3 On April 11, 1606,
ames I of England granted a charter which empowered a
umber of “adventurers” to establish two colonies in Amer-
ca. The seven-man council nominated by the King was to
e the link between this essentially commercial enterprise
nd the royal crown. “Within the general limits of the
'harter and the more specific instructions from the King,
heir authority, executive, legislative, and judicial, was
upreme and absolute.” 4 But in those rough times, when the

spirit of mutiny and the menace of Indian attack haunted
the colony, no clear legal distinctions could be drawn by
men who were not trained in law. Therefore, in the first
years “one finds a mixture of ordinary criminal law, com-
pany discipline, martial law, and purely arbitrary action.” 5
Martial law was nothing but another denomination for
broad discretion.6

About 1609, the local council which had power to elect its
own president was replaced by a royal Governor. In ordi-
nary civil and criminal cases, when he did consider martial

 

2The prerogative of the King is not absolutely without limitations as we
have seen.

'Arthur P. Scott, Criminal Law in Colonial Virginia (1930).

4Id. at 4.

5Id. at 5, 6.

“‘We find * "‘ * that one colonist. about to be hanged for striking
a member of the Council, saved his life by revealing a plot: As a result
Kendall, a councilor, was tried by a jury and shot.” Id. at 6.

48

law useful, the Governor was advised to proceed “rat
uppon the naturall right and equity than uppon the n
ness and lettre of the law.” 7 The power of par
rested—we are still in the intermediary period—with
alone. There were a few restrictions on his power: A
rule he had to have the advice and consent of his coun
he was not permitted to grant pardon for treason or wil
murder. Such criminals were reprieved until the Ki
pleasure was known. Scott mentions a strange case 0
man convicted for murder who was able to prove his al
The Governor was not permitted to pardon him; until
pardon of the Queen reached the shores of Virginia hel
to stay in prison, but he was “favorablytreated.” 8

We cannot be surprised to recognize English legal c
cepts in the new country. In cases of homicide by mis
venture, the persons convicted were entitled to a pard01
right.9 Since there was no seal or chancellor in c0101
Virginia,10 the general assembly declared them pardo
Here we see the law marching on, an interesting mixtur
special legislation, pardon, and acquittal. The term ‘
quittal” even appears timidly in the accessory question
forfeiture of the goods and chattels.11

Self-defense; youth and old age.—Homicide in self-
fense likewise was handled by that ancient legal detour
way of pardon, which we met in the medieval English 1
“Justifiable homicide was not punished at all * *
Technically it was punished by forfeiture of goods, but
practice a pardon and restitution of goods were alw
granted as a matter of right.” 12 The verdict of not gu'

 

7Id. at 7.

8Id. at 116. After 1 year and a half the prisoner was still in pr
under reprieve. No attention was paid to the case in England. Meanw
the Queen had died and the council now advised the Governor that in t
opinion he had power to pardon, since this case was hardly the same
willful murder.

9Id. at 117. Case of Colonel Swan indicted for murder of servant. “
fact found by the jury homicide per misadventure whereby he is by la
England to sue out his pardon of course under the broad scale from
Chancellor.”

10 “Since there is no sea] or chancellor, the General Assembly declared
pardoned.” Scott, op. cit. supra note 3, at 117.

11 “And as concerning his goods and chattels to be forfeited thereby t
likewise conceive and declare that the vigor and forfeiture hereof shall
be taken, and that he shall be acquitted for the same.” Ibid.

12Id. at 197. “Two cases in the council records for Oct. 24, 1
indicate the procedure on Verdicts of homicide pcr infortuniam: ‘On

49

brought in later in such cases was meant to save the accused
the expense of suing for his pardon in course.

We have seen that in English law the reformed treatment
of the juvenile criminal primarily originated from the prac‘
tice of granting a pardon in suitable cases. We learn of one
such case in the jurisdiction of colonial Virginia.13 Much
later, in 1851, an irregular court, the vigilance association of
Santa Clara, makes allowance for old age in a cattle thief.“
We met the same consideration in the Mayor’s court of the
city of London. Whilst irresponsibility of the child and
even the juvenile offender has reached the independence of a
grown-up legal doctrine, old age has not, and mitigation on
this ground still depends on the exercise of the pardon
privilege. I

Atypical forms of pardon in colonial Virginia—Com-
pared with the abundance of forms developed by the
German and English law relating to the privilege of par-
don, the American display of pardon rules and attitudes
appears rather monotonous. This impression changes as
soon as we quit reading constitutions and turn to records,
chronicles, and the facts of judicial life. We mention but a
few of these remarkable phenomena which bridge the gap
between past and present. ’

The Calendar of Dutch Manuscripts,15 reports of the 17th
of January 1641, of New York:

Eight negroes who were accused of the murder of another
negro pleaded guilty. The council sentenced the prisoners to
draw lots, to determine who shall suffer death; whereupon the

petition of George Wortham convicted this General Court for killing one Roger
Davis, of Middlesex County, It being found by the Jury that the said Fact
was committed se defendendo The Governor was pleased with the advice
of the council to order a pardon to be prepared for the said Wortham in the
usual form.’ John Jones, convicted of manslaughter, but ‘altogether Casual
and unvoluntary,’ Governor remits burning in hand, and orders Attorney
General to prepare a pardon.” Id. at 198.

13“Of the four tried. one was acquitted, and one, on account of his youth
was reprieved after he had been sentenced. In recommending him for pardon,
the Governor advised that his little property should be restored.” Id. at 160.

14“At another time this Committee convicted an old man and his son of
cattle stealing and sentenced both to corporal punishment. The father
pleaded for mercy on account of his age and the son sturdily offered to bear
a double share, an act of filial piety that moved the judges to remit the
chastisement of the elder, although the dutiful son received his own allotted
stripes.” Mary Floyd Williams, History of the San Francisco Committee or
Vigilance of 1851 (1921), p. 377.

15.1. H. Trumbull, The True Blue Laws (1876) p. 311.

50

lot “by God’s providence” fell 011 Manuel Guerrit, “the giant,”
who was sentenced to be hanged. -

Another report runs like this 1° (New York, July 7,
1644) :

Three soldiers tried by court martial for having (acciden-
tally) killed a man, by the discharge of a gun, sentenced to be
shot, but pardoned, “such sentence having been pronounced only
to make impression on them and others.”

An old English, and even general European, custom seems
to have been continued when certain governors pardoned
the first offender convicted after they assumed office.17 The
pardons were granted sometimes under conditions “on his
giving bond to good behavior,18 ‘to be transported to one of
Her Majesty’s plantations in the West Indies and there sold
as a servant for 7 years.’ ” 19 The appearance of British
warships on the coast of Virginia not infrequently offered an
opportunity for reviving the old British custom of making
use of the offender’s energies in fighting the country’s
enemy.20 The privilege of pardon, restricted by professed
general notions of deterrence 21 and upholding the majesty
of the law, sometimes yielded to arguments of utility. An
Indian was to be pardoned “to avoid more bloodshed.” 22
and a white overseer who had killed a slave was pardoned
“because the taking away the life of this man will, in all
probability, stir up the Negro’s to a contempt of their Mas-
ters and Overseers, which may be attended with dangerous
consequences to this Colony.” 23

 

1“ Ibid.

17 Scott, Criminal Law in Colo-axial Virginia, p. 117.

13 Id. at 118.

19 Id. at 119. .

3°“Peter Gofiegon, condemned for negro stealing, and Richard Thompson,
about to be hanged for horse stealing, ‘received his Excellency the Governor's
most gracious Pardon, upon their entering themselves on Board his Majesty’s
ship the Boston * * * then bound for England.’ ” Him. This is a
curious ease of transportation of American criminals to England.

L’1“We hear that Intercessions have also been made to the Governor, in
behalf of some of the other Criminals (two persons had been pardoned being
accessm-ies in felonies) ; but their Crimes being either of a high Nature, or the
Criminals old Ofienders; and his Honour's Clemency having been often abus’d
by hardened wretchcs who had received the Benefit. of his great Lenity, and
instead of making a good Use of it, had return’d to, and repeated their
Wicked Courses, it is no Wonder his Honour has ordered Justice to be exe~
outed on these unhappy deluded Wretches as examples to others; tho’ so
much against his merciful Disposition.” Id. at 118.

22 Id. at 116.

23Id. at 120, 202.

51

We know even of one case in which the old royal example

f not keeping the terms of a general pardon was faithfully
'mitatedfi4 Although we might in this case speak of “rea-
ons of public policy,” we can hardly call such faithlessness

n expression of a real sense of utility.

We might imagine ourselves in the European middle
ages when we read that a certain Edmond Walker, after
conviction of felony and robbery, was pardoned by the

eneral Court, October 8, 1648, “on petition of Rose Alleyn,
he agreeing to marry him.” “5

Pardon concepts in California’s popular tribunals.—Dur-
'ng the California gold rush, society for a short time slipped

ack into primitive folkways. The tribe, here the mining
camp, developed its protective methods, sometimes in con-
‘radiction to the weak and new judicial mechanisms of the
State. We are told of cases where the pardon of the Gov-
ernor was overruled by the rough interference of the mob.
In Sacramento in 1851, “when the Governor reprieved one
of the highwaymen who had been legally convicted and
sentenced to death, the bandit was hanged by popular action
immediately after the lawful execution of two of his com-
panions.” 2“ The reverse phenomenon is still more striking.
There were four executions by the San Francisco Committee
of Vigilance in 1851. In the first two cases the execution
did not take place until after the popular “court” had laid
the final decision before the assembled crowd and had asked
for “an expression of their sentiments.” 27

241d. at 160. There were plant-cutting disturbances in 1682, caused by
the low price of tobacco. “The authorities were seriously alarmed "' * *
all taking part in plant-cutting were declared rebels. The justices of the
peace were commanded to suppress the movement, according to the pro-
visions of the act of 13 Hen. IV, chapter 7, against rioters. The militia
finally restored order, and the question of punishment came up. Chichley,
who was lieutenant-"rovernor, acted with indecision, issuing a general pardon
to those ‘in the field’ * * *” The Governor arrived soon after; four
men were tried, two were hanged. Id. at 159, 160.

25 Id. at 120.

26 Williams, History of the San Francisco Committee of Vigilance of 185],
. 378.

p 27 “While the majority of the committee advocated summary action, * * *
they felt that it was necessary to ascertain whether or not the community at
large would support them in their self-assumed ofiice * * ‘.

“At a quarter before one o’clock Brannan mounted a sand dune near the
place of trial, the crowd closed in about him, and he told them of the
formation of the Committee, the arrest of Jenkins, and his trial for grand
larceny. He recounted the nature of the evidence, the clear proof of guilt,

52

There is no doubt that a serious and considerable oppo-
sition by the people could have prevented the execution. It
would have had the actual weight of a pardon.

It is startling to see how little human nature really
changes; in a wide circuit the development returns, when
certain conditions prevail, to the attitudes of our tribal
ancestry. There is no better proof than the history of
pardon.

CONCLUSION

The history of pardon shows a steady development.
From irrational beginnings—touching of a holy object or
person, decision by lot—it slowly grows into a human insti-
tution, regulated by reasoning and by reasons. Being an
offspring of power in all its diverse manifestations, it re—
sists the application of mere justice and cannot completely
be safeguarded from miscarriage and distortion. Being a
prerogative in that old sense of freest personal discretion,
pardon defies all efforts to be forced into rules.

This freedom from formal ties allowed the prerogative
to be misused and made an object of bargain. On the other
hand this mobile institution has been able to play a far-
reaching role in the development of the criminal law.
We have seen that the law of insanity, of self—defense, of
compulsion and the improved treatment of the juvenile
offender started from the practice of pardoning in cases
where the strict application of the law seemed undesirable.
This eminently creative function of the concept of pardon
has not yet come to an end. The principles of parole and
probation are children of the aging concept, which shrinks
to make way for its new and growing offshoots.

The history of pardons thus teaches one lesson: The pre-
rogative has always been near to absolute power and has

the conviction, and the sentence of death within an hour on the public
square. Then he demanded that his auditors declare whether or not this
action should be approved. The response was a tumultous cry of ‘Yes !’
mingled with cheers and some dissenting ‘Noes' ” Id. at 212.

In the sec0nd case the report reads: “The crowd outside was large but
patient, and heard with attention on account of the trial, resume of the
confession and a report of the sentence. Then the question was put to the
citizens: Would they sustain the action of the Committee? And the vote of
endorsement was ‘almost unanimous.’ ” Id. at 270. A strange change of
condemnation and discharge by two different popular courts is described by
Miss Williams. Id. at 380.

53

been exposed to abuse. At the same time it has been almost
uninterruptedly Within easy reach of. the creative mind of
mankind as a weapon to break the rigidity of law- and
custom and their resistance to progress and reform.
When We weigh the abuses and errors of pardon against
its social benefits, the scale tips definitely in favor of this
old and ever—young institution.

CHAPTER II
WHY PARD ON?

A man has been adjudged guilty of crime. He was given
a fair trial. He had full notice of the charge against him
and an opportunity to present his defense. He had the
benefit of counsel. Everything that could be Said or done
in his defense was said and done. A jury of 12 men unani-
mously found him guilty beyond all reasonable doubt.
He had opportunity to ask for a new trial if there was
any reason to believe the verdict was not sustained by the
evidence. He had a right to appeal to a higher court. If
he felt his Federal constitutional rights had been impaired
he had the right to appeal to the Supreme Court of the
United States.

Why should he now be allowed to appeal from this judg-
ment to the executive, by asking for a pardon?

Why should the executive have this power to set at
naught any judgment of the courts, no matter how fairly
and painstakingly arrived at?

Stated in this way, there seems no justification for such
interference. And undoubtedly pardons have sometimes
been granted for reasons which can hardly be considered
adequate. Sutherland has reported a few such cases.
“One Governor gave as a reason for pardoning criminals
‘he could deny Carrie (his wife) nothing and she could
refuse nothing to anyone else.’ Another Governor, when
a friend sought the pardon of two criminals, offered him
his choice of the two but refused to pardon both, ‘because
that county’s quota was exhausted.’ ” 1

The question is not always as easy as we have presented
it. That there are valid reasons for the exercise of the
pardoning power is acknowledged even by the most critical
investigators. Sutherland admits that the pardon power
has some justification so far as imprisonment is concerned

1Sutherland, Criminology (Philadelphia, 1924) p. 502.

73115—39—von. m 5 (55)

 

56

as long as prison sentences are not made entirely '
terminate.2 We shall demonstrate that the just func
of pardon cannot be restricted to this situation. We a
with the general statement made by Kenny: 3 “The p0
of pardon therefore is one which is indispensable to
wise administration of penal justice.”

Why is it indispensable?

View that pardon is unnecessary and undesirable—S
competent authors have been of the opinion that there
no valid reasons at all to justify the ancient institution
pardon, and have argued that it should be entirely abolis
It has been said that pardon deprives the criminal law
its power to deter from crime; that it leaves valuable
terests of society at the mercy of arbitrary whim; tha
leads to injustice by not being exercised in an equal w
and that it weakens confidence in the impartial hand
of justice without respect of persons.4

Stammler 5 has asked whether there is a general p
ciple of pardon. Can pardon be subject to objective
teria? At first glance we meet a considerable medley
occasions and causes for pardon. Stammler has quoted
autocratic manner of Charles VIII: “Tel est metre plais
He has mentioned the spectators in a Roman circus
could decide by accidental humor whether they wante
save the life of a wounded gladiator. The medieval ha
man had the power to save at will the neck of every te
man of those condemned to death. Stammler in his sea
for a fundamental concept and theory of pardon calls
these arbitrary acts “aberrations,” but it might be that so
of these customs represent relics of past conceptions. T
were “reasonable” and utterly rational in a former soci
They belong to the large group of petrifications which 5
rule the life of society.

The most determined and outspoken opponent of
privilege has been Kant, the philosopher. “The Right

2Id. at 506.

8Kenny, Outlines of Criminal Law (Cambridge, 1936) p. 593.

‘Koestlin, Neil-6 Revision der Gr-undbegm'fie des C'riminalrechts (Tuebin
1845) p. 921.

l’Stammler, The Theory of Justice (New York, 1925) pp. 96, et seq.

57

Pardoning,” he writes,6 “(Jug aggraticmdi) viewed in rela-
tion to, the criminal is the right of mitigating or entirely
remitting his punishment. On the side of the sovereign
this is the most delicate of all rights, as it may be exercised
so as to set forth the splendour of his dignity and yet so as
to do a great wrong by it. It ought not to be exercised in
application to the crimes of the subjects against each other;
for exemption from punishment (impunitas criminis)
would be the greatest wrong that could be done to them.” 7

Not quite as extreme 8 are two other eminent philosophers
of law, Montesquieu and Beccaria. Their theories, too, can-
not be visualized apart from the political and social condi-
tions of their times. The ideal republic they dreamed of was
people with virtuous citizens, and freedom could not but
promote knowledge and justice. Thus Montesquieu could
say in his chapter about the clemency of the prince: “La:
elemenee est la qualité distinctive des monargues. Dams la
republigue, on on a pour principe la vertu, elle est mains
necessaire. Dams l’e’tat despotique, ou reigne la cminte,
elle est mains en usage, pareegu’il faut cantenir les grands
par des ewemples de severite.” (Clemency is the distinctive
attribute of monarchs. It is less needed in a republic where
virtue reigns. In a despotic State which is governed by
terror it is less in usage, since the grandees of the nation
have to be kept in check by instances of severity.) He adds
a suggestive remark: “In monarchies, where the idea of
honor prevails, which often demands what the law forbids,
pardon is more necessary.” 9 What Montesquieu indicates
here is the possibility of two conflicting social forces which
we shall discuss later on.

6Kant, PhiZOSOphy of Law (translated by W. Hastie) (Edinburgh, 1887)
pp. 204, 205.

7 “It is only on occasion of some form of treason (cr'imen laesae majestatis)
as a lesion against himself, that the Sovereign should make use of this Right.
And it should not be exercised even in this connection if the safety of the
people would be endangered by remitting such punishment. This right is
the only one which properly deserves the name of a ‘Right of Majesty.’ ”
Kant, ibid.

3 Stammler op. cit. supra note 5, at 98 has justly explained that the theoreti-
cal opposition raised against pardon by many authors of the eighteenth cen-
tury, including Kant, can only be accounted for historically by the frequent
abuse of a power holding itself aloof from all considerations of justice.

°Montesquieu de l’Eszm’t des Lois, VII, 21.

58

Beccar-ia likewise started from the idea of a perfect or
nal justice. He believed such complete perfection att
able. “As punishments become more mild,” he has sa

“clemency and pardon are less necessary. Happy the na

in which they will be considered as dangerous. Clem
which has often been deemed a sufiicient substitute for e

other virtue in sovereigns, should be excluded in a pe

legislation, where punishments are mild, and the proceed
in criminal cases regular and expeditious. This truth
appear cruel to those who live in countries where, from
absurdity of laws and the severity of punishments, par
and the clemency of the prince are necessary. It is in
one of the noblest prerogatives of the throne, but at the s
time a tacit disapprobation of the laws.11 Clemency
virtue which belongs to the legislator and not to the exec
of the laws; a virtue which ought to shine in the Code,
not in private judgment.” Beccaria thus believed that
the appearance of a new Solon the privilege of pa
would become useless.

Pardon as a means to restore the just lam—The erro
these great but utopian thinkers is easily demonstr
Beccaria’s demand: “Let then the executors of the law
inexorable, but let the legislator be tender, indulgent,
humane,” starts from the supposition that it is possibl
enact laws which meet in an ideal and universal way e
conceivable situation of life.

We approach one of the fundamental problems in
philosophy of law when we ask whether justice cal
done by an effort of legislation alone, or whether other
ancing and compensating mechanisms have to be calle
help bring about a satisfactory result.

1° Beccaria, An Essay on Crimes and P-unishments (Albany, 1872) p

et seq.

11 Bentham has a similar view. “What punishment lacks in point 0

‘tainty must be made up in severity. The less certain penalties are, the

severe must they be; the more certain they are, the less severe need the
' ‘ “ What then, shall we say of a power, created for the very pu
of rendering them uncertain? Such, however, is the direct consequence

;power to pardon.” Bentham’s Theory of Legislation (translated by Atk

London, 1914), p. 171. Certainly pardon has not been created for that p

. alone.

59

In a case related by Cummings and McFarland}2 an in-
urrection had occurred in March 1799 in Pennsylvania.
he jury brought in a verdict of guilt. “President Adams
'evealed concern whether actual treason had been committed
and asked opinions. Lee wrote from Alexandria * * "‘
An example should be made, and the law should be per-
itted to take its ‘due and impartial course.’ ”

Is the “due and impartial course” of the law the same as
administering justice? Apparently not, since other factors
intervene, and there were just these conditions which the
President had in mind. He appears to have doubted
whether the due and impartial course of law would benefit
the peaceful coherence of the State.

Obviously the criminal law cannot be a suitable and
efficacious working instruction for all possible situations.
Conditions of social and political life change. Sometimes
they change suddenly and radically, and legal rules cease
to fit the situations. Since every law is strengthened by
length of time and since the time-honored validity of a rule
is an important factor in its enforcement, the practice of all
nations is averse to frequent alterations. Hence criminal
law is often behind the demands of the time, is “unjust.”
After a while the discrepancy is felt and while the law it-
self may remain unchanged, compensatory contrivances are
introduced. There is no better instance than the gradual
invalidation of the old law of blood-revenge by the custom
of sanctuaries and similar institutions.13 The law had be-
come “unjust.” It was not abolished; it was pulled down
by degrees through the introduction of rules which slowly
weaned the people from the old law.

There are many ways to bring law and justice into
harmony, and only the most legalistic minds will complain
that justice is obtained sometimes in opposition to rigid

12 Cummings and McFarland, Federal Justice (New York, 1937) p. 48.

13 Stress has been laid in eh. I on the role of pardon as an obvious develop-
mental stimulus in the history of criminal law. One of the many ways to
modify conditions which have become unsatisfactory and even obnoxious was
the right of sanctuary. “The whole idea of sanctuary,” says Kohler (Philoso-
phy of Law, New York, 1921, p. 274) “rests on the opposition of the legal!
order and peaceable regulation. * * * Sanctuary is an institute of peace-7
able regulation which is at variance with the carrying out of what the law
permits or commands; and thus leads out and beyond the latter, powerful
though it be.”

60

law, as in acquittals of juries 1“ and the restrictive interpre-
tation of obsolete laws. The most powerful of these devices
is the application of the privilege of pardon.

The technique of our law is such that it cannot accom-
modate itself to all the perplexities which occur daily in
real life. The only thing a criminal code can do is to lay
down general patterns of behavior which as a rule are con-
sidered anti-social. But these abstractions will never be
able to include actions committed from proper motives, or
will sometimes fail to cover deeds of a highly immoral or
dangerous character.

This contradiction has not been left unnoticed and some
of our greatest legal philosophers have attempted to over-
come the difficulty by going back to rules which were be-
lieved to be prior and superior to positive law. Three
thinkers of the seventeenth century, Grotius, Hobbes, and
Pufendorf, went back either to the basic attributes of
human nature or to the basic needs of society, and invented
the so—called “law of nature.”

Grotius 15 assumed as the fundamental quality of man
the “appetitus societatz's,” the innate urge to form a society
and to live in a society.

Hobbes 1“ was more skeptical. His pessimism regarded
as the fundamental trait of human nature man’s fear of
man. Since his desire for self-preservation can only be
efiected by a war of all against all (bellum omnium contra,
omnes) he is driven by nature to seek peace where he can
and to fight when peace cannot be attained. “Prima ct
fundamentalis Zea: naturae est, guaerendam esse paccm, ubz’
haberi potest; ubz’ non potest, g-uaerenda 6886 MM auxiléa.”

Pufendorf and, following him, the eminent Thomasius,
set happiness as the principal aim of human activity and

1“‘It is is reported with increasing frequency of our western neighbors,
a people with an excellent syStem of justice, that their courts of law acquit
defendants who find it necessary, under pressure of need, to transgress the
law in behalf of themselves or of their children, even though there was no
condition .of necessity according to the strict letter of the criminal law.
And we know that the jury courts in many places have shOWn again and
again a tendency to avoid the roundabout way of first maintaining the
positive law by a verdict of condemnation, and then bringing about a
pardon by means of another organ.” Stammler, op. cit. supra note 5, at 101.

15 Id. at 74.

10 Id. at 75.

61

assumed that “happiness of the individual is impossible
without general happiness, and conversely the latter is im-
possible without the happiness of the individual.” 17

All these conflicting attitudes and the theoretical at-
tempts to bring about an equitable solution emerge from
the fact that there is at times “unjust” positive law. “Nat-
ural law” looks to that unattained ideal of justice which
is only incompletely realized by the positive law. It is a
question to be pondered, whether society is better furthered
by adhering to the principle of justice or to strict positive
law.18

Unjust pardon—Before we proceed, a most interesting
and little discussed problem should be inserted here.
Granting that the positive law may sometimes be “unjust,”
cannot pardon be unjust, too?

The answer must be in the affirmative. The juridical
principle of equality of rights applies to the exercise of
pardon. To state it briefly: No innocent man should be
pardoned without his innocence being clearly acknowledged
in a suitable form,19 and similar cases should be handled
similarly in the exercise of pardon. The King of Eng-
land was well advised in refusing the pardon of the famous
Dr. Dodd, who was hanged in 1777 for forgery. The King
was inflexible because shortly before, two wine merchants,
Daniel and Robert Perreau, had been hanged for a similar
crime. “If Dr. Dodd is pardoned,” the King said, “then
the Perreaus were murdered.” 2°

17 Ibid. _

18Attorney General Wirt in one case of pardon advised President
Monroe: “Men readily yield their names in support of an application for
mercy for the sound exercise of which they are not responsible ‘ ‘ ‘
but reflecting men know that in a country in which there exists no authority
to preserve the order and purity of society, save that of the laws, the laws
should be vigilantly and strictly enforced, or they lose all their eflicacy, and
the social company is dissolved.” Cummings and McFarland, op. cit. supra
note 12, at 168.

19In their book, Federal Justice (D. 208) Cummings and McFarland nar-
rate the following case: “President Johnson, on Christmas Day, 1868, par-
doned all who had participated in the Confederacy. The indictments against
Davis were dismiSSed, and after 2 years imprisonment and 19 months on bail
he was finally discharged. His insistent requests for the vindication of a
trial were ignored. The case in this reSpect resembled hundreds of other
cases.”

2‘°W. Thornbury, Old and New London (London, 1889) vol. II, p. 450.

62

In the noted Boorn case of 1819,21 the two brot
Jesse and Stephen, were sentenced to hang on January
1820. After a petition for pardon‘ had been submitte
the Legislature of Vermont, Jesse’s sentence was comm
to life imprisonment. Stephen’s plea was denied. Hap
the supposed victim was found alive, and the innocenc
both brothers proved. It had not only been a wrong
tence, but an unjust pardon as well. There are even 0
where the odious misuse of the pardon privilege has
lently shocked public opinion and has been regarded c
conscious act of tyranny and injustice, although form
there was no transgressing the limits of the sovereign ri

“James II succeeded Charles II in February 1685. In
following summer the Duke of Monmouth, the eldest of
many illegitimate sons of Charles II and a leader who
almost idolized by the populace, laid claim to the cro
alleging the legitimacy of his birth and that he was
right of blood King of England. He organized an ext
sive insurrection in the west of England and was proclaii
king at Taunton, where, on his arrival, he was presented,
a train of 26 young girls, with an embroidered banner
a Bible.” 22

A bill of attainder for treason was passed against 11'
he was defeated, his army routed, and he was captured
executed on Tower Hill. A bloody revenge against
adherents followed, and the most brutal atrocities were c
mitted.

“An atonement having been made with blood to
satisfaction of the royal revenge, the king in the follow‘
spring (March 15, 1686) granted, by proclamation, a g
eral pardon, with a few exceptions * * *; but amo
the exceptions were the young girls of Taunton who p
sented the banner and the Bible to Monmouth * *
‘Well does Macauley say, that the cruelty of James II \
not more odious than his mercy, or, rather, his mercy a

21Borchard, Convicting the Innocent, p. 19. “To set the brothers free
due process of law, the case was reopened, they were allowed to p1
again, and the State’s attorney entered a nolle prosequl. In 1820 t
petitioned the Legislature for compensation and were refused.” Id. at 20,
228 Am. Law Reg. 530.

63

his cruelty were such that each reflects infamy on the
other.’ ” 23

A pardon must be finally called “unjust” when, by unfair
means, public feeling is stirred up and pressure is exercised
on the Governor and the State board of pardons to have a
guilty and dangerous man reprieved and his punishment
commuted.

Such methods and such unjust result are illustrated by
the Billick poison case which occurred in Chicago in 1908.
A Father J. O’Callaghan, at this time head of the Paulist
brotherhood in Chicago, visited by accident the doomed
murderer in his cell. He began to be interested, and his
further proceedings are described as follows:

“Suddenly the Paulist priest burst upon the city of Chi-
cago with the fiery announcement that Billick was an in-
nocent man, that the evidence against him had been in part
perjured, and that a terrible miscarriage of justice had taken
place. The city received the first blast with the character-
istic indifference of great communities, but Father O’Calla-
ghan was a determined, forceful, and convinced man. He
went to men of influence belonging to his creed and laid
before them his views and evidence. He preached sermons
of the most inflammatory kind, and charged the public
oflicials with an attempt to railroad Billick. His attacks on
State’s Attorney Healey were of the fiercest and most direct
kind, for he even went so far as to pronounce a curse against
the baflled prosecutor. * * * Finally * * * the
Governor and the State board of pardons came to the con-
clusion that ‘because of a considerable public sentiment, and
a feeling of doubt in some quarters,’ Billick was to be saved
from the rope,” 24 an apparently unjust act of pardon.

There are other powers, not vested in the executive, but
in the prosecuting attorney. It has been held that there are
circumstances in which it is plainly discretionary with him
to prosecute or not, though the law and the facts will sustain
the proceedings.25 This power amounts not in law, but in
fact, to a limited faculty to grant a pardon. We shall meet
this power again when we discuss the granting of immu-

nIbid.

9‘ Smith, Famous Poison Mysteries (1927) pp. 139 et seq.
”Bishop, Criminal Procedure (Boston, 1880) vol. I, paragraph 290.

64

nity for turning State’s evidence. This power, which is
much more restricted in European criminal procedures, is
only justified by a “just” exercise. “A law may be techni-
cally violated under circumstances rendering the punish-
ment of the offender not beneficial to the public; when there-
fore he should not be punished.” 2"

Pardon and technical violations of law—This brings us
back to the legal situation where justice is pursued by a
combined effort of law and pardon. Sometimes technicali-
ties of the law produce a result which does not correspond
to the feeling of justice of the population. A few of them
might be mentioned briefly. A principal in the second de-
gree, for example, shares the legal fate of the real perpetra-
tor. An aider and abettor is liable for such crimes com-
mitted by the principal in the first degree as were done in
execution of their common purpose.27 This rule is based
on purposes of deterrence and does not consider the actual
degree of participation and of guilt.28 In many insurrec-
tions the minor participants are caught, whereas the lead-
ers succeed in escapinov. Leaders in such movements are
certainly “super-principals”, when we look at the question
of the moral and legal responsibility, but in the eyes of the
law they are often punishable only as accessories. Cer-
tainly they cannot be punished more severely than the sub-
ordinates who are induced by them to commit the actual
deeds. Justice, therefore, is to be done by lowering the
penalty incurred by means of the privilege of pardon.29

Often the courts extend the original meaning of a rule.
Kenny has demonstrated the extraordinary extension of the
scope of high treason, “which the judges of the seventeenth
and eighteenth centuries (from political sagacity rather than

 

“Id. paragraph 287.

2”Kenny, op. cit. supra note 3, at 98, 99.

28See the Ohio case quoted by Kenny (id. at 99). “A man who in-
vited a shopkeeper to accompany him to a convivial gathering, and took care
to keep him agreeably occupied at it while some accomplices broke into
his shOp, was held to have been giving, even at the moment of the burglary,
a sufficiently eflective assistance in it to render him a principal in the second
degree.”

2’ Such a case is related by Cummings and McFarland (op. cit. supra note 12,
at 45). “Justice Paterson sentenced Vigol and Mitchell to be hanged. Neither
had been a leader in the insurrection. The leaders, wisely, either had escaped
custody or signed the submission before the militia arrived. * " ‘ Fi-
nally both were pardoned by the President.”

65

from logical necessity) placed upon the simple language of
the ancient Parliament of Edward III.” 3° He has em-
phasized that even so commonplace an event as hiring a
boat at a riverside wharf may amount to an “open deed” or
an “overt act” in the law of high treason,31 and has pre-
sented other instances of violently artificial interpretations
“almost setting the statute of Edward aside by their forced
constructions.” 32

Pardon and transition of power.—The criminal law does
not consist only of rules indispensable for the maintenance
of every civilized society. Penal sanctions are sometimes
used as weapons in the internal struggle for political
power. This battle, which is a purely political or historical
phenomenon and has nothing to do with wrong or right,
borrows the means, the abstractions and even the moral
formulae and emotions from the penal law. The opponent
to a certain political or social regime is a “criminal”, and
often he is much more heavily punished for having opposed
the momentary rulers than for having committed a real
crime.

then such a regime crumbles, although the rules of the
ordinary criminal law remain, these political regulations
thereupon become void in the sense that they do not apply
anymore to the victorious party, but are turned against the
defeated. The victor changes from the role of an object to
that of subject and dispenser of criminal legislation. He
shakes off these measures of political struggle, which have
assumed the form of criminal sentences. The outward
forms of the criminal law have been misused; a restoration
of all that has been detrimental takes place, and there is no
more radical and swifter remedy than pardon or amnesty.33

Conflicting behavior patterns and the disbanding inter.-
ference of pardon—Bentham, who, following the trend of
his times, had called pardon under certain circumstances “a

3° Kenny, op. cit. supra note 3, at 312.

81Id. at 308.

821d. at 315, 316.

3sit is less understandable that European amnesties of recent years have
included genuine common criminals in the acts of general pardon, because
they were adherents to a certain victorious political party. These are “unjust”
pardons in the sense discussed above, and are probably in the long run unwise.

66

veritable betrayal of trust,34 did not extend his objection
cases “where punishment would do more harm t
good,” 35 in contrast to the purposeless pardons, result
from the favor or the easy temper of the soverei
Good laws 37 were in his opinion able to arrive at an i
accomplishment of justice.

Neither he nor Kant, nor Beccaria, thought of the l
and devious path which leads from the wording and
spirit of law to its application to human beings and com
social situations. They did not think either of the fact t.
human society is not ruled by one single binding force,
by many such agencies. Criminal law is but one of th
and not always the strongest of them.

We are reminded by Montesquieu that there are many
suring and restraining forces (such as the idea of hon
and we know that the constitutional law of ancient R
Ehad given these moral obligations a personal exponent
a quasi-legal defender in the form of one of its highest
cials, the Censor.

These customary rules of conduct can and do conflict
the rules of the criminal law, and it has always been a po
lar topic of literature to paint such conflicting situati
The family group and many other forms of firm or 10
combination, as love, friendship, the membership of
same profession or same social stratum, have their own r
of conduct, and this mutual support might bring abou
more or less serious infringement. of the law. By supply

3* Bentham’s Theory of Legislation (translated by Atkinson, London, 1
vol. II, p. 171.

‘5 “In cases where punishment would do more harm than good, as in cer
cases of sedition, conspiracy, or scenes of public disorder, the power
pardoning is not merely useful—it is really necessary. Such cases b
anticipated and expressly provided for in a good legislative system, the par
when applied, would be an execution rather than a violation of the la
Id. at 172.

3° “But as for motiveless pardons * * “ they condemn alike the l
and the government; the government, of cruelty to the public; the laws
cruelty to individuals.” Id. at 172.

"“We thus see that, if the laws are too severe, the right of grantin
pardon is a most useful corrective; but this corrective is in itself an
Make good laws, and there will be no need for a magic wand that posse
the power of anulment. If the punishment be necessary, it ought
to be remitted; if it be unnecessary, it should never be imposed.” Id. at

 

, ' .r , .' ,-

 

67

a friend or a member of his group 38 with the means of
escape or by destroying dangerous evidence, the individual
may conform to the demands of his group morals, but at
the same time may in the eyes of the law make himself an
accessory after the fact. Even merely passive connivance,
in treason for example, makes him guilty of misprision of
treason.39

Our criminal law recognizes such morals to a certain de-
gree,40 but it cannot offer more than a minimum of conces-
sions; the more difficult cases are left to the exercise of
pardon. Sometimes single social groups have kept remnants
of behavior-patterns which are enforced by the group, but
are punishable by law. The European custom of dueling
was long an absolute and indispensable duty to an officer or-
a university student, but at the same time it was prohibitedi
by law. The members of such a group seemed to stand be-
tween the devil and the deep, but they nearly always decided
in favor of their group code, since the group was inexorable,
but the State possessed and applied the privilege of pardon.

Racial minorities 41 of a lower or different cultural stand-

ard may preserve attitudes which were their legal rules in

si‘lThe new party-states of Europe lay more stress on the moral obligations
to that party than to the state; and criminality originating from loyalty to
the party is pardoned by repeated amnesties. This method is rather unfit,
since genuine criminality is made safe by joining the party. The great balanc-
ing measure of pardon does not only grow blunt, but creates inequality and
disbalance. They are “unjust” amnesties.

39 “According to the older authorities, at least, a wife could not be an acces-
sory after the fact to her husband‘s felony; but the husband could be accessory
to his wife and, indeed, no other relationship except that of wife carried with
it any exemption. Blackstone stated the reason to be that the husband was
presumed to have coerced the wife; but Hawkins stated that the indulgence
was granted the wife in consideration of the duty and love she owes her
husband. Either may be an accessory before the fact to the other as a princi-
pal.” May’s Criminal Law (4th ed., by Sears and Weihofen, 1938) § 71.

“So, husband and wife cannot be witnesses for or against each other. “It
seems agreed, that husband and wife, being as one and the same person in
affection and interest, can no more give evidence for one another in any case
whatsoever than for themselves.” Hawkins, Pleas of the Crown, vol. II, p. 600.

“But it does not seem to be clearly settled, whether a wife may be admitted
as a witness against her husband in high treason.” Id. at 601. In European
criminal procedures (Germany, France, Italy), all relatives can refuse to be
witnesses against one another, and many discussions have originated as to
whether stepchildren, adopted children, and illegitimate relatives are entitled
to the exemption or not.

41 The resistance and the moral protest of Small groups might not be im-
portant. As soon as the opposition gets hold of great masses, the enforcement
of law is endangered. Feuerbach has advanced the noteworthy thought
(quoted by Koestlin, op. cit. supra note 4, at 921), that sometimes the full

68

former times, but are considered crimes by the new code of
laws which the conquerors or the importers (as in the case
of the colored race) have imposed on'them. To punish them
in certain cases, according to our behavior-patterns, would
be absolutely legal, but scarcely just to them.

Pardon on the ground of innocence—There must cer-
tainly be a reason why “up to the present time, Anglo-
American public law has been peculiarly indifferent to the
plight of the individual injured by the defective or tortious
operation of the government machine.” 42 There must be
a reason why the reparation of miscarriages of justice in
England and in the United States has been-left mainly
to the exercise of the power of pardon and not to regular
judicial proceedings, as in all great European nations.

This “non-intervention” policy is probably based on the
same venerable idea which induced the first French Parlia-
ment during the Great Revolution to abolish pardon and
all the other kinds of restitutive proceedings which had
been fairly well developed during the reign of the absolute
French monarchs. From now on the people were to rule
and to judge and the people could not be wrong. It was
sovereign and not only omnipotent, but omniscient. No
corrective mechanisms should be preserved, for correction
was no longer needed. In England and the United States
there has always existed since ancient times a pronounced
aversion to interfere by new judicial proceedings with the
res judicata, and the English disinclination appears to be
even stronger than the American.

It has been maintained,43 that the much discussed power
of executive clemency must be upheld as long as miscar-
riages of justice persist; but the writer adds that “with
the continuous development of adequate systems of parole,
there should be a diminishing number of occasions for its
use.” We cannot agree at all that. the innocent man can
best be handled by the parole system, since the innocent

severity of the law threatens to pass over into brutality. This creates moral
repulsion or indifference toward the law. And from this moment on, says
Feuerbach, the exercise of pardon becomes indispensable to reestablish the
deterring force of the law.

uBorchard, Convicting the Innocent (New Haven, 1932) p. 376.

“Annals of the American Academy of Political and Social Sciences, vol.
167, pp. 102, 103.

69

man will not demonstrate that sense of repentance,“ which
is considered one of the safest symptoms of reformation
and releasibility. In a famous German murder case, a Dr.
Hau was released from prison after having served 10
years for the murder of his mother-in-law; the special
parole condition imposed on him was that he promise not
to try to bring about a new trial. He had always insisted
on his innocence, and after being released, he wrote a book
concerning the case, his sentence and his penitentiary life.
His parole was thereupon revoked and his arrest ordered;
but before he could be apprehended Hau took poison.

Under these circumstances, it is impossible to say whether
this man was really innocent or not. In any case the terms
of his release on parole were most unfair, and the whole
release on parole an inadequate solution of doubts concern-
ing his guilt. An innocent man cannot be expected to be a
“good” prisoner, and if released conditionally on half-
measures, will not show “reformation,” an attitude which
presumes a confession of former wickedness. _’ Before en-
tering into the legal aspects of the problem, the question
should be raised whether the scope of the problem justifies
an extensive discussion.

Understandably there has always been a strong reluctance
to admit that the State which maintains right and justice,
can commit mistakes and that the machinery of law enforce-
ment sometimes violates its own rules. A distinction should
be made. ‘Whenever one succeeds in winning the confidence
of criminals they will persist in declaring that they have
been sentenced innocently, but they will admit at the same
time that on other occasions they have been guilty of other
crimes of which they were not detected or convicted. Are we
consequently to discriminate between two forms of inno-
cence: Formal innocence in a single case,45 and general

 

44 Borchard’s curious case (op. cit. supra note 42, at 168, 169) teaches a grim
lesson: “When aflidavits relating these facts (admission of the crime by the real
murderer) were presented to the Board of Pardons, John Murchison and
Cleo Staten were at once released on permanent parole, July 7, 1926. Staten
on March 12, 1927, was granted a full pardon, but unfortunately never
received it, for he died just a few days before it was issued. A pardon was
denied to Murchison by Gov. Bibb Graves, though Murchison was ad-
mittedly innocent, because of a record of bad conduct in prison.”

‘5 Sometimes pardon is granted because the wrong done on a previous occa-
sion can no longer be restored. Two men had spent 5 months in the Ohio

70

guiltlessness, not limited to an isolated action, but applying
to the whole personality? 4" From the point of view of
formal and casual innocence, miscarriages are probably a
problem of considerable extent. We think that it shrinks
considerably when we limit ourselves to the innocent
personality.

Professor Borchard has assembled 65 American cases of
completely innocent people, as to whom mistakes in the ad-
ministration of justice had occurred. He has endeavored to
divide the cases into groups according to the origin and the
peculiarity of the error which led to the faulty judicial
result. In order to know whether the privilege. of pardon is
the right means of restoring justice, we should glance for a
moment at these conditions.

The major source of error in Borchard’s collection was
mistaken identification ‘7 by the victim of the crime. This
kind of mistake was almost solely responsible for nearly
half of the cases collected. This source of error is probably
not as frequent as it seems, but the mistake is frequently
uncovered and very simply proved. Criminology has fortu-
nately started to cast some healthy doubts on the testimony
of children, women and men, when frightened, excited, or
under some psychic shock. In 13 of Borchard’s cases 48 no
crime at all wascommitted, and in 3 other cases the com«
mission of any crime was doubtful. These were, of course,
all cases of supposed murder, where the supposed victim had
merely disappeared. Such cases are much less possible in
European countries, smaller in area than our own and with
much more complete police records for all persons, making

penitentiary, on a life sentence. for a murder committed by another. In view
of their established innocence the fines in liquor cases were suspended for both
as a form of restitution. Id, at 162.

4“ Sometimes the personality is correctly judged, but the action in question
is mistaken. The man is legally innocent, but psychologically not guiltless.
“Adolf Beck was what would be described today as a promoter. principally
of questionable mining prOperties. Never with a large amount of money in his
possession for any length of time, his creditors suffered, and his character,
painted by witnesses at his trials, was not entirely enviable.” Id. at
9. Adolf Beck was the famous victim of an English miscarriage of
justice, which plays a great role in English legal history, since this flaarant
mistake had the result of inducing Parliament to establish the Couijt of
Criminal Appeal.

47 Id. at XIII.

‘3 Id at XIV.

71

it almost impossible for a person to “disappear” into the
mass of the population.

Erroneous convictions on circumstantial evidence exclu-
sively, that is in the absence of identification and perjury,
were recorded 11 times.“

Cases of circumstantial evidence into which entered a mis-
taken identification were 15 in number; cases of circumstan-
tial evidence in which perjury was an ingredient, were 11;
cases in which the perjury of prosecuting or other witnesses
was the main factor amounted to 15.‘50

In several cases, illegally obtained confessions from the
accused constituted a material factor in their conviction, and
these occasions are especially crucial concerning the ques-
tion of compensation. In a confession, as in a crime, a
mental as well as the physical element is to be considered.
Actés non facit mum m’sz’ mews sit red. Duress per minds
might not be permitted in all kinds of crimes.51 But it
will excuse a confession, when a prisoner under pain of
death, “or of some physical injury falling little short of
death,” 52 was forced to sign a document admitting a crime,
especially when he desisted at the earliest possible oppor-
tunity.53 These rules have not always been applied to con-
fessions obtained by compulsion. A court practice, rejecting
such confessions, and a practice of the executive or the
legislature, granting indemnities in such cases without fall-
ing back on a fictitious theory of so-called contribution of
the prisoner to his conviction 5“ would help considerably
to reduce third-degree methods.

”Ibid.

50Ibid.

51Kenny, Outlines of the Criminal Law (14th ed., 1936), p. 84: “It cer-
tainly will not excuse murder.” It would in French, German, and Italian law.

52 Ibid.

531d. at 85. “Moreover, according to Sir James Stephen, this defense is
admissible only where the prisoner has been threatened by a plurality of
persons.”

64The Wisconsin case of John A. Johnson, 1911, is most instruetive in
this regard. Johnson had given a written statement how he committed the
murder of a little girl. During the trial he told that third-degree had been
used on him by the police and a private detective. “It appears that the
officers had learned that on one occasion Johnson had seen a Negro lynched—
strung up with a rope, riddled by bullets, cut down, and stabbed. This had
made a deep impression on his unstable mind, and the mention of it made
Johnson cringe. Johnson told ‘ * * that the officers informed him
that there was a mob outside the jail just waiting to get at him. In this

7 3115—39—VOL. III—6

72

Public opinion is often to blame for miscarriages of jus-
tice. In 14 of the cases presented 1n Borchard’s collection,‘55
“in which the frightful mistake committed might have been
avoidable, public opinion was excited by the crime and
moved by revenge to demand its sacrifice, a demand to which
prosecutors and juries 5" are not impervious.”

Overlooking all these causes of judicial errors,57 we may
say that in a few cases, mainly in people of inferior intelli-
gence,58 we are permitted to speak of negligence or clumsi-
ness on their part; but mostly the State, its officers, public
opinion, and its representatives have been the cause of pro-
ducing the miscarriage of justice.

Ways to correct miscarriages of justice—Assuming that
judicial errors are a social phenomenon to a certain extent,
the question arises how to redress them. ‘

It is a strange contradiction found in the history of crim-
inal procedure that the absolute monarchs of the seven-
teenth and eighteenth centuries were much less reluctant
to quash a criminal sentence than the democracies which
originated with the close of the eighteenth century. The

 

ruse, Sleuth Boyer of the Burns Agency took a prominent part. He said that
he was warned to keep away from the jail windows, because men were on
nearby buildings waiting for a chance to get a shot at him. Johnson said
that he was livid with fear of being lynched, and, when Boyer said that he
could escape lynching by making a confession, which Boyer helped to prepare,
that he availed himself of what seemed to him his one chance of getting
safely into the Waupun penitentiary before the mob could get him and tear
him to pieces.” Borchard, Con'victing the Innocent, pp. 116, 117.

Ten years later the real perpetrator was detected and Johnson’s attorney
applied for compensation under the Wisconsin statute of 1913. The State
board administering the statute denied Johnson’s claim on December 5, 1922,
on the ground that he had contributed to his conviction and imprisonment,
and therefore he was excluded from the benefits of the statute. Id., p. 120.
Borchard quotes (p. XVIII) the deductions of State’s Attorney Homer S.
Cummings in the Connecticut case of Israel, who, under pressure, confessed
the murder of a priest.

55Id. at XVIII.

55 We could add: judges.

57 Very few cases of innocent people who have been executed are known;
the reason is that it is extremely diflicult to prove the innocence of a man
who is dead and can no longer assist the investigation. The living prisoner,
when innocent, is pitied, and sometimes the real perpetrator confesses, to
give him his liberty again. The executed man is dead, he cannot be helped
any more, and exactly this grave outcome of an execution prevents the
really guilty from coming forward with a confession. Besides the procedure
is extremely difficult when a dead man becomes the subject of judicial
proceedings.

“Mostly this low intelligence is combined with other impediments: Being
an immigrant, a negro, or being burdened with previous convictions, etc.

73

Assemble Constituante abolished the procedure of criminal
appeal which had been introduced and developed by the
French kings, as well as the privilege of pardon.‘59 The
representatives of the French people, eager for reforms and
an era of justice, believed honestly that verdict by juries
sufliced to exclude every possibility of error.60

England had no method Whatever for questioning the
decision of a jury on matters of fact till 1907. The first edi-
tion of Stephen’s History of the Criminal Law of England,
published in 1883, contains an elaborate discussion on the
problem and a vivid complaint that up to that time a man
had to be pardoned on the ground of innocence.61 Stephen
did not so much deplore the fact that an innocent man had
been sentenced as he did the wrong inference that a remis-
sion of guilt had to be conceded to a guiltless man, and it
was this miscarriage of logic that disturbed the great
lawyer’s mind.62

Since 1907 things have changed somewhat, and the Court
of Criminal Appeal Act provides that any person convicted
on indictment may appeal to the Court of Criminal Appeal,
as of right, on a legal question and, with the leave of the
appellate court or upon the certificate of the trial judge, on
any question of fact or on any other ground which appears
to the court to be suflicient.63 It is obvious that requiring
leave of the appellate court or the certificate of the trial

59 It was reestablished on May 13, 1793.

a°The whole development has been discussed at length by von Hentig.
W-iederaufnahmerecht (Heidelberg, 1932) pp. 8-11.

61 “No provision whatever is made for questioning the decision of a jury on
matters of fact. However satisfactory such a verdict may be, whatever facts
may be discovered after the trial, which if known at the trial would have
altered the result, no means are at present provided by law by which a verdict
can be reversed. All that can be done in such a case is to apply to the
Queen through the Secretary of State for the home department for a pardon
for the person supposed to have been wrongly convicted." Stephen, History of
the Criminal Law of England, v01. 1, pp. 312, 313.

”Ibid. “To pardon a man on the ground of his innocence is in itself, to say
the least, an exceedingly clumsy mode of procedure.”

63 Borchard, op. cit. supra note 54, at XXIII. “The statute further provides:
The Court of Criminal Appeal on any such appeal against conviction shall al-
low the appeal, if they think that the verdict of the jury should be set aside on
the ground that it is unreasonable or cannot be supported having regard to the
evidence, or that the judgment of the court before whom the appellant was con-
victed should be set aside on the ground of a wrong decision of any question of
law or that on any ground there was a miscarriage of justice, and in any
other case shall dismiss the appeal.”

74

judge erects a formidable barrier against such appeals,“ so
that there is still much space left for the exercise of pardon
in cases of innocence. ‘

In nearly all American States, the appellate court can
reverse a conviction solely for errors of law.65 “They are
bound by the jury’s findings of fact, however wrong they
may consider the conclusion.” 6“ And Borchard con-
cludes: 6" “A petition for executive clemency becomes the
only available remedy,” and his book gives numerous in-
stances to show that, except for the intervention of pardon,
very few cases of miscarriage of justice would have been
solved satisfactorily. As soon as other powers intervene, as
for example in the case of compensation, proceedings slow
down and arrive at no or a negative decision.88

‘4 It was provided by a Draft Code, prepared by Stephen and introduced into
Parliament by Sir John Holker in 1878, that the Secretary of State should
have power to give leave to the person convicted to apply to the Court of
Appeal for a new trial, whenever circumstances throwing doubt on the pro-
priety of a conviction were discovered.

This enactment was not thought satisfactory “upon the fullest consideration
of the subject” by Stephen (op. cit. supra note 61, vol. I, p. 316), since in his
opinion the Secretary of State ought to have the right of directing a new trial
on his own undivided responsibility (rid., p. 317). The law of 1907 did not go
as far as that, retained the leave of the appellate court or the certificate of the
trial judge and left therefore ample room to surmount these formal limitations.

“5 Borchard, op. cit. supra note 54, at XXI.

‘36 Id. at XXII. New York and New Jersey make exceptions in capital cases.

67Id. at XXII.

68“On January 21, 1853, Senator Kurtz of San Diego presented to the Sen-
ate of California the petition of Thomas Berdue for reimbursement of the
$4,000 which it was said he had expended in his fight to prove his innocence.
The petition was referred to the Committee on the Judiciary, of which Sena-
tor J. W. Ralston was the chairman. The Committee recommended that the
petition be refused for the following reasons:

“To grant the prayer of the petitioner would establish a precedent which,
if carried out in all cases of the kind, would more than exhaust the entire
revenue of the State. We know of no legislative precedent for such appropria-
tion. The most that has been done, was to refund fines illegally collected
from innocent parties, leaving them responsible for their own expenses.

“In society it too often happens that the innocent are wrongfully accused
of crime. This is their misfortune, and Government has no power to relieve
them. It is a part of the price each individual may be called on to pay for
the protection which the laws give. He should rejoice that the laws have
afforded that protection to him when wrongfully accused, rather than seek
remuneration for his expenses from the government whose justice has pro-
tected him from ignominious death.”

These strange arguments, related by Borchard (op. cit. supra. note 54, at pp.
274, 275), and already criticized by H. H. Bancroft, would certainly not apply
in case an innocent had been executed. After a grievious case of miscarriage of
Justice, in which a baker had been innocently executed, the criminal procedure
of the Republic of Venice required the usher of the court to cry before every
trial: “Remember the poor baker! (Ricordate vi del pave-r0 fornaro.)" See
Saint-Edme, Dictionnaire de la Pena-lite (Paris, 1825) vol. III, pp. 43, 44.

75

The trial judge has broad power to pass on motions for
. new trials. But Borchard 6" thinks that “except for techni-

cal legal errors his discretion in this matter is usually un-
reviewable,” and only the New York Court of Appeals is
entitled to order a new trial under conditions which amount
to a questioning of the jury on matters of fact.70 As long
as the New York example is not followed by other States
the last refuge of an innocent prisoner will be a petition for
pardon, and it should be emphasized that no parole prac-
tice can suflice as a substitute for pardon in case of
innocence. -

Pardon for refomnatz'on.—A sentence may seem just when
imposed. But circumstances change and the sentence which
covers a long period of years may become unnecessary, harm-
ful, and thus unjust.

Every sentence is but a rough estimation into which enter
problems related to the personality of the wrongdoer and
conditions of the outside world. The idea of deterrence, for
instance, does not look merely to the criminal deed in itself
for a symptom of the dangerousness of the perpetrator, but
for a possible symptom of the thoughts and actions of other
people. We try to bridle these ideas and to restrain these
actions by punishing the same type of crime more severely
than we would do if these conditions did not exist. Subse-
quently pardon would be justified as soon as these circum-
stances had vanished.71

wBorchard, op. cit. supra note 54, at XXII.

7°“When the judgment is of death, the court of appeals may order a new
trial, if it be satisfied that the verdict was against the Weight of evidence or
against law, or that justice requires a new trial, whether any exception shall
have been taken or not in the court below.” Quoted by Borchard, op. cit. supra
note 54, at XXIII.

71It is the same thing with deterrent laws. The 1937 kidnaping law of
Colorado makes kidnaping punishable by not less than 30 years in prison.
The law fixes death as penalty when bodily harm comes to the victim. On
April 2, 1938, District Judge Stanley H. Johnson sentenced Mrs. Emma Rupe,
30, who kidnaped a 2-year-old child and hitchhiked with it to California, to
31 years in the State penitentiary. Mrs. Rupe had already previously hitch-
hiked to the coast, this time in company with the mother of a 3-year-old baby.
On this occasion she learned how easy it was for a woman to hitch rides when
she stood by the side of a road with a baby in her arms.

The judge expressed his opinion that the penalty was too severe and an-
nounced he would go before the Governor and recommend a commutation of
sentence. The district attorney who prosecuted Mrs. Rupe announced that
he would join Judge Johnson in an appeal to the Governor that the 30-year
minimum term be considerably reduced.

76

To submit a reformed perpetrator to further years of
reformatory attempts endangers the whole corrective re-
sult. This knowledge has been the starting point of the
parole system. A carefully developed system of parole,
including supervision by a well-trained and experienced
parole oflicer, is of the greatest value; nevertheless, cases
are imaginable where a full and free pardon would be,
sociologically and psychologically, the “juster” measure.

A lifelong sentence or a sentence of considerable length
will become unnecessary and therefore cruel from the mo-
ment when advancing age has rendered the wrongdoer in-
nocuous. It is the practice of all nations to discharge most
of their “lifers” when, after many years, the memory of
their crime grows pale and their physical vigor is con-
siderably weakened. What we call compassion with the
fate of such a helpless old man is mostly the feeling that
his physical condition no longer permits his maladjusted
brain to perform acts of aggression against society.

In Anglo—American common law, lapse of time was no
general bar to criminal prosecution as it is in continental
law. Kenny and Stephen have mentioned cases where sen-
tence was passed on criminals 19, 23, 30, and 35 years
after the respective crimes of which they were accused,
and Stephen relates a prosecution in 1863, in a case in which
a man was charged with having stolen a leaf from a parish
register in the year 1803. “In this instance the grand
jury threw out the bill.” 72 Statutes today very generally
provide limitations, but capital crimes are generally, and
other serious crimes are frequently, excepted. The reasons
why the continental practice does not accept the maxim,
nullum tempus occurrit regi, and the reasons for the Anglo-
American statutes are twofold: The disappearance of the
evidence, and the apparent “reformation” of the perpe-
trator who for 20 years and more did not attract the atten‘
tion of the police and the courts. We think that very
justly in this country, Governors of States have declined r
extradition and released aged prisoners who had made
good for more than 20 years after having escaped from
another State’s prison, had assumed another name, and by

72 Kenny, Outlines of Criminal Law (Cambridge, 1936) pp. 485, 486;
Stephen, History of the Criminal Law of England, vol. II, pp. 1, 2.

77

honesty and industry had built up a. prosperous business.
A minor offense, such as a traffic violation, plus identifica‘
" tion by fingerprints, generally brings about their later
detection and arrest.

Amelioration can assume other forms.73 In continental
law, attempt to commit any serious crime is punished, but
the voluntary withdrawal from the act of attempt is re-
warded with impunity. In these cases a kind of sudden
amelioration is anticipated and at the same time a practical
aim is pursued: The law wants to induce the perpetrator
voluntarily to desist from the crime.74 In England and in
the United States the exercise of the privilege of pardon
would have to supply for the express legal rule.

Pardon for changed ewterz’or conditiona—Improvement in
surroundings rather than in the individual may sometimes
furnish adequate ground for pardon. Many amnesties be-
come posSible and even useful when certain political and
social tensions are slackened. We would like to differentiate
between amnesties intended to bring about such a dissolution
and which we would call “pacification,” and amnesties which
become justifiable because. the social strain has been dimin-
ished by other reasons—for example, by an upward move-
ment in the economic business cycle.

Reasons of state. (General reasons) .—Pardons and more
often amnesties are granted for reasons of state: to pacify a
revolution-torn country, or to bring about inner cohesion
when this unity seems to be all-important, as in case of war.

Pike 75 has shown the readiness with which pardons were
granted by the old English kings in case of external com-
plications. The understandable aim was to win man-power,
regardless of the demands of criminal law. In 1386, the
aldermen of the famous old imperial town of Regensburg
on the Danube had an armed conflict with the dukes of Ba‘

73 The German military code punishes in articles 85 and 86 acts of cowardice
in an extremely severe way. The law adds in article 88: “Whenever the per-
petrator, after having committed the military crime of cowardice gives eminent
evidence of courage, the penalty can be reduced, and—under special circum-
stances—can be omitted entirely."

74 This rule does not apply to the cases where some particular attempts have
been made felonies themselves, for instance in all cases of preparing and
attempting high treason. Here again executive pardon, instead of acquittal
by the court, still plays a role.

75Pike, History of Crime in England (London, 1873) vol. I, p. 295.

78

varia. All citizens previously banished were pardoned and
called back; 76 women, church burglars, torch-killers ex—
cepted. The exemption of all wofnen demonstrates that
military reasons were at the bottom of the general pardon.
In order to build up an efficacious protection against the
external enemy the internal defense was neglected.

We shall deduce in the chapter on amnesty that in
France general pardons have been proclaimed in order to
remedy the depopulation of the city of Paris by an epi-
demic in 1466, and in 1548 in order to stop the increasing
emigration of citizens menaced by the ruthless repression
of a former revolt.77 Such reasons of population politics
have even been acknowledged by Kant, the great opponent
of the privilege of pardon. The dilemma of either being
without criminals or being deprived of subjects was solved
in favor of a pardoning attitude.78 We may add that all
through the Middle Ages such grounds as that the criminal
was the father of a. great number of children were part of
the pardon petitions and very often were honored.

Lord Bacon has mentioned another ground for proclaim-
ing a swift general pardon. “The 7th of November (1485)
the King held his Parliament in Westminster which he
had summoned immediately after his coming to London.
His ends in calling a Parliament (and that so speedily)
were three. * * * The third to calm and quiet the fears
of the rest of that party by a general pardon; not being
ignorant in how great danger a king stands from his sub—

 

" Knapp, Alt-Regensburgs, Gerichtsverfass-ng, Strafverfahren and Strafrecht
bis zur Carolina (Berlin, 1914) p. 166.

7" Saint-Edme, Dictiommire dc la Pcnalite (Paris, 1824) vol. I, pp. 813, 314.

'3 “However many they may be who have committed a murder, or have
even commanded it, or acted as art and part in it, they ought all to suffer
death; for so Justice wills it, in accordance with the idea of the juridicial
power as founded on the universal law of reason. But the number of the
accomplices (correi) in such a deed might happen to be so great that the
State, in resolving to be without such criminals, would be in danger of soon
also being deprived of subjects. But it will not thus dissolve itself, neither
must it return to the much worse condition of Nature, in which there would
be no external Justice. Nor, above all, should it deaden the sensibilities of
the People by the spectacle of Justice being exhibited in the mere carnage of a
slaughtering bench. In such circumstances the Sovereign must always be
allowed to have it in his power to take the part of the judge upon himself
as a case or necessity—and to deliver a judgment, which instead of the
penalty of death, shall assign some other punishment to the criminals, and
thereby preserve a multitude of the People.” Kant, The Philosophy of Law
(translated by W. Hastie, Edinburg, 1887) p. 200.

79

jects, when most of his subjects are conscious in themselves
that they stand in his danger.” 7"

About 1730, a pardon was granted in England to a con-
demned criminal on condition that he would allow the
great surgeon Cheselden to perforate the drum of his ear,
that the consequent effect upon hearing might be ascer-
tained.$0 Similar suggestions have been made frequently.
But granting of a pardon to a man doomed to die on condi-
tion that he allow dangerous medical experiments to be
performed on him has not been accepted without justified
doubts.

Finally the question of expense could be called a minor
reason of state. Severe laws, like some recent kidnaping
acts, provide for extremely long sentences. The public
demands and accepts such conspicuous harshness, since it
expects a wholesome deterrent effect by the promulgation of
such laws. When it comes to the consequences of such long
penalties, the overcrowding of prisons and a corresponding
heavy rise in expenses, the public is less eager to pursue
the path of energetic repression.

The reduction of expenses has, therefore, occasionally,
perhaps regularly, been a ground for the exercise of pardon
and parole. Since it is only a very distant “reason of
state” the practice cannot be accepted; when the public in
general is persuaded that certain forms of punishment are
necessary, and when they acclaim this mode of protection
as citizens, they should not reject it as taxpayers.

Reasons of state. State’s evidence.——In olden times no
objective methods of crime detection were available. When
no confession could be obtained and witnesses were lacking,
a conviction was very difficult. It was thus understandable
that the State looked about to secure other means of ef-
fecting the conviction of a dangerous criminal. In all
crimes where many parties were involved there was the
possibility of inducing one of the accessories to disclose
the truth. This accomplice had to have a motive for doing
so, and an obvious form of reward was the promise to him
that he should escape punishment. Since he had com-

79 Lord Bacon, Works (Boston, 1860-61) vol. XI, p. 57.
9° Cited by Kenny, Outlines of Criminal Law (14th ed.) p. 592.

80

mitted a crime and since the postive law had no rule
acquitting the associate for betraying a fellow prisoner,
the privilege of pardon was used to attain such end.

The morality of this procedure has been doubted, and
perhaps because ‘of that feeling the problem has never as-
sumed clear and firm legal forms but has been left to dwell
in an atmosphere of half-obscurity and discretional powers.

The philosophers, to be sure, were not content with a cer-
tain steady and time-honored practice. What they were
driving at were arguments, a balancing of the reasons pro
and con, from which they might deduce rules applicable to
all nations and to all conditions. ’

Beccaria 81 has approached the problem with his usual
clearness of mind. “In some tribunals a pardon is offered
to an accomplice in a great crime, if he discovers his associ-
ates. This expedience has its advantages. The disadvan-
tages are, that the law authorizes treachery which is detested
even by the villains themselves; and introduces crimes of
cowardice which are much more pernicious to a nation than
crimes of couragef‘2 * * * The advantages are that it
prevents great crimes, the effects of which being public, and
the perpetrators concealed, terrify the people. It also con-
tributes to prove that he who violates the laws which are
public conventions will also violate private compacts. It
appears to me that a general law, promising reward to every,
accomplice who discovers his associates, would be better than
a special declaration in every particular case; because it
would prevent the union of those villains, as it would inspire
a mutual distrust, and each would be afraid of exposing
himself alone to the danger. The accomplice, however,
should be pardoned, on condition of transportation.88

 

31 An Essay on Grimes and Punishmcnts by the Marquis Beccaria of Milan
(Albany, 1872) pp. 139, 140.

82It is very good psychology, when Beccaria goes on: “courage is not com-
mon, and only wants a benevolent power to direct it to the public goal.
Cowardice, on the contrary, is a frequent self-interested and contagious evil,
which can never be improved into virtue. Besides the tribunal which has
recourse to this method betrays its fallability, and the laws their weakness,
by imploring the assistance of those by whom they are violated.” I bid.

83 This idea, that the “approver” ought to be exploited, pardoned, and then
swiftly cleared away, is very old. “It seems that anciently he (the approver)
ought not to be suffered to continue in the Kingdom,” remarks Hawkins (A
Treatise of the Pleas of the Crown, London, 1824, vol. II, p. 287).

81

Just the opposite opinion was advanced half a century
later by a famous German author, Koestlin, who believed
” that a full pardon would be justifiable in some cases, but
that it would be extremely awkward to turn an emergency
measure into a legal rule.“ His suggestion was rejected in
a noted piece of legislation, the Allgemez'ne Preussische
Landrecht. This law expressly promised pardon to an ac-
cessory of high treason who gave information of the crime
“voluntarily and in good time.” 85 Similar legal pardons
are provided for in the military codes of the great
continental states.

King’s evidence in English doctrine and practice—The
ancient English law with regard to approvers has been dis-
cussed at length by Hawkins.86 A man was an approver
when being indicted of treason or felony and capable of
being an approver he confessed the indictment and was
sworn to reveal all the treasons and felonies he knew. The
conclusion of Hawkins’ discussion of the problem is: 87 “That
if an approver convict all the appellees, whether by battle
or by verdict, the king em mem'to justitiae ought to pardon
him as to his life, and also give him his wages from the time
of the appeal to the time of his conviction.”

The later developments has been stated by Blackstone,88
and Stephen.89 The former quotes Sir Matthew Hale as
observing “that more mischief has arisen to good men by
these kinds of approvements, upon false and malicious
accusations of desperate villains than beneficial to the public
by the discovery and conviction of real offenders. And
therefore in the times when such appeals were more fre-

 

3‘ Koestlin, Neue Revision der Gru-ndbegrifl‘e des Criminalrechts (Tuebingen,
1845) p. 924.

85“Jeder Mitschuldige an einer Hoch und Landesverraeterei, welcher das
boese Vorhaben aus eigener Bewegung und noch in Zeiten entdeckt, kann auf
Milderung oder nach bewandten Umstaenden auf voellige Begnadigung
Anspruch machen.” Preussisches Allgemeines Landrecht II, 20, paragraph
118 " ‘ ‘ It may be called bad legislative technique to promise either
mitigation of the penalty or pardon, as the uncertainty of the issue will not
tempt many approvers to find out, after their confession has been accepted,
what kind of treatment they are going to obtain.

86 Hawkins, 0p. cit. supra note 83, at 281—287.

"Id. at 286.

”Blackstone, Book IV, pp. 329, 330.

3" Stephen, New Commentaries, vol. IV, pp. 349-351.

82

quently admitted, great strictness and nicety was 1
therein.” 9°

The doctrine of approvement has long been out of
The English practice developed in two directions. In s
crimes where associations of criminals are usual and
gerous, a pardon of capital punishment has been prom
by statutes, and sometimes even a promise of a re -
has been added.91 In other cases the assurance is exten
under certain circumstances that the approver shall no
prosecuted for that or any other previous ofi'ense of
same degree.

The situation of the man who is admitted as king’s
dence remains uncertain in law, although it might be 11
more safe in fact. Blackstone remarks:92 “If the ace
plice admitted as a witness by the justice makes a full
true disclosure,93 he ought not to be prosecuted. Bu'
cannot plead this in bar of an indictment, for it is me
an equitable claim to the mercy of the crown from
magistrate’s promise of indemnity upon certain condit
which have been performed.”

90Blackstone, Book IV, p. 329. The Newgate Calendar (vol. II, p.
casts light on the abuses created by such laws. “In the year 1816,
Sir Mathew Wood was Lord—Mayor of London, several conspiracies 0
most diabolic nature were detected " * * The legislature with th
tention of stimulating the exertions of police officers, and inducing o
to give information, had awarded certain rewards to the parties who s
contribute to the conviction of ofienders against laws. The object was
able. but it was capable of great perversion, and was liable to
objections.

“It is an indubitable fact that, for 10 years preceding 1816 victims
brought up, session after session, to be convicted of crimes to which
were seduced by the very men who gave evidence against them that
might revel on the ‘blood money’ or make use of it to provide other vi
for the law.”

91 “I shall only observe that all the good, whatever it be, that can b
pected from this method of approvement, is fully provided for in the
of coining, robbery, burglary, house-breaking, horse-stealing, and larcen
the value of five shillings from shops, warehouses, stables. and coach-h
by statutes 4 and 5, W. and M. c. 8. 6 and 7 Wm. III, e. 17, 10 and 11
III, e. 23, and 5 and 6 Ann, c. 13, which enact, that if any such oife
being out of prison, shall discover two or more persons'who have comm
the like offense, so as they may be convicted thereof; he shall in cas
burglary or house-breaking receive a reward of £40, and in genera
entitled to a pardon of all capital oflfenses, excepting only murder
treason; and of them also in the case of coining ‘ ’ ’ etc.” B
stone. Book IV, pp. 329, 330.

82Blackstone, Book IV, p. 330.

“But who can say whether the disclosure is full and true? The dec
depends on the freest discretion of the judge.

83

State’s evidence in the United States.—Blackstone’s
treatise goes on to say that “In the United States, it would
.seem that if the prisoner makes full disclosure, immunity
is substantially pledged him; the Government is under im-
plied, if not express, obligation not to prosecute.” 94 This
statement remains substantially true. Where an accomplice
has become entitled to such immunity, the proper practice
is either to enter a nolle prosequi to the indictment,95 or
for the court to continue the case against him so that he
may apply for a pardon.96 Where, as is true in most States,
a pardon may not be granted until after conviction, the
accomplice may be convicted and then sentence suspended
so as to permit application for pardon to be made.97

In a New York case the court said: “In disposing of the
multitude of criminal cases which are passing through our
criminal courts there hasgrown up a practice of using an
accomplice or accessory as a witness upon the trial of their
associates. If used prior to indictment or trial, it is proper
that the greatest discretion in the direction of leniency
should be extended, even though no promise were made
either direct or implied. I do not recall a case where such
person was used for the purpose of convicting an accome
plice and was subsequently forced to trial.” 98

But this right to immunity from prosecution or to a
pardon is equitable, merely based upon the pledged faith
of the public. It does not entitle the accomplice as a mat-
ter of legal right to have an indictment against him dis-
missed, or to plead the promise of immunity as a bar-.99
If convicted, he is not entitled to have judgment arrested
or sentence suspended, or to demand a continuance in order

 

“Blackstone quotes the following American decisions in support of his
opinion: U. S. v. Lee, 4 McLean 103; Com. v. Knapp, 10 Pick. 447; Foster
v. People, 18 Mich. 266.

9"’On the whole question of enforceability of premises of immunity by nolle
prosequi see Bishop, Criminal Procedure, vol. I, par. 1161; Nicosia, Enfm-ce-
ability of Prosecutors Agreement not to Prosecute, 24 J. Crim. L. 600 (1933) ;
J. Miller, The Compromise of Criminal Cases 1 So. Cal. L. Rev. 1 (1927).

9° U. S. v. Ford, 99 U. S. 594 (1878); Howe v. State, 111 Md. 1, 73 At].
637, 26 L. R. A. (N. S.) 439, 18 Ann. Gas. 744 (1909).

97State v. Graham, 41 N. J. L. 15 (1879).

93 People v. Warden, 120 Misc. Rep. 94, 197 N. Y. Supp. 543, 547 (1922).

WNewton v. State, 15 Fla. 610 (1876); 00mm. v. St. John, 173 Mass. 566,
54 N. E. 254 (1899) ; State v. Guild, 149 M0. 370, 50 S. W. 909 (1899).

84

to apply for a pardon.1 If this moral claim is not recog-
nized by the court, his only remedy is to apply to the par-
doning power. The fact that a criminal condemned to
death testified against other participants in the crime, upon
promises by‘the district attorney and police officers to rec-
ommend executive clemency for him has been held not to
entitle him to either a pardon or a commutation.2

In a case told by Borchard,3 immunity wasgranted to a
man who 12 years before had murdered a drug clerk. He
was granted a pardon in order to obtain a confession which
proved the innocence of another man serving a life sen-
tence in a Massachusetts penitentiary} Lapseof time and
the desire to free the innocent man coincided in this un-
usual procedure, which formally has nothing to do with
the customary rules of State’s evidence.

Pardons on festive occasiona—The very old fact, already
playing a role in the trial of Jesus Christ, that pardons or
amnesties used to be granted on festive occasions, birthdays
of monarchs and presidents, on the day on which an heir

1People v. Indian Peter, 48 Cal. 250 (1874) ; Comm. v. Woodside, 105 Mass.
594 (1870); Whitney v. State. 53 Neb. 287, 73 N. W. 696 (1898).

28cc People v. Warden, 120 Misc. Rep. 94, 197, N. Y. Supp. 543, 548
(1922) ; “As an illustration I cite the comparatively recent case of People v.
Gasoline. The defendant, with five others, was charged with the crime of
murder in the first degree in shooting and killing Mr. and Mrs. Holbach in
Queens County; the murders being committed in carrying out a conspiracy
to rob. It plainly appeared from the record that Casalino fired the shots
which killed Mrs. Holbach. He was convicted of that crime, and the COurt
of Appeals unanimously affirmed the conviction. * * * Respites were
granted to enable the people to call him, after his conviction, as a witness
on the trial of the other participants, and subsequently he was brought before
the court on habeas corpus for that purpose. Executive clemency was asked
on that ground only. The district attorney and a police ofiicer promised him
to recommend favorable action on such application. Gov. Miller says:

“ ‘After considering all circumstances of the crime, and defendant’s partici-
pation in it, and his conduct and attitude from the time of his arrest down
to the present time, I have reached the conclusion that insufficient grounds
are presented to justify executive interference with the execution of judg-
ment of the court.’ "

3Borchard, Convicting the Innocent, p. 336.

“‘Governor Foss, in response to repeated requests from Chance, began an
investigation of the Hagan statement and sent Joseph Dugan, chief inspector
of the Boston police, and Florence Sullivan, an associate counsel in Hagan’s
trial to Chicago.

“They found Hagan, who had married and was leading a respectable life,
and asked him to repeat the confession. He talked freely about himself and
told the two men that the matter had preyed on his mind and that he would
tell the truth, which others could corroborate, if promised immunity. His
request was granted, and he then admitted that he had shot the drug clerk.”
Ibid.

85

to the throne is born, and on similar occasions, has often
been ridiculed as irrational and senseless.

If we admit that reasons of state might justify pardoning
measures, we have to recognize that there are occasions when
the popularity of the ruler can be considered as a state
interest. By this detour, pardons and amnesties could turn
out to be justifiable or at least not wholly to be condemned,
especially when pardons justified by other considerations
are wisely transferred to the date of the jubilee.

To a pious king or ruler such an act of pardon is a very
rational act, since the thankful prayers of his subjects
ascend to God’s throne and operate in his favor. The gen-
eral pardon granted by Henry VII of England at the end
of his reign (1508—09) was such an act of circumspection.
“For he granted forth a general pardon, as expecting a
second coronation in a. better kingdom,” says Lord Bacon.5

Pardon by “autrcfots puni.”——The formula has been
copied from the pleas of autrefots acquit and autrcfoz's
convict. We mean by it that some kind of damage has
been done to the defendant beyond the sphere of criminal
law and punishment. This damage is considered to be a
sort of penalty, to which another evil ought not be added;
thus the crime is pardoned.

A criminal has been gravely mutilated or has lost his eye-
sight in the perpetration of a crime. Sometimes this ground
for pardon has appeared in criminal codes. For example,
in European codes every participant in a scuffle or afl'ray is
punishable if death or great bodily harm results. Now the
code of the small Swiss state, Waad, says expressly: No
punishment is to be suffered by the participant, “who is
sufficiently punished by the wounds suffered in the fight.” ‘5
This ground of autrefoz's punt can be retraced in not a few
pardon records.

Superstition-8 grozmds.—Modern times are not yet quite
freed from superstitious remnants. In a case related by
Borchard, a man named Brown had been sentenced to death.
“A special gallows had been built. Brown was led to the

5Lord Bacon, Works (Boston, 1860-61) vol. XI, p. 354.

‘Hafter, Schweizcrtsches Strafrecht (Berlin, 1937), Besonderer Teil, p. 46;
“Art. 148, 2 Que? est sumsamment pun/l par la ma-uvais trattement, qu’il a
eprouvé ou par les blessures qu’il a recu.”

86

gallows, and the rope adjusted about his neck. Han
formalities proceeded, but to the great astonishment of
when the death warrant was read,‘it ordered the exec
of the foreman of the jury which had found Brown gu
The Governor granted a plea for a. commutation of the
tence to life imprisonment.” 7

In a more recent English case a pardon was grante
the home secretary when the damp gallows had thrice f
to act. Kenny 3 calls it taking into account popular emo
but we are afraid the English home secretary had not
completely able to get rid of some similar emotion and
very ancient recollections when such strange events
attributed to the intervention of God.

7Borchard. Convicting the Innocent, p. 37.
3 Kenny, Outlines of Criminal Law, p. 592.

CHAPTER III
THE PARDONING POWER

The power to grant pardon is usually thought of as one
of the prerogatives inherently vested in the executive.
European writers have usually spoken of it as an attribute
inherent in the crown. Thus Stephen considers it “one of
the great advantages of monarchy, in general, above any
other form of government, that there is a magistrate who
has it in his power to extend mercy, whenever he thinks it is
deserved.” 1 Again, he says that since all ofi'enses in Eng-
land are against the king’s peace, “it is reasonable that he
only who is injured should have the power of forgiving.” 2
This in the face of the notorious fact that parliament has
for centuries claimed and exercised the power to grant
pardons by legislative act! So in this country the pardon-
ing power is usually thought of as being vested in the
Governor, in spite of the fact that legislatures have from
time to time exercised a concurrent power and in some
States at times have held the sole pardoning power.

The true rule is that “the pardoning power is neither in-
herently nor necessarily an executive power, but is a power
of government inherent in the people, who may by consti-
tutional provision place its exercise in any oflicial, board, or
department of government they choose,” 3 If the constitu-
tion is silent it vests no more power in one branch of the
government than in another.‘

Probably the the reason why we identify the pardoning
power with the chief executive is that, as Lieber pointed out,

1But Stephen promptly adds that “the prerogative of pardoning may be
exercised in democracies as well as in monarchies; although it is in mon-
archies that the exercise of this prerogative is more convenient in practice,
and more striking to the popular imagination." Stephen, Commentaries on
the Laws of England (14th ed.) vol. 4, pp. 416-417.

2Id. v01. 2, p. 505.

sJamison v. Planner, 116 Kan. 624, 634, 228 Pac. 82, 87 (1924).

‘State v. Nichols, 26 Ark. 74 (1870).

73115—39—v0L. III—-—-7 (87)

88

he stands in the place of the monarch of other nations and
the monarch was considered the sovereign. But this ignores
the fact that “the monarch had the pardoning power not
because he is the chief executive,.but because he was con-
sidered the sovereign—the self-sufficient power from which
all other powers flow-3” 5' while with us sovereignty, as
already said, rests in the people who may delegate this
power to whichever agency of the government they choose.
Our Governors, as well as our other departments and agen-
cies of government, have only such powers as are delegated
to them in the constitution,

, . It is true that in this country our constitutions have gen-
erally confided this power to the Governor either acting
alone or in conjuncion with some official or board, and this
is true in all States today. It is commonly said that the
vesting of such power in the executive is exclusive, and for-
bids any such power being exercised by either of the other
two branches of the government. As we shall see, however,
this is probably unsound; the grant of a pardoning power
to the Governor does not exclude the legislature from enact-
ing laws of pardon as part of its inherent legislative
function.

HISTORICAL DEVELOPMENT

Following the American Revolution, it was necessary to
find a new basis for the pardoning power to replace the
English theory that it resided in the King as the fountain-
head of justice and mercy. This new basis was found in the
theory that the power to pardon was a sovereign power,
inherent in the State, but not necessarily inherent in the
executive or in any other given branch of the government
Rather, since the people were the ultimate sovereign, the
power resided in them, and they could provide for its exerc
cise through any agency of government they deemed proper.

And while historically the executive would seem the most
natural agency in whom to entrust this power, the attitude
of the American people after the Revolution was not such
as to lead to this conclusion. The struggle with the mother
country had left them suspicious of the executive. This was

“Francis Lieber, Givil Liberty and Self-Govermnent, appendix II, A Paper
on the Abuse of the Pardoning Power, p. 433.

89

tural encugh, for the royal governor was not usually
pathetic to the colonists. The champion of the people
5 usually the lower house of the legislature. It 18, there'-
e, not surprising that the early constitutions which re-
ced the colonial charters tended to place restrictions upon
Governors spower in many respects, including the power
pardon. Only five States left this power in the Gover-
r alone.6 Six, including the newly admitted State of Ver-
nt, provided that the Governor could pardon only with
isent of the executive council.7 Georgia deprived the
vernor of the pardoning power entirely, giving him only
wer to reprieve until the meeting of the assembly, which
11 could make such disposition of the matter as it saw fit. 8
nnecticut and Rhode Island continued to function under
ir colonial charter,s by which the pardoning power was
ercised by the general assembly.
By the time the Federal Constitution was written, how-
er, opinion had begun to swing back toward placing
eater power in the hands of the Governor. The framers
the Constitution gave the pardoning power to the Presi-
nt without any limitations as to its exercise or any super-
sion by any other oificial or agency. In support of this
ovision of the new Constitution, Alexander Hamilton
'd in The Federalist. “Humanity and good policy con-
ire to dictate, that the benign prerogative of pardoning
ould be as little as possible fettered or embarrassed. The
iminal code of every country partakes so much of neces-
ry severity, that without an easy access to exceptions in
vor of unfmtunate guilt, justice would wear a counte‘
nce too sanguinaiy and cruel.” 9
The executive councils which several States had set up as
means of preventing too much power being vested in one

6Del. Const. (1776) art. 7; Md. Const. (1776), § 33; N. Y. Const. (1777)
. XVIII; N. C. Const. (1776) art. XIX; S. C. Const. (1790) art. II, § 7.
me of the early constitutions, adopted immediately after the Declaration
Independence, were very brief and contained no provisions regarding the
rdoning power. This was true of South Carolina constitutions of 1776 and
78, and the New Hampshire constitution of 1776. '
7MaSS. Const. (1780) pt. II, ch. ii, § 1, art 8; N. H. Const. (1784); N. J.
net. (1776) art. IX; Pa. Const. (1776) §20; Va. Const. (1776).

SGa. Const. (1776) art. 2, § 7.

9 The Federalist (Lodge ed.) No. LXXIV, p. 463.

90

man began to lose favor about the same time. The co
was abolished in a number of States, and the pard01
poWer' given to the Governor alone. This was done
Pennsylvania in 17 90,10 and by Virginia much later
1850.“. Georgia, where from 1776 until 1789 the pardo
poWer had been in the hands of the legislature, in the la
year vested it in the Governor.12 Rhode Island did the s
in 1854. Connecticut did not give its pardon board exp
power to grant pardons until 1935.13 ,

Of the new States being admitted to the Union, the g
majority provided for the exercise of the pardoning po
by the Governor alone. Toward the end of the Ninete
Century there occurred an overwhelming movement to
the Governor some assistance in this task by providin
advisory pardon officer or pardon board. Pennsylv
provided for such a. board as early as 1873, followed
Louisiana in 1879 and Kansas in 1885. The climax of
movement occurred during the years 1897—1918, (1111
which time advisory boards were set up in 23 States
advisory pardon officers in 7. In several States such b0
have since been abolished, however.“ About the same t'
a number of States, especially in the West, set up par
boards not merely to advise the Governor, but actuall
exercise the pardoning power. Nevada vested the par
ing power in a board as early as 1864, and Florida in 1
The Governor, however, was everywhere retained as a m
ber of this board, and in some States he was given con
of the board by providing that his aflirmative vote
necessary for any grant of clemency. The entire histor
development is shown in the table below.

10 Pa. Const. (1790) art. 11, § 9.
: 11 Va. Const. (1850) art. V, § 5.

1‘-’Ga. Const. (1789) art. II, § 7.

18 The Connecticut constitution gives the Governor power only to
reprieVes. Conn. Const, art. IV, 13‘ 10. By statute, 1883, power was gr.
to a board of pardons consisting of the Governor, a judge of the sup
court and four others appointed by the Governor, to grant “commuta
of punishment and releases, conditioned or absolute, from the State pri
Conn. Laws, 1883, ch. 108. Power to grant “pardons," conditione
absolute, was conferred in 1935. Conn. Gen. Stat. (Supp. 1935) § 7870.

1* States formerly having pardon boards, since abolished: Colorado, 1
1923; Kansas, _1885—1919; Michigan, :1893—1921; Mississippi, 191
West Virginia, 1899—1905. Washington had a board from 1897 to 1899,
again has one since 1935.

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94;
IN WHOM PARDONING POWER 1s VESTED

As the summary below shows, no single plan for the
ing of the pardoning power is current in more th
minority of States. In six, the power rests solely .i1
Governor without any other agency either to aid or res
him in exercising it. Four New England State co
tions retain the device of vesting the power in the Gov
with the advice and consent of the executive council (M
Massachusetts, and New Hampshire) or senate (R
Island). By statute in Massachusetts the parole boa
also available to advise the Governor. In Rhode Islan
Governor recommends all pardons to the senate; the
then referred to a senate committee which reports them
favorably or unfavorably. This procedure makes it a]
as difficult to obtain a pardon as to procure enactment
statute.

In seven other States, and in the Federal Goverimient
chief executive also has unrestricted power to pardon,
he is given the services of a pardon attorney or other 0
(or a private individual, in New York) to aid him in
cising the function. Sometimes this oflicer’s duties cover
pardon and parole (North Carolina), or pardon and pr
tion (Vermont). Usually his function is merely to per
the clerical duties connected with the filing of applica
and compiling the required papers for each case and a1
make investigations of the facts. In North Carolina,
parole commissioner also submits recommendations for
disposition of each case.

However, where it is desired to provide the Governor
an agency to hold hearings and to make definite reco
dations, a board, rather than a single officer, is usually
vided. As shown below, this is the case in 23 States.
power of such advisory boards varies considerably f
State to State. In the majority (14), the board is wh

ancillary to the Governor’s power and cannot in any
' restrict him in exercising it. Although applications are
ally first addressed to the board, and the Governor in 1
cases adopts the recommendation of the board, he still
tains power to grant. pardons without. first having the

95

brought before the board and also to disregard the board’s
findings and recommendations.

In Alabama and Iowa, all applications must first be
brought before the board, and the Governor is deprived of
power to grant a pardon until and unless the board has
passed upon the case; but the Governor may disregard the
board’s recommendation and exercise his own judgment.
Seven States have restricted the Governor’s power still
further by providing that he can only grant clemency in
cases where there is a favorable recommendation by the
board; i. e., he may refuse a pardon in cases where the
board recommends granting it, but he cannot grant where
the board recommends rejection.

In nine States,15 the board is not merely advisory to the
Governor but constitutes the ultimate pardoning authority.
In all these, however, the Governor is a member of the
board, and in four of them (Florida, Nevada, New Jersey,
Utah) he must be one of those voting in favor before any
clemency can be granted. In effect, this last arrangement
is similar to that where the board is separate from the
Governor, but where a favorable recommendation is a. con-
dition precedent to the Governor’s power to act. In both
cases the board has conclusive power to reject petitions; the
Governor cannot override such a rejection. Conversely, in
both, a pardon will be refused if the Governor so decides
even though the board members other than the Governor
favor granting. The main difference is that under the one
plan, the exercise of the power is divided into two parts with
the board acting first and the Governor, acting separately,
having power to reject favorable recommendations of the
board; while under the other plan, where the Governor
meets with other board members, interchange of ideas and
opportunity to influence and convince one another is af-
forded, and the Governor must exercise his veto power at
once, in voting as a member of the board.

15Conn. Gen. Stat. (1930) §§ 1997—2004; id. (Supp. 1935) § 7870; Fla.
Const. art. IV, § 12; Idaho Const. art. IV, § 7; Minn. Const. art. V, 5 4,
as amended; Minn. Stat. (Mason, 1927) § 10779; Neb. Const. art. IV, § 13;
Neb. Comp. Stat. (1929) §§ 29—2602, 29-2604; Nev. Const. art. V, § 14; E0
parte Jones, 1 Nev. 319 (1865) ; N. J. Const. art. V, par. 10; N. D. Const. art.
3, § 76; Utah Const. art. VII, § 12; Utah Rev. Stat. Ann. (1933) § 67—0-1;
State ea: rel. Bishop v. Board of Corrections, 16 Utah 478, 52 Pac. 1090
(1898)..

96

I Even in the five States where the Governor has only one
vote, like any other member of the board, he has in fact, or
at least can have, much greater influence than any other
single member; not merely because he is the chief executive
but also because the other members are in all these States
either political lieutenants of his, who cannot afford to
oppose the Governor too often or too much,16 or are private
individuals owing their appointment to the Governor.17
Such officials as the attorney general and secretary of
state need the harmonious cooperation of the Governor in
many matters oolitically more important than pardons and
too much opposition to an opinionated Governor in pardon
hearings may bring reprisals in other afl’airs.

Summary
Number of States

Governor ___________________________ 9
Unaided and unrestricted:

Colorado.

Kentucky.

Mississippi.

New Mexico.

Oregon.

Virginia (constitutional amendment of. 1928 authorizes
legislature to provide for pardoning board, but this has
not yet been acted upon).

With advice and consent of executive council:

Maine (Governor may refer applications to department
of public health and welfare, but rarely does so).

New Hampshire.

With advice and consent of senate:
Rhode Island.
Governor with advisory oflicer _________________ 5
United States (President, with pardon attorney).
Kansas (pardon attorney).
Maryland (parole commissioner).
North Carolina (parole commissioner).
West Virginia (pardon attorney)

 

1“ In Idaho and Nebraska, the board members other than the Governor
are the secretary of state and the attorney general; in Minnesota, the chief
justice and the attorney general.

17 In Connecticut the board consists of the Governor, one of the supreme
court judges, and four other persons appointed by the Governor with the
advice and consent of the senate; in North Dakota, the Governor, the chief
justice, and two electors appointed by the Governor.

97

Summary—Continued
Number of States
‘ernor With adVISOI‘y officer and advisory board ______________ 3

New York (Governor may request division of parole to inves-
tigate, and may appoint some person to hold hearing).

Oklahoma (pardon and parole officer and board) .

Vermont (Governor may have State probation officer investi-
gate, and may request not more than three supreme court
justices to be present at the hearing, in advisory capacity).

ernor with advisory board 23

Board holds hearings and makes recommendations to Gov-
ernor, whose power to act independently is now limited,
however:

Arkansas.

California.

Georgia.

Illinois.

Indiana.

Massachusetts (Governor with advice and consent of
executive council; parole board acts in advisory
capacity). -

Michigan.-

' Missouri.

Ohio.

: South'Carolina.

Tennessee.

Washington.

Wisconsin.

. ' Wyoming.

Board holds hearings and makes recommendations and Gov-
ernor may not act without first referring the matter to the
board:

Alabama.

Iowa.

Board holds hearings and makes recommendations and Gov-
ernor may not act until board reports fat orably:

Arizona.

Delaware.

Louisiana.

Pennsylvania. ,

South Dakota (in cases of persons sentenced to death or
to imprisonment for more than 2 yea-rs or fined more
than $200. In all other cases Governor alone may
pardon).

‘ Texas.

Board must approve any clemency granted by the Governor:

Montana.

98

Summary—Continued
Number of

Board, with Governor as a member ~
Governor has no more voting power than any other membe
majority may grant clemency:
Idaho.
Nebraska.
North Dakota (consent of 4 out of 5 required).
Governor has no more voting power than any other memb
but unanimous consent is required:
Connecticut.
_ Minnesota.
Majority governs, but Governor’s must be one of the affirm
tive votes for any clemency to be granted: '
Florida.
Nevada.
New Jersey.
Utah.

 

COMPOSITION OF PARDON BOARDS

The widest divergences exist in the make- -up of p
boards. Of the 35 States having boards to hear pai do
plications, hardly any two of them have boards .orga
in the same way. We can, however, distinguish four
types of organization: (1) boards wholly ex officio,
made up, of persons holding other offices, such as sec
of state, attorney general, etc.; (2) boards made up 1
of ex ofiicio members and partly of citizen members
boards whose membership is wholly honorary and un
and (4) full-time paid boards. The last named ty
board invariably administers parole as well as pardon;
don cases alone are not sufliciently numerous to just-if
existence of a full time paid board.

The composition of the various State boards, is
specifically shown below:

BOARDS EXERCISING ACTUAL PARDONING POWER

Em-oflio-io membership—Governor, secretary of’stat
torney general: Idaho, Nebraska.

Governor, secretary of state, comptroller, attorney
oral, and commissioner of agriculture: Florida.

Governor, attorney general, and chief justice Of'Sup
court (with a secretary) : Minnesota.

99

Gavel nor justices of supreme court and attorney general:
Nevada, Utah.

Governor, chancellor, and six judges of court of errors and
appeals: New J e1sev

Partly ea: oflicz'o membership .,—Governor attorney gen-
e1 a1, chief justice of sup1eme cou1t, and two qualified elec-
tors appointed by Governor: North Dakota.

Governor, a judge of the supreme court, and four others
appointed by Governor with advice and consent of senate?-
one must be a physician: Connecticut.

ADVISORY PARDON BOARDS

Ea: oflicz'o membership .—Attorney general, secretary of
state, and state auditor: Alabama, Montana.

Attorney general, secretary of state, and presiding judge
South Dakota. .

Lieutenant Governor, attorney general, and presiding
judge of the court before which defendant was convicted
(plus a full time paid secretary): Louisiana.

Lieutenant Governor, attorney general, director of State
department of penology, and wardens of two State prisons.
California.

Lieutenant Governm, chancello1, secretary of state, state
treasurer and state auditor: Delaware.

Lieutenant Governor, secretary of state, attorneyg General,
and secretary of internal affairs: Pennsylvania.

Board of charities (Governor, secretary of state, state
t1easurer, state auditor and state superintendent of public
instruction): Wyoming.

Three supreme court justices may be requested by Gov-
ernor to be present at hearing: Vermont.

Commission, one a trustee of the State prison, trustee of
the reformatory, and secretary of \the governor having
charge of penal affairs; special investigator is provided:
Indiana.

Partly ea: oflicio membership —Superintendent of public
instruction, attorney general and a third selected by these
two (citizen member who is chairman, and who receives
$7. 00 per day while attending meetings), parole clerk at
prison acts as secretary for the board. Arizona.

100

Attorney general, superintendent of public instr.
and chairman of the state highway and public Works
mission, plus three others appointed by the Governor
a parole commissioner who does most of the work) :
Carolina. _ .

'Board of probation and parole (Lieutenant Governo
two persons appointed by Governor, each receiving sa
of $3, 000 each—that of Lieutenant Governor being i
dition to his regular salary). Missouri.

Cominissioner of institutions and public welfare, the
of the division having charge of penal institutions '
department of institutions and public welfare, the
parole officer and a full- time secretary who must be a
yer and who 1s appointed by the commissioner of 1n
tions and public welfare: Tennessee.

Wholly honorary and unpaid membership-éFive-m
pardon and parole board, with a full-time director 0f p
itionan’d parole who acts as secretary of the board: Ark
“Beard appointed by the Governor without statutor
thority and not‘ full-time: Oklahoma, Wisconsin.

. FULL-TIME PAID PARDON AND PAROLE BOARD

Th1 ee_- man board, appointed by Governor, under st
Georgia, Iowa, South Carolina, Washington.

Th1—1ee—man board, one member appointed by Gov
one by chief justice of supreme court and one by pres
justice of court of criminal appeals: Texas.

Three-man beard, consisting of a deputy. commiss
designated by the commissioner of corrections and
persons. appointed by. the Governor: Massachusetts.

Three- man‘board, consisting of assistant director 0
department of corrections and two other members,
pointed by the corrections commission: Michigan.

' Seven- man board, consisting of a supervisor of p.
and six per sons appointed by the Governor with cense
the senate: Illinois.

Two- -ma11 board (one of whom must be a lawyer)
pointed by director of public welfare with approval 0
GoVernor: Ohio.

It seems too much to expect that a wholly ex—
board, made up of busy department heads, will be ab

101

give the time and attention which proper administration
of the pardoning power requires. This is even more true
in States where such a board administers parole as well.
There should be at least one full-time member, or a full.
time secretary or investigator should be provided for the
board, to make some sort of investigation of the merits of
each application. » .
Consolidation of pardon with parole or probation author-
2'ty.——About half the States have in greater or less degree
combined the pardoning with the paroling authority. Thus,
in 17 States the Governor’s advisory pardon board is also
the parole board.18 In at least two others, the Governor’s
advisory pardon commissioner is also the parole commis-
sioner.19 In a few States the power to grant paroles is
treated in the constitution as part of the clemency power,
and the governor is given power to remit fines and forfei-
tures and “grant reprieves, paroles, commutations, and par—
dons.” ” Several of the States which have vested the
pardoning power in a board rather than in the governor
have given this board jurisdiction over both pardons and
paroles.21 The courts have sometimes promoted this result
by holding that parole is a form of executive clemency 2’

 

13 Ala. Const. art. V, § 124; Ariz. Rev. Code Ann. (Struckmeyer, 1928)
§ 5220; Ark. Acts 1937, No. 178; Ill. Rev. Stat. Ann. (Smith-Hurd, 1935)
ch. 38, § 802; Ind. Stat. Ann. (Burns, Supp. 1936) §§ 13—1301 to 13—1304;
Iowa Code (1935) § 3812; Mass. Laws Ann. (Michie, 1933) ch. 127, § 154;
Mich. Pub. Acts 1937, No. 255, ch. III, §§ 1, 13; Mo. Laws 1937, p. 400;
Mont. Const. art. VII, § 20; Mont. Rev. Codes Ann. (Anderson and McFar-
land, 1935) §§ 12434, 12455, 12456, 12264; N. Y. Consol. Laws (Cahill,
1930) ch. 18, § 116; Ohio Code Ann. (Throckmorton, 1936) § 2211—7; Pa.
Stat. Ann. (Purdon, 1930) tit. 61, § 299; Tex. Const. art. IV, § 11, as
amended 1936; Tex. Laws 1935, p. 1237; Wash. Laws 1935, c. 114; Wyo.
Rev. Stat. (Courtright, 1931) § 80—102. In North Carolina and Oklahoma,
the governor in exercising the pardoning power has the help of a pardon
and parole officer and a pardon and parole board.

1" Md. Laws 1922, ch. 29; N. C. Laws 1933, ch. 111; N. C. Laws 1935,
ch. 414. In Oregon, also, although no legal authority exists for the prac-
tice, the governor always requests the parole officer to investigate pardon
applications, and this request is complied with.

”Ala. Const. art. V, § 124; Okla. Const. art. VI, § 10.

21Idaho Const. art. IV, § 7; Neb. Const. art. IV, § 13; Neb. Comp. Stat.
(1929) §§ 29-2602, 29—2604; Nev. Const. art. V, § 14; N. J. Comp. Stat.
(1911) tit. 53, § 173; Utah Const. art. VII, § 12; Utah Rev. Stat. Ann.
(1933) § 67—0—1; State em rel. Bishop v. Board of Corrections, 16 Utah 478,
52 Pac. 1090 (1898).

22 In re Prout, 12 Idaho 494, 86 Pac. 275 (1906) ; State v. Yates, 183 N. C.
753, 111 S. E. 337 (1922).

102

and that statutes attempting to vest the paroling po
elsewhere are unconstitutional.28

Only six States have to any degree consolidated the
ministration of pardon and probation. Missouri, Tenne
and Washington have recently created consolidated bo
which not only administer both parole and probation,
also act as the Governor’s advisory pardon board.24 Mi
gan in 1937 consolidated all three functions in a dep
ment of corrections, but probation is handled by one
reau within this department and pardons and paroles
another.25 In Arkansas the director of probation and
role is appointed by the State board of pardons and
roles, and presumably the administration of the two rel
procedures is fairly closely linked in the same officials.26
Montana the board of prison commissioners is charged
the administration of probation. This board consist
the Governor, the attorney general, and the secretar
state; the first two of these, together with the State a
tor, also make up the board of pardons. In North Da
the State board of administration has charge of probat
subject to the probation regulations of the board of pard

POWER OF THE LEGISLATURE TO GRANT PARDONS

‘ Are the constitutional provisions giving the Governo
a board power to grant pardons intended to confer an
elusive power, or may the legislature also grant pardons

It is amazing that so fundamental a question should
remain unsettled, but the fact is that a reading of the c
reveals a surprising disagreement on the matter. There
at least four possible views, and some support can be f0
for each of them:

(1) That a State constitutional provision conferring
pardoning power upon the Governor (or a board) is

g“Fem v. Martin, 155 Ore. 455, 64 P. (2d) 631 (1937); State em
Bishop v. Board of Corrections, 16 Utah 478, 52 Pac. 1090 (1898).
result of the latter decision, parole in Utah is now administered by
board of pardons. Utah Rev. Stat. Ann. (1933) § 67—0-7.

“Mo. Laws 1937, p. 400; Tenn. Laws 1937, ch. 132, 276; Wash.
1935, ch. 114.

2“Mich. Pub. Acts 1937, No. 255.

30 Ark. Acts 1937, No. 178, § 6.

103

elusive, and permits no invasion of this power by the legis-
lative or judicial branches of the government.

(2) That such power is not exclusive but concurrent. It
does not impair the scope of the legislative function; and
granting pardons has historically been a proper subject of
legislation.

(3) That such a power is partially concurrent; i. e., the
executive alone may grant individual pardons, but the leg-
islature retains the right to enact general laws of pardon
and amnesty.

(4) That the legislature retains a supplementary power
to grant pardons in such cases as the executive power does
not cover.27

Exclusive power theory—Probably the theory most gen-
erally said to be correct is that the grant of the pardoning
power to the executive is exclusive, and such power may not
be exercised or interfered with by the legislature,28 or dele-
gated by it to any other official or agency.29 Although often
repeated, actual and direct application of this principle is
surprisingly rare. Apparently only one case exists in which
a legislative act undertaking to grant a pardon to a specific
individual has been held unconstitutional.3° Against this
case may be cited no less than half a dozen cases in which
such acts were either held or tacitly assumed to be valid,81

 

5?"This classification is taken from Barnett, Emecutive, Legislature, and
Judiciary tn Pardon, 49 Am. Law Rev. 684.

2"See U. S. V. Klein, 13 Wall. 128, 147 (1872) (“to the executive alone is
intrusted the power of pardon”) ; Haley v. Clark, 26 Ala. 439 (1855) ; State
ea: rel. French v. Stone, 224 Ala. 234, 139 So. 328 (1932); People v. Moore,
62 Mich. 492, 500, 29 N. W. 80, 81 (1886) ; State v. Jackson, 1.43 Miss. 745,
109 So. 724 (1926) ; State v. Kirby, 96 Miss. 629, 51 So. 811 (1910) ; State v.
Sloss, 25 M0. 291 (1857) ; Ex parte Bustillos, 26 N. M. 449, 194 Pac. 886
(1920); Houghtaling v. Kelderhouse, 1 Park Cr. 241, 243 (1851); Ex parte
Ridley, 3 Okla. Cr. 350, 355, 106 Fee. 549, 551 (1910) ; Diehl v. Rodgers, 169
Pa. St. 316, 323, 32 Atl. 424, 426 (1895); Comm. v. Delnn-iston. 9 Watts
(Pa.) 142 (1839).

3" See People v. La Buy, 285 111. 141, 144, 120 N. E. 537. 538 (1918) ; Butler
v. State, 97 Ind. 373, 375 (1884) ; Flte v. State ea: rel. Snider, 114 Tenn. 646,
88 S. W. 941 (1905); Ea: parte Mters, 124 Tex. Cr. 592, 64 S. W. (2d) 778
(1933) ; In re Conditional Discharge of Canvtcts, 73 Vt. 414, 420, 51 At]. 10,
11 (1901) ; State v. Thompson, 80 W. Va. 698, 701, 93 S. E. 810, 811 (1917).

“Singleton v. State, 38 Fla. 297, 21 So. 21, 84 L. R. A. 251 (1896). In
Opinion of the Justices, 14 Mass. 472 (1787), the court delivered an advisory
opinion that a legislative act commuting a sentence would be unconstitutional.

”People v. Bircham, 12 Cal. 50 (1859) (act for relief from forfeiture on a
bail bond upheld; no question raised as to usurping pardoning power) ; Bird v.
Breedlo-ve, 24 Ga. 623 (1858) ; Bird v. Meadows, 25 Ga. 251 (1858) ; Lyon v.
Norris, 15 Ga. 480 (1854); People v. Stewart, 1 Idaho 546 (1871) (Special

73115—39—von. III—8

104

and all the general acts of pardon and amnesty passed
the Civil War.82

The most frequent application .of the exclusive p
doctrine today is not in cases where the legislature exp
undertakes to grant a pardon—for legislative pardon
rare today—but in cases involving statutes which do 1
terms deal with the pardoning power at all, but whi
the court’s opinion do, in effect, constitute an attem
exercise a pardoning power. Thus an act authorizing
courts to commute sentences within 30 days after jud
has been held an invalid infringement upon the Gover
prerogative to pardon.33 The same has been held of
authorizing courts to suspend all or part of the punis
upon conviction of desertion or nonsupport; 3‘ permi
the county board of supervisors to discharge infirm
victs,35 or to change the sentence from work on a chain-
to the hiring of the convict to a private person for pr
work; 36 authorizing “good time” deductions to co
already serving sentence; 37 or requiring a county trea
to pay to sureties of a criminal defendant the amount
they had paid as his fine.38

Although it is generally said to be too well establ'
to require any citation of authority that the legislatur
legally achieve the same effect as a general pardon b
conviction by repealing the statute creating the 0
without a saving clause, and that all prosecutions there
fall and all offenses not yet prosecuted are thereupon w

statute remitting penalty held valid; no question raised of invading Gove
power); Rankin v. Beaird, 1 III. 163 (1826) (special act requiring she
discharge a person sentenced to stand committed until fine was paid;
valid); Conner v. Bent, 1 Mo. 235 (1822) (special act upheld releasi
fendant from a judgment to pay over public money; no question rais
pardoning power).

32 See Amnesty, ch. VIII.

“3 PeOple v. La Buy, 283 111. 141, 120 N. E. 537 (1918).

34 State v. Jackson, 143 Miss. 745, 109 So. 724 (1926).

35 State v. Kirby, 96 Miss. 629, 51 So. 811 (1910). Of. State ex rel. Hal
v. Thompson, 80 W. Va. 698, 93 S. E. 810 (1917).

36 Ogletree v. Dozier, 59 Ga. 800 (1877).

87 State ea: rel. Johnston v. McClellan, 87 Tenn. 52, 9 S. W. 233 (1888).
see Hartung v. People, 22 N. Y. 95, 105 (1860). As to perSOns convicted
its enactment, an act providing for good time deductions is valid. Ea:
Wadleigh. 82 Cal. 518 (1890) ; Fite v. State ea: rel. Snider, 114 Tenn. 64
S. W. 941 (1905).

”Haley v. Clark, 26 Ala. 439 (1855) ; State v. Stone, 224 Ala. 234, 13
828 (1932).

'105

out,39 yet a few cases seem to contravene even this well
recognized rule. Such a repeal has been said to operate as
a legislative pardon,4o and 1n at least two States such acts
have been held invalid for that reason. 41 This seems to
carry the prohibition against legislative pardons much too
far. and to forbid not only actual pardons by the legislature
but to forbid anything that looks, tastes, or smells like a
pardon, even when it actually constitutes simply a part of
the obvious legislative function of enacting and repealing
laws.

Laws undertaking to authorize trial courts to suspend
sentence or place defendants on probation have in several
States run afoul of the objection that this constituted an
invalid delegation of the pardoning power to the judiciary.42
The parole system has been similarly hampered by deCisions
holding that parole is “in the nature of a conditional par—
don,” and that therefore the legislature has no power to
enact a parole law, because that would be an attempt to
grant legislative pardons.43 Some courts have held that
while a parole law is not in itself an invasion of the par-
doning power, yet if applied to convicts sentenced before
its enactment, this would constitute an invasion of the par-
doning power.44 That such restrictions constitute an over-
zealous guarding of the executive pardoning power and are
socially unfortunate is obvious, and the more modern cases
reject them.45

a"Coles v. County of Madison, 1 111. 154 (1826); Wharton v. State, 5 -
Coldw. (Tenn.) 1, 94 Am. Dec. 214 (1867).

40 State v. Johnson, 12 La. 547, 552 (1838) , Wharton v. State, 5 Coldw.
(Tenn.) 1, 7, 94 Am. Dec. 214, 217 (1867).

‘IState v. Sloss, 25 M0. 291, 69 Am. Dec. 467 (1857) (act absolving from
prosecution all persons under indictment for violation of the dram shop act,
on condition of paying fee of $2 and costs, held bad) ; State v. Todd, 26 M0.
175 (1858) (same); State v. Fleming, 7 Humph. (Tenn.) 152, 46 Am. Dec. 73
(1846) (act to dismiss all prosecutions under prior act punishing tippling,
upon passage of a new act to permit sale of liquor, held invalid).

42 See post, pp. 124—125.

43 People v. Cummings, 88 Mich. 249, 50 N. W. 310, 14 L. R. A. 285 (1891) ;
State v. Board of Corrections, 16 Utah 478, 52 Pac. 1090 (1898); and see
In re Conditional Discharge of Convicts, 73 Vt. 414, 51 At]. 10 (1910).

44 State el rel. Johnston v. McClellan, 87 Tenn. 52, 9 S. W. 233 (1888);
F-ite v. State ea: rel. Snyder, 114 Tenn. 646, 88 S. W. 941 (1905).

45 Laird v. Sims, 16 Ariz, 521, 147 Pac. 738 (1915); People v. Roth, 249
111. 532, 94 N. E. 953 (1916) ; Miller v. State, 149 Ind. 607, 49 N. E. 894 (1897) ;
Board of Prison Commissioners v. De Moss, 157 Ky. 289, 163 8 W 183 (1914) 3
People v. Warden of Sing Sing Prison, 39 Misc. Rep. 113 (1889); State v.

106

On the other hand, a statute authorizing "a trial judg
substitute imprisonment for fine where the defendan
unable to pay the fine has been sustained as against
objection that it infringes the governor’s power to g
pardons and reprievesfl6 So also has a statute givin
appellate court power to stay sentence of death pendin
appeal.‘7 So also an act giving to persons imprisoned
non-payment of fines the benefit of laws for the relie
insolvent debtors and authorizing their discharge,48 an
act authorizing courts to set aside or modify revocation
motor vehicle drivers’ licenses.49 Undoubtedly valid
are many other types of statutes which have usually
unchallenged, as for example, acts authorizing trial ju
to remit punishment of persons convicted of intoxica
on condition of giving evidence as to the person from wl
the liquor was obtained; 5° or making marriage a bar t
indictment of seduction; or barring certain prosecut'
upon a compromise.61

Acts restoring to competency as witnesses persons
have been convicted of crime have been held bad in Miss
and Texas as an attempted exercise of the pardoning po
insofar as they applied to persons convicted before the
went into effect.52 It would seem sounder, however,
hold that the incompetence is imposed because a convi
person is presumed to be untrustworthy, and not as a p
ishment to him, for while the rule may disgrace or humil'
the convict, it punishes only the party who is deprived

Peters, 43 Ohio St. 629, 4 N. W. 81 (1885); Woods 17. State, 130 Tenn.
169 S. W. 558 (1914) ; George, etc. Commissioners v. Lillard, 106 Ky. 820
S. W. 793, 1011 (1899).

‘0 Ea: parte Parker, 106 M0. 551, 17 S. W. 658 (1891).

4" Parker v. State, 135 Ind. 534, 35 N. E. 179, 23 L. R. A. 859 (18
overruling Butler v. State, 97 Ind. 373 (1884). See also Opinion 07*
Judges, 3 Okla. Cr. 315, 105 Pac. 684 (1909).

‘3 Ea: parte Scott, 19 Ohio St. 581 (1869).

‘9 In re Probasco, 269 Mich. 453, 257 N. W. 561 (1934).

“Plenler v. State, 11 N91). 547, 10 N. W. 481 (1881). The court in
case pointed out that this act exempted from punishment only upon speci
conditions, whereas a pardon “is not a right given for a consideration
the individual by the legislature, but a free gift from the supreme author
confided to the chief executive and to be bestowed according to his
discretion.” It is interesting to compare such statutes to the ancient law
“apprOVers.” Ante, pp. 79—82.

51 See State ea: rel. Witter V. 1=‘0rkner, 94 Iowa 1, 62 N. W. 772 (1895).

59 State v. Grant, 79 Mo. 113 (1883); Underwood v. State, 111 Tex.
124, 12 S. W. (2d) 206, 63 A. L. R. 978 (1928).

107

his testimony; statutes restoring competence might, there-
fore, be held to be an exercise of the legislative power to de-
termine who shall be competent to testify, rather than an
exercise of the pardoning power remitting punishment. In
other States, objection to such statutes on this ground has
not even been suggested.53

Immunity statutes, providing that no person should be
excused from testifying on the ground that his testimony
would incriminate him, but that no person so required to
testify should be punished for acts disclosed by such testi-
mony, are clearly valid so far as concerns offenses committed
after their enactment,“ but it has been held that if construed
to apply to witnesses already convicted, they would in effect
grant pardons after conviction, a power exclusively in the
executive.55 But here, too, it would seem sounder to hold
that the act was a proper exercise of the undoubted legis-
lative power to amend the criminal law of the State,
rather than the pardoning power.‘56 In most cases in-
volving such statutes, the objection that the act invaded the
pardoning power has not even been suggested.57 .
. Concurrent power theoryx—At least in North Carolina it
is held that the constitutional provision vesting power in
the Governor to grant reprieves, commutations and par-
dons, after conviction, “was not the grant of an exclusive
power and did not deprive the General Assembly of the
power to pass special or general acts of pardon, like the
English Parliament, even before conviction.” ‘8

In several cases in the Federal courts, it has been said
“while pardons are usually granted by the executive, the
pardoning power is by no means confined to that branch cf
government.” 5"

53H0pt. v. Utah, 110 U. S. 574 (1883) ; Sutton v. Fox, 55 Wis. 531, 13 N. W.
477 (1882).

64In re Briggs, 135 N. C. 118, 47 S. E. 403 (1904); State v. Bowman, 145
N. C. 452, 59 S. E. 74 (1907); Ex parte Muncy, 72 Tex. Cr. 541, 163 S. W.
29 (1914).

55 Ea: parte Miers, 124 Tex. Cr. 592, 64 S. W. (2d) 778 (1933).

“Brown v. Walker, 161 U. S. 591 (1896).

“State v. Rafi, 176 Minn. 308, 223 N. W. 144 (1929).

68In re Briggs, 135 N. C. 118, 47 S. E. 403 (1904); State v. Bowman, 145
N. C. 452, 59 S. E. 74 (1907). ‘

59 U. S. v. Hughes, 175 Fed. 238, 243 (1892). Accord: U. S. v. Hall, 53
Fed. 352 (1892); U. S. v. Perkins, 17 F. Supp. 851 (1936). See also People
v. Potter, 1 Park Cr. (N. Y.) 47, 55 (1846).

108

Special legislative acts of pardon were not infrequent a
hundred years ago and the validity of such acts was usually
conceded, either expressly or tacitly.“ General acts of am-
nesty were passed after the Civil War both by congress and
by various State legislatures, and these were uniformly up-
held.61 And while special acts of legislation are now dis-
favored and even prohibited in most States, the possibility
of‘troubled political times, in which general acts of amnesty“
may be called for, remains. It is difficult to believe that any
court, no matter how definitely committed to the exclusive
power theory, would undertake to hold unconstitutional a
general act of amnesty passed to allay strife and bitterness
after a serious political upheaval.

Partially concurrent theory—As already said, probably
most courts would find it difficult to hold that a general act
of amnesty was not within the proper power of the legisla-
tUre. To reconcile this result with the general proposition
that'the executive pardoning power is exclusive, we some-
times" find a theory that the legislature may enact general
laws of pardon, but the power to grant individual pardons
is exclusively in the executive. Such a distinction has been
suggested in a North Carolina case, where the court said
that the constitution “confers on the Governor the power
to exercise clemency in a particular case, and in favor of an
individual or individuals especially charged with the of-
fense; this being an executive act of a quasi judicial kind,
permissible to the Governor by reason of this express pro-
vision of the Constitution, while an amnesty act establishes
a general rule abolishing the offense, and applicable to all
persons, or persons of a given class, whether charged or not,
this being more especially an act legislative in its nature.” 62

But this distinction seems unsound. The executive power
is generally said to include power to grant general as well
as individual pardons,63 so it is difficult to see why a general
legislative pardon should not be considered as much an in-
vasion of the executive power as an individual legislative

00 See ante, note 5.

°1 See Amnesty, ch. VIII.

“State V. Bowman, 145 N. C. 452, 59 S. E. 74 (1907). See also Hutton v.
MoOleskey, 132 Ark. 391, 200 S. W. 1032 (1918).

“Davies v. McKeeby, 5 Nev. 369, 873 (1870).

109

pardon. Conversely, there is no historical differentiation
between general and individual legislative pardons; if a
general pardon is within the proper scope of legislation, so
is an individual pardon.

It is true that today, special legislation is looked upon
with disfavor, and is now expressly prohibited by constitu-
tional provision in about two-thirds of the States. Such a
provision would prohibit special or individual legislative
pardons as well as any other kind of special legislation.
But this is part of a general policy against special legisla-
tion of all kinds, not at all confined to pardons, and does not
justify any distinction in the law of pardon.

Supplementary power theory—The executive power to
pardon is almost everywhere subjected to certain limitations,
as for example that no pardon shall be granted for certain
offenses, or until “after conviction.” 6“ Arguing that “when‘
ever there is a crime or punishment remaining in force, there
should be a power of pardon,” 65 it can be contended that
while the executive power is exclusive within its own do-
main, yet in cases where the executive is not authorized to
act, the legislature may do so. Thus the Texas Court of
Criminal Appeals has said that where the constitution
grants power to the Governor to pardon “after conviction,
* * * the power to pardon before conviction still rests
with the sovereign people, and they, acting through their
representatives, the legislature, could bestow it upon the
Governor, the courts, or any other agency of government,
or by legislative act could reprieve or pardon before
conviction.” 6“

This theory has also been accepted by the Arkansas court:

“While it may be conceded that the pardoning, after eon-
vietion, is, by the Constitution, declared to be one of the
duties of the executive, yet the exercise of the same power
by the legislature, before conviction, cannot be construed, in
our opinion, to be an invasion of the executive department.
* * * It is urged, however, that the pardoning power is
peculiarly an executive function, and that any exercise of

64 See ch. IV.
05 00mm. v. Green, 17 Mass. 514, 542- (1822). '
“Ea: part6 Muncy, 72 Tex. Cr. 541, 163 S. W. 29 (1914).

 

110

such power by the legislature is impliedly prohibited.
power to pardon partakes more of the nature of a dispe
than an executive power. The chief duty of the execut
to see that the laws are executed, and, where the pew
dispense with the execution of the law is given him, it s
not be extended by implication. The power of dispe
with the law and its penalties, partakes more of a legisl
than of an executive character.” “7

The answer to this, which proponents of the excl
power theory would make, is probably that it is not
that there should be a power to pardon for all crimes
punishments, but that on the contrary, the ‘exceptio
certain cases from the pardoning power of the exec
was intended to mean that there should not be any p
in anyone to pardon 1n such cases.

Concurrent power theory preferable .——Although the
weight of judicial opinion favors the theory that the e
tiveb power is exclusive, it is submitted that the true t
is that the power is concurrent. Several considerations
to this conclusion:

(1) It cannot be denied that the legislatures histori
have exercised the power to grant amnesties, not onl
England but in this country also. Under the excl
power theory this must be accepted as a mere histo
. anomaly. But it is more than that. It is an impo
political power which should not be denied to the legisl
as a matter of policy. Amnesties become important
political crises which often involve treason. In most St
treason is excluded from the Governor’s pardoning po
so unless the legislature can grant an amnesty in such 0
no one can. Both on the ground of precedent and p0
therefore, it seems better to say that the legislature h
power to grant at least general pardons.

(2) But our law makes no distinction between ge1
and individual pardons, and if we concede legislative p
in the one case, we should do so in the other. The objec
to permitting individual legislative pardons as a matte
policy is no different from the objection to xlegisla
divorces or special legislation of any other kind. This

0”State V. Nichols, 26 Ark. 74. 79 (1870).

111

jection should be handled by a constitutional provision
against special legislation. It has nothing to do with the
theory of legislative pardons as such.

(3) History shows that there is very little need of any
such. restriction as the exclusive power doctrine. Indi-
vidual legislative pardons, like legislative divorces, have
simply gone out of fashion, and there is little danger of
their reappearing, even in the minority of States where such
‘abuSe is not already prevented by the constitutional prohibi—
.tion against special legislation.

; i (4): The theory of exclusive power has been employed by
the courts not primarily to prevent the legislature from
actually granting pardons, but to strike down statutes of
various kinds not expressly dealing with pardons at all,
but which the courts held nevertheless to constitute an in-
vasion of the pardoning power. Almost without exception,
these decisions represent a limitation upon democratic gov-
ernment wholly unjustified by any sound social or political
policy. The laws thus stricken down were often socially
highly desirable, e. 9., parole and probation laws. Some-
times the decisions extended the scope of the pardoning
power which the legislature could not invade to absurd pro-
portions, as in the cases holding that even the repeal of a
criminal statute is invalid because in effect it works a par-
don. In short, the theory has done more mischief than
good.

The pardom'ng power of 00ngress.—_—What has been said
of the pardoning power of State legislatures does not neces-
sarily apply to Congress. “There is a broad difference as to
the rule of construction applicable to the Constitution of
the United States and that of a State. The Government of
the United States is one of enumerated and limited powers,
while the government of the State is possessed of all the
general powers of legislation. In construing a law of the
United States, we look at the Constitution to see if the power
is granted; but, in construing the Constitution of the State,
we .look whether the legislation is prohibited by express
words, or by implication. Congress can pass no laws save
such as the Constitution authorizes in express terms, or
necessary implication, while the Legislature is constrained

112

by no bounds, save such as the Constitution of the State
of the United States have thrown around it.” 68

Although there is very little direct authority on the q
tion, the better view seems to be that the power of Cong
to enact laws providing criminal penalties for ofi'e
against the United States carries with it the implied p
to pardon for such offenses. It is true that one of
cases following the Civil War contains a casual dictum
“to the executive alone is intrusted the power of pardon
but in at least two later cases, where the question was
directly involved, the court ignored this dictum and
that Congress has a concurrent power. .

“It may be conceded,” the Supreme Court has said, “
except in cases of impeachment and where fines are imp
by a coordinate department of the Government for cont
of its authority, the President, under the general qual
grant of power to pardon ofi'enses against the United St
may remit fines, penalties, and forfeitures of every des
tion arising under the laws of Congress; and, equally,
his constitutional power in these respects cannot be i1
rupted, abridged, or limited by any legislative enact
But is that power exclusive, in the sense that no other 0
can remit forfeitures or penalties incurred for the viol
of the laws of the United States? This question cann
answered in the affirmative without adj udging that the
tice in reference to remissions by the Secretary of the T
ury and other oflicers, which has been observed and
quiesced in for nearly a century, is forbidden by the
stitution. That practice commenced very shortly after
adoption of that instrument, and was perhaps sugg
by legislation in England, which, without interfering
abridging, or restricting the power of pardon belongin
the Crown, invested certain subordinate ofiicers with
thority to remit penalties and forfeitures arising from
lations of the revenue and customs laws of that countr

In Brown v. Walker,“ the court held that the act of
gross “securing to witnesses immunity from prosecutio

“State V. Nichols, 26 Ark. 74 (1870).

“9 U. 8’. V. Klein, 13 Wall. 128, 147 (1872).
7° The Laura, 114 U. S. 411 (1885).

71 161 U. S. 591 (1896).

113

virtually an act of general amnesty, and within the power
of Congress.” “Although the Constitution vests in the Pres-
ident power to grant reprieves and pardons for offenses
against the United States, except in case of impeachment,
this power‘ has never been held to take from Congress the
power to pass acts of general amnesty.”

LEGISLATIVE REGULATIONS OF EXECUTIVE CLEMENCY
POWER '

Legislature may not restrict executive power.——Where
the constitution grants the pardoning power to the Gov-
ernor or to a board, this power is not subject to restriction
or interference by the legislature.72 It “cannot be inter‘
rupted, abridged, or limited by any legislative enactment.” 73
Even where the constitution embodies certain limitations or
exceptions, it is held that the power is limited only by such
express provisions, and cannot be further limited or re-
stricted by the legislature; the specific mention of certain
limitations indicates that such limitations are. the only
ones intended—empressio um'us ewelusio alterius est.“

This rule is sometimes stated in combination with the
rule discussed in the previous section, that the pardoning
power of the executive is exclusive and may not be emer-
cised by the legislature. Thus we find such statements as
that the Governor’s power is ezcclusive and cannot be re-
stricted by legislation.75 It is more helpful, however, care-
fully to distinguish these two propositions. While it is
generally agreed that the legislature may not limit or re-

 

72 Ea: parte Garland, 4 Wall. 333, 380 (1866); U. S. v. Thomasson, 4 Bliss.
336, Fed. Gas. No. 16,479, p. 83 (1869) ; Ea: parte Law, 35 Ga. (U. S. D. C.)
285, Fed. Gas. No. 8,126, p. 8 (1866) ; Singleton v. State, 38 Fla. 297, 21 So.
21 (1896) ; Routt v. Feemster, 7 J. J. Marsh. (Ky.) 131, 132 (1832); Rich v.
Chamberlain, 104 Mich. 436, 62 N. W. 584 (1895) ; People v. Moore, 62 Mich.
496, 500, 29 N. W. 80, 81 (1886) ; Ea: partc Bustillos, 26 N. M. 449, 194 Pac.
886 (1920); Knapp v. Thomas, 39 Ohio St. 377, 392 (1883); Ten". v. Rich-
ardson, 9 Okla. 579, 584, 60 Pac. 244 (1900); Ea: parte Ridley, 3 Okla. Cr.
350, 355, 106 Pac. 549, 551 (1910); Comm. v. Denm‘ston, 9 Watts (Pa.) 1.42
(1839).; State ea: rel. Rowe v. Connors, 166 Tenn. 393, 61 S. W. (2d) 471
(1933) ; State v. Dalton, 109 Tenn. 544, 72 S. W. 456 (1903) ; Easterwood v.
State, 34 Tex. Cr. 400, 409, 31 S. W. 294, 296 (1895) ; In re Conditional Dis-
charge of Convicts, 73 Vt. 414, 420, 51 Atl. 10, 11 (1901).

73 The Laura, 114 U. S. 411, 414 (1885).

74Diehl v. Rodgers, 169 Pa. St. 316, 323, 32 Atl. 424, 426 (1895).

“"5 Ea: parte Ridley, 3 Okla. Cr. 350, 355, 106 Pac. 549, 551 (1910); Comm.
v. DennistOn, 9 Watts (Pa.) 142 (1839).

114

strict? the pardoning power vested in the executive by

constitution, there is not, as we saw in the section ab

any'such unanimity regarding the proposition that the l
islature may not itself exercise a concurrent pardon
power.

Legislature mag enaet laws in aid of ea'eeutive powe
That the legislature may not restrict or abridge the ex
tive power does not mean that'the legislature may not e1
any laws dealing with pardons. Undoubtedly the legi
ture may enact laws more or less regulating the exercise
the power by the executive. Statutes designed to ren
the exercise of the power by the executive .more conveni
and efficient are generally held not to be an encroachm
upon or interference with the executive power.76 Thus i
valid to provide appropriate proceedings for enforcing
original‘sentence in case of a breach of a conditional p
don; ‘77 or for avoiding pardons obtained by fraud.78
' Many States have enacted statutes requiring applica
for pardon to present certain proofs or follow certain f
malities, such as publishing notice of intent to apply
pardon.79 By statute also in several States advisory par
boards have been created to aid the executive in exercis'
the function.80 Such regulations are generally assumed
be valid, at least so long as the requirements are addres
only to the applicant and do not undertake to restrict
power of the executive to disregard such provisions.81

Legislature may prescribe manner of granting pardons
The manner of granting pardons may also be regulated
some extent; thus it has been held that “the legislature h
the undoubted right to prescribe the mode of granting p
dons, whether they shall be by parole, in writing, or un

 

“Fuller v. State, 122 Ala. 32, 26 So. 146 (1898); In re Kennedy,
Mass. 48 (1883). See also Ea: parte Bustillos, 26 N. M. 449, 194 Pac.
(1920) (“that the exercise of the power may be regulated by law is not to
questioned, so long as the prescribed regulation does not impair the ultim
power granted”).

7" Fuller V. State; In re Kennedy, both supra, note 76.

78 See Knapp v. Thomas, 39 Ohio St. 377, 392 (1883): “doubtless th
might be a Valid enactment providing how a pardon obtained by fraud m
with the concurrence of the executive, be avoided for fraud, for that we
be in aid of the power."

7" Seech. V, “Application.”

8° See ante, pp. 94—95, 97.

'51 Terr. v. Richardson, 9 Okla. 579, 60 Pac. 244 (1900). See aISO p
note 89.

115

, and how they shall be authenticated,” and that a “pre-
ded pardon,” issued without a seal as required by law,
1d be a nullity.82 An act requiring the executive to re-
t annually to the legislature on all clemency granted is
id, “as the legitimate object of legislation is to ascertain
only the existence and character of crimes, but the mode
vhich they are dealt with.” 83

onstitutional provisions for legislative regulation—How
ch further the legislature may go in controlling the exer-

g of the pardoning power depends somewhat upon
stitutional provisions. Although in the Federal Consti-
'on and in the constitutions of some 18 States the power
grant pardons is granted to the chief magistrate or a
rd without any express authorization to the legislature
egulate the exercise of this power; in at least 13 States
constitution provides that the pardoning power shall be
bject to such rules and regulations as the legislature may
scribe”; 8* and in 17 States the power is subject to such
es and regulations as the legislature may prescribe “as to
manner of applying for pardon.” 3"

Sutton v. McIlhany, 5 West L. J. 356, 357 (1848). Of. Thornton, Pardon
Am-nesh. 6 Crim. Law Mag. 457, 464 (1885).
16 Opinions Att’y Gen. 27, 29 (1878).
Arlz. Const., art. V, § 5; Ark. Const. (1874), art. VI, § 18; Ind. Const.,
V, § 17; Iowa Const., art. IV, § 16; Kan. Const., art. I, § 7; Neb. Const.,
‘Iv, § 13; N. M. Const., art. v, § 6; Okla. Const., art. v1, § 10; Ore.
st., art. V, § 14; Va. Const., § 73; Wash. Const., art. III, 5 9; W. Va. Const.,
VII, § 11. In Minnesota, the board's “powers and duties shall be defined
regulated by law.” Minn. Const., art. V, § 73.
1 Alabama and Texas, the legislature’s power to prescribe rules extends
to the remission of fines and forfeitures, but not to the granting of
'ieves. commutations. or pardons. Ala. Const., art. V, § 124; Tex. Const.,
IV, -§ 11. as amended 1936. The Texas constitution in addition gives
legislature “power to regulate procedure before the board of pardons and
les."
South Carolina, an advisory pardon hoard hears petitions, “under such
3 and regulations as the general assembly may provide,” but the Governor
ot bound to adopt the board's recommendations, and apparently the legis
re’s power does not extend to prescribing rules to control the Governor.
. Const., art. IV, § 11; S. C. Code (1932), § 3431, et seq.
Cal. Const., art. VII, § 1; C010. Const., art. IV, § 7; Fla. Const., art. IV,
2; Ga. Const., art. V, § 1, par. XII; Idaho Const., art. IV, 5 7 ; Ill. Const.,
. V, § 13; Me. Const., art. V, part 1, § 11; Mich. Const., art. VI, § 9;
. Const., art. V, § 8; Nev. Const., art. V, § 14; N. Y. Const., art. IV, § 5;
C. Const., art. III, § 6; N. D. Const., art. III, § 76; Ohio Const., art. III,
1; S. D. Const., art. IV, § 5; Utah Const., art. VII, 5 12; Wis. Const.
48), art. V, § 6; Wyo. Const., art. IV, § 5. .
11 Montana, the legislature is authorized to “prescribe the sessxons of said
rd and regulate the proceedings thereof.” Mont. Const., art. VII, 5 9.

116

Asa matter of fact, however, such provisions hav
significance than might be thought. Thus probably
State would hold that the legislature “may prescrib
rules and regulations as to 'the manner of applyin
pardon,” even without constitutional authority so 10
the power of the executive to disregard the rules i
denied. Apparently the express authorization confe
greater power. It authorizes the legislature to pres
formalities to be complied with by the applicant 8“ a1
set up pardon boards to hold hearings and make re
mendations to the executive for the disposition of pa
applications,87 as several States have done”.88 But
regulations are held not to restrict the Governor’s powe
may act even though the application is not made

 

86See Rich v. Chamberlain, 104 Mich. 436, 446, 62 N. W. 584, 587
“It would clearly be competent for the legislature to provide as regu
that the petition or application should be under oath; that it _shoul
be submitted to the judge and prosecuting attorney for them to endorse
or attach thereto such statements as they might deem proper to make t
the merits of the application and designed to furnish the Governor i
tion upon which to base his action; that the testimony taken upon th
if it exists, should accompany the petition ; and that the testimony und
should be taken at the prison or elsewhere bearing upon the reasons u
the petition for pardon.”

87 Ibid. (3—2 decision).

88Advisory pardon boards have been created by statute in eight
States where the constitution gives the legislature power only to r
the manner of applying for pardons. Cal. Stat. 1915, p. 465; Cal
LaWS (Deering, 1931) Act 1908; Ga. Code (1933) §§ 77—301, 77~50
Rev. Stat. ch. 104a, § 3 ct seq., ch. 24a, §§ 35, 54; Mo. Laws 1921,
as amended by Laws 1933, p. 327; Ohio Code Ann. (ThrockmOrton,
§ 2211—7; N. Y. Consol. Laws (Cahill, 1930) ch. 18, § 116; N. C. Law
ch. 414; Wyo. Rev. Stat. Ann. (Courtright, 1931) § 80—102.

Such boards have also been created in the following States who
pardoning power is “subject to such rules and regulations as the legi
may prescribe.” Ind. Stat. Ann. (Burns. Supp. 1936) §§ 13—1301 to 1
Okla. Stat. (1931) ch. 17, art. 41, §§ 3264—3677; Wash. Laws 1935,

Of the States where the constitution does not expressly mention the
ture in connection with the pardoning power, only Tennessee has an a
pardon board created by statute. Tenn. Code Ann. (Williams, 1934) §
In Massachusetts the parole board acts in an advisory capacity in
cases, and in Vermont the Governor, by statute, may ask not mor
three supreme court judges to sit with him in pardon hearings. Mass.
Ann. (Michie, 1933) ch. 127, § 154; Vt. Pub. Laws (1934) §8886.

In Alabama, Delaware, Louisiana, Pennsylvania, South Carolin
Texas, advisory boards are provided for by the constitution. Ala.
art. IV, § 124; Del Const. art. VII, §1; La. Const. Ann. (Dart, 193
V, § 10; Pa. Const. art. IV, § 9; S. C. Const. art. IV, § 11; Tex. Con
IV, § 11, as amended 1936; Tex. Laws 1935, p. 1237. In Wisconsin, Go
LaFollette in 1935 created an advisory board without legislative pro
The same has been done by the Governor of Oklahoma, although 1
State a statute provides for a board. The statute is ignored and the
which actually functions is solely the creature of the Governor.

*1"; .‘x‘l )0" .1

n.
,—

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)1

no

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wan-483:5;

unit

117

quired‘;‘8.9"and may ignore the recommendations of such ad-
visory bOards.90 Such legislative regulations are considered
directory to applicants for pardon and those moving in their
behalf, prescribing a method by which an application
may be brought before the pardoning authorities, but the
latter may grant a hearing without such preliminary pro-
cedure and may grant a pardon without any application or
hearing. 91

Legislative requirements imposed on executive .—Sup-
pose, however, the statute eXpI essly provides that no pardon
shall be granted until and unless such requirements are
complied with? Some of the cases cited above have in-
dicated that if the statutes were to be construed thus to
restrict the Governor’s power instead of being addressed
merely to the applicant, they would be unconstitutional.92
But here the wording of the constitution may be important.
It has been held by the Arkansas court that under a con-
stitutional provision making the pardoning power subject
to ~ “such rules and regulations as shall be prescribed by
law,” a pardon would be void if granted in violation of a
statute prohibiting the Governor from granting pardons
except after publication of notice, etc.93

Equally serious a restriction on the free exercise of the
power is found in statutes which undertake to impose the
duty of publishing notice of application not upon the ap-
plicant but upon the Governor or some subordinate oflicer.
Such provisions are found not only in States where the
constitution authorizes the legislature to prescribe rules 94
(in which, under the Arkansas decision, they would be
valid), but also in several States where the constitution
only authorizes prescribing regulations as to the manner

89People v. Jenkins, 325 111. 372, 156 N. E. 290 (1927); In re Pardom'ng
Power of Governor and Goa-,ncil 85 Me. 547, 27 Atl. 463 (1892), In re Edy-
moin. 8 How. Prac. (N. Y.) 478 (1853); In re Moore, 4 Wyo. 98, 31 Pac. 980
1892).
;( 9°RichV. Chamberlain, 104 Mich. 436, 62 N. W. 584 (1895).

91 In re Maore, 4 Wyo. 98, 31 Pac. 980 (1892).
, ’3 In re Pardom’ng Power of Governor and Caunoil, 85 Me. 547, 27 Atl.
463 (1892); In re Edymoin, 8 How. Prac. (N. Y.) 478 (1853).

93Horton v. Gillespie, 170 Ark. 107, 279 S. W. 1020 (1926); Nelson v.
Hall, 171 Ark. 683; 285 S. W. 386 (1926).

“Neb. Comp. Stat. (1929) § 29—2606.

118

of applying for pardon,95 and also where the legisl
is not given any express power in the matter whate
Whether a pardon granted in violation of such require
would be void has not been decided in most of these S
Legislation making certain types of ofl'enders inel'
for pardon—In a few States the legislatures have u
taken to forbid the Governor to pardon certain typ
offenders until a specified part of the sentence has
served, or even to forbid the pardoning of certain typ
offenders entirely.97 None of these restrictive provi
have been tested in the courts, but it would seem the
unconstitutional; it has been repeatedly said that the l
lature may not limit the efiect of a pardon “nor ex
from its exercise any class of offenders.” 98 -
Constitutional power to prescribe rules and regulatio
Constitutional provisions granting the pardoning pow
the Governor or to a board “under such rules and re
tions as shall be prescribed by law,” would seem to
the legislature a somewhat greater scope of control
would otherwise be the case. At least one form of co
seems valid under such a provision which would be in
in other States—restrictions forbidding the executi
grant any clemency unless and until requirements for
lication and notice are complied with.99 Arizona has
even further, and upheld a statute prohibiting the Gov

95 N. D. Comp. Laws Ann. (1913) § 11105 (clerk of pardon board
notice of time and place of hearing to judge and prosecutor); Ohio
Ann. (Throckmorton, 1936) § 2211—8 (board must notify judge and
cutor); Utah Rev. Stat. Ann. (1935) §§ 67—0—5, 67—0~9 (board must
judge, prosecutor, and warden).

9° La. Code Crim. Proc. Ann. (Dart, 1932) art. 574 (board must
prosecutor); Mass. Laws Ann. (Michie, 1933) ch. 127, §§ 153, 154 (exe
secretary must notify attorney general and prosecutor); Tenn. Code
(Williams, 1934) § 11817 (board must notify prosecutor and judge)
Pub. Laws (1934) § 8885 (Governor must notify prosecutor of hearin

97Ga. Code (1933) § 77—503 (no conditional pardon “shall be grant,
prisoner until he shall have served at least the minimum sentence fix
law”); S. D. Comp. Laws (1929) § 5404 (paroled life-termers ma
be pardoned until after 5 years’ faithful compliance with their parole te
Ore. Code Ann. (1930) § 13—1802 (persons convicted of assault with a
weapon may be pardoned only if the judgment was a fine and the fine p
Ala. Code Ann. (Michie, 1928) § 5129 (death sentence may be commut
imprisonment at hard labor “for not less than 2 years”).

99 See note 4, post.

99Horton v. Gillespie, 170 Ark 107, 279 S. W. 1020 (1926); Hutt
MoOleskey, 132 Ark. 391, 200 S. W. 1032 (1918) ; State v. Dunning, 9 In
(1857). The attorney general of Wisconsin has also stated that a p
granted without compliance with statutory provisions would be null and

119

granting any clemency except upon the favorable rec-
endation of a pardon board created by the statute.1
ven such broad power to prescribe rules and regulations,
ever, does not give the legislature unlimited control.
ile the legislature has “the right to regulate the exercise
he pardon; to throw checks and guards around it, per-
s, to prevent its abuse,” yet “they surely have no power
eprive the Governor of the pardoning power by neglect-
to regulate it, or by passing laws to prohibit it.” 2 “The
iority to regulate and restrict does not confer the power
brogate the executive power to pardon.” 3 Such a con-
itional provision does not subject the pardoning power
gislative control, either to limit the effect of a pardon or
xclude from its operation any class of offenses,4 and
efore the legislature may not take away from the Gover-
the power to grant an absolute or conditional pardon at
time after sentence has been pronounced.5 Under this
ral principle it has been held in New Mexico and Wash-
on that a law requiring all applications for executive
ency to be submitted to a board of pardons for its rec-
endation, and prohibiting the Governor from granting
clemency unless recommended by the board, would be
onstitutional.6 In Arizona, as already said, such an act

upheld.7

a person so pardoned would be subject to reincarceration and the

mar subject to impeachment. Opinions Att’y Gen. Wis. (1921) 89. On

other hand, the attorney general of Oregon has advised the Governor
such requirements are not mandatory and that the Governor may pardon
mit fines even though the statutory requirements of notice to the trial
and prosecuting attorney are not complied with. Rep. Att’y Gen. Ore-
1926—1928, p. 54. In practice, the requirements are often disregarded in

on.

aird v. Sims, 16 Ariz. 521, 147 Pac. 738 (1915). But see post, note 6.

aldwz’n v. Scoggin, 15 Ark. 427, 432 (1855).

tate v. Jenkins, 20 Wash. 78, 79, 54 Pac. 765, 766 (1898).

ee Fehl v. Martin, 155 Ore. 455, 64 P. (2d) 631 (1937). It is agreed
in jurisdictions where the constitution gives the legislature no express

r to regulate, it can neither limit the effect of a pardon nor exclude from
ercise any class of offenders. Ex parte Garland, 4 Wall. 333, 380 (1866) ;

. v. Klein, 13 Wall. 128, 141 (1872) ; Diehl v. Rodgers, 169 Pa. St. 316,
32 At]. 424, 426 (1895). The same is true where the constitution au-

zes the legislature only to regulate the manner of applying for pardons.

s v. McKeeby, 5 Nev. 369 (1870).

cc Fehl v. Martin, 155 Ore. 455, 64 P. (2d) 631 (1937).

a: parte Bustillos, 26 N. M. 449, 194 Pac. 886 (1920) ; State v. Jenkins,
ash. 78. 54 Fee. 765 (1898).

aird v. Sims, 16 Ariz. 521, 147 Pac. 738 (1915).

7 3115—39—von. m 9

 

120

In Oklahoma, the court has even mOre drastically 1'
the power of the legislature under such a constitutional
vision, holding unconstitutional as an invasion of the
ernor’s power an act creating a pardon and parole b0
and providing that “no pardons nor paroles shall be gra
by the Governor until he shall present the matter to
obtain the advice of the Board of Pardons and Par
although the Governor was not restricted from gran
any pardons even though the board had recommende
jection.‘3 The constitutional provision that the Gover
power was to be exercised “upon such conditions and
such restrictions and limitations as may be prescribe
law,” was said by the court to give the legislature
power to provide “how applications may be made.”
other words, the court construed this constitutional pr
sion to have no broader meaning than that found in
States mentioned above, granting the legislature powe
make regulations only with respect to the manner of ap
ing for pardon.9 A similar provision in the Iowa code
never been questioned.10 The seven States other than I
and Arizona in which the Governor is prohibited from
ing except upon a favorable recommendation of the par
board (Delaware, Louisiana, Montana, Pennsylvania, S
Dakota, and Texas) or at least until the board has ma
recommendation, favorable or unfavorable (Alabama),
set up such restrictions by their constitutions, and no
mere legislative act.

Constitutional power to prescribe restrictions.—The3
sas constitution instead of employing the words “rules
regulations,” provides that the legislature may presc
“regulations and restrictions”—a somewhat broader ph
“The word ‘regulation’ used in the constitutional provi
pertaining to the pardoning power,” the Kansas court
said, “would authorize the legislature to establish a pr

“Em parte Ridley, 3 Okla. Cr. 350, 106 Pac. 549 (1910).

9 The court quoted with approval a Michigan case, Rich v. Chamberlain,
Mich. 436, 62 N. W. 584 (1895), but failed to point out that the Mich
constitution under which that case was decided made the Governor’s pardo
power subject only to “regulations provided by law, relative to the mann
applying for pardons.”

1° Iowa Code (1935), § 3817, providing that “no pardon or commutatio
sentence shall be granted by the Governor until he shall have presented
matter to, and obtained the advice of, the board of parole."

121

dure for the granting of pardons without compliance with
which a pardon could not be granted.” But in addition the
framers of the constitution used the word “restric-
tions * * * ” which was no doubt intended to mean a
limitation upon the classes of crimes for which pardons
could be granted or the time with reference to the commis-
sion of a crime or the trial of the accused therefor, and the
result is that the sweeping pardoning power vested in the
Governor can be exercised only in accordance with such re-
strictions and regulations as provided by law.11 It was ac-
cordingly held that a commutation granted without the no-
tice required by statute was void.

For the legislature to attempt to vest the pardoning power
in a board, where the constitution vests it in the Governor,
would, of course, be void. The States which have vested
the power in a board have done so by constitutional provi-
sion and not by mere legislation.12

Summary—We may summarize the discussion of the va-
lidity of the principal forms of legislative control as fol-
lows:

Requirements addressed to the Valid in all States.
applicant, as to publishing no-
tice, etc., but not restricting
power of the executive.

Creation of pardon boards, to aid Do.

Governor by hearing applica-
tions and making recommenda-
tions, but not restricting Gov-
ernor’s power to act irrespective
of the board.

Requirements as to notice, pub- Valid only under constitutions
lication, etc., prohibiting Gov- giving legislature power to
ernor from acting unless such make rules and regulations.
requirements are complied with.

nJamison. v. Flanner, 116 Kan. 624. 645, 228 Pac. 82, 92 (1924).

12Fla. Const. art. IV, § 12; Idaho Const. art. IV, 5 7; Minn. Const. art. V,
i 4, as amended; Minn. Stat. (Mason, 1927) 5 10779; Neb. Const. art. IV,
i 13; Neb. Comp. Stat. (1929) §§ 29-2602, 29-2604; Nev. Const. art. V,
5 14; En: parts Janes, 1 Nev. 319 (1865) ; N. J. Const. art. V, par. 10; N. D.
Const. art. 3, § 76; Utah Const. art. VII, § 12; Utah Rev. Stat. Ann. (1933)
§ 67—0—1; State ea: rel. BishOp v. Board of Corrections, 16 Utah 478, 52 Pac.
1090 (1898). In Connecticut, the pardon board is created by statute, but the
Connecticut coustitution does not give the pardoning power to the Governor.
See ante, Historical Development.

122

Acts creating pardon boards and Invalid in all States not auth

prohibiting exercise of power ing legislature to prescribe
by Governor except upon fav- and regulations, and als
orable recommendation of the most of these.

board.

The extent to which the legislature may define and res
the legal effect of a pardon will be considered in Cha
IX, “The Effect of a Pardon.”

JUDICIAL EXERCISE OF THE PARDON POWER

Formerly in England, a promise of pardon came fro
court, and practically the granting of pardons was
trolled by the courts. It was the course of things
pardons were recommended by the judges.13 In this 0
try this practice has never existed.” As a general princ
the courts have no power to grant clemency.15 Argum
for relief because of mitigating circumstances,16 or the
culiar hardship of the particular case 17 must be addre
not to the courts but to the pardoning authority. An
pellate court cannot grant relief in the absence of 1
error in the case.18 “Prerogatives of mercy are for
pardoning power and not for the courts.” 19

Suspension of sentence—The question of judicial inva
of the pardoning prerogative has-arisen most often in
nection with suspensions of sentence. It is generally ag
that a court has power to delay pronouncing of judg
for a. reasonable time, in order to hear motions for new t

13 The granting of pardons to approvers, for example, was handled b
judges.

14 Newton v. State, 15 Fla. 610 (1876).

15 Ea: parte United States, 242 U. S. 27 (1916) ; Shaw v. State, 21 Ala.
887, 110 So. 168, cert. denied, 215 Ala. 239, 110 So. 169 (1926); Newt
State, 15 Fla. 610 (1876); Planer v. State, 11 Neb. 547, 574 (1881)
parte Howard, 17 N. H. 545 (1845); People v. Warder, 120 Misc. 94
N. Y. Supp. 543 (1922); People v. Morissette, 20 How. Prac. (N. Y.)
(1860); Ea: parte Eley, 9 Okla. Cr. 76, 130 Pac. 821 (1913); Ex
MoOlure, 6 Okla. Cr. 241, 118 Pac. 591 (1911); State v. Dalton, 109
644, 72 S. W. 456 (1903); Snodgrass v. State, 67 Tex. Cr. 615, 150
162 (1912).

1° January v. State, 16 Okla. 166, 181 Pac. 514 (1919).

ll"People v. Bennett, 205 Mich. 95, 171 N. W. 363 (1919).

18Shaw v. State, 21 Ala. App. 387, 110 So. 168, cert. denied, 215 Ala.
110 So. 169 (1926); Comm. v. Waite, 5 Mass. 261, 264 (1808); Janua
State, 16 Okla. Cr. 166, 181 Pac. 514 (1919).

1° See State ea rel. Gary V. Lang-urn, 112 Minn. 121, 124, 127 N. W.
«466 (1910).

123

or to give the defendant time to perfect an appeal, or to
present a petition for pardon, or in other cases where such
suspension is necessary and proper.20 Similarly it is agreed
that the court may grant a temporary suspension of the
execution of sentence,21 and this even though it is admitted
that such a suspension of execution is the same as a re-
prieve,22 which is almost universally held to be included
in the pardoning power; 23 no constitutional objection is
generally raised to the concurrent exercise of this power b y
the executive and the courts.24

Indefinite suspensions of the imposition or the execution
of sentence, however, have been the subject of much more
dispute. The cases are in conflict not only as to whether
the courts have such power, but also as to the grounds upon
which the power is upheld or denied. Two questions which
are often confused should be distinguished: (1) do the
courts have inherent power to suspend either imposition or
execution of sentence as part of the judicial function, apart
from statutes? (2) whether the power is exercised with or
without statutory authority, is it an unconstitutional inva-
sion of the pardoning power of the executive?

The first question does not involve the pardoning power
and need not delay us here. It is suflicient to say that while
there are a number of cases holding that courts have an
inherent power indefinitely to suspend either imposition or

 

2oParker v. State, 135 Ind. 534, 35 N. E. 179, 23 L. R. A. 859 (1893);
State v. Voss, 80 Iowa 467, 45 N. W. 898 (1890) ; In re Lebowitch, 235 Mass.
357, 126 N. E. 831 (1920); People v. Kennedy, 58 Mich. 372, 376 (1885):
People v. Morrissette, 20 How. Prac. (N. Y.) 118 (1860).

21State ea: rel. Gary V. Langurn, 112 Minn. 121, 127 N. W. 465 (1910);
Ex parte Howard, 17 N. H. 545 (1845); State v. Abbott, 87 S. C. 466, 70
S. E. 6 (1911). Sometimes statutes specifically provide that when a de-
fendant is sentenced to death or to imprisonment in the penitentiary, the
presiding judge, if of the opinion that the defendant should be pardoned, may
postpone execution so as to permit application to the Governor. See Ala.
Code Ann. (Michie, 1928) § 5321.

22Parker v. State, 35 Ind. 534, 35 N. E. 179, 23 L. R. A. 859 (1893)-
Such suspensions are called reprieves by the common law writers. 2 Hale P.
C. 412; 4 Bl. Comm. 394.

23 See ch. VII.

3‘ In 1828, Governor DeWitt Clinton of New York argued that “the CODSti‘
tution entrusts the Governor with power over reprieves and 1331130118, and
I think that * * * it is exclusive. The power claimed in this case by the
court * “ ' has never been exercised before in this country.” See
Miller’s (Jase, 9 Cow. (N. Y.) 730 (1828). Cf. Carnal v. People, 1 Park Cr.
(N. .Y) 262 (1851).

124:

execution of sentence,25 the authorities seem to agree
the better rule is that such power, if it exists at all,
rest upon statutory authorization?6 ' The inherent powe
try cases and apply the law does not beget inherentl
discretion to refuse to do so.

The second question, whether a statute conferring
power upon the courts is unconstitutional as invading
executive pardoning power, must be answered in the n
tive.” It is true that there are many cases holding
opposite.28 If a court suspends sentence, it has been sai
“may in this way indirectly grant a reprieve, commu
penalty, or remit any part of a sentence, and thus pr
cally exercise powers which the constitution confers ex
sively upon the Governor.” 2" “No doubt judges have
this sometimes * * * but this is no reason for as

, '5 State v. Drew, 75 N. H. 402, 74 At]. 875 (1909); Sylvester v.
65 N. H. 193 (1889); Philpot v. State, 65 N. H. 429 (1889); Gem-ma
Osborne, 79 N. J. Eq. 430, 82 Atl. 434 (1911) ; State v. Addy, 43 N. J. L
(1881) ; People v. Graves, 2 N. Y. Cr. 123, 127 (1884) ; People v. Harrin
3 N. Y. Cr. 139, 140 (1884); In re Hinson, 156 N. C. 250, 72 S. E.
(1911); State v. Hatlep, 110 N. C. 522, 14 S. E. 751 (1892) ; State v. H
151 N. C. 687, 65 S. E. 1011 (1909) ; State v. Crook, 115 N. C. 760, 20
513 (1894); Comm. em rel. Nuber v. Keeper, 6 Pa. Super. 420 (1898);
loughby, Constitutional Law of the United States, vol. 1, § 974.

”Em parts United States, 242 U. S. 27 (1916) ; Watson v. State. 58
Cr. 448. 54 P. (2d) 1097 (1936) ; State v. Abbott, 87 S. C. 466, 70 S.
33 L. R. A. (N. S.) 112, Ann. Cas. 1912 B, 1189 (1910) ; Spencer v. State,
Tenn. 64, 140 S. W. 597 (1911).

97 See cases collected in 26 A. L. R. 406. A statute authorizing the c
to suspend sentences for a definite time (1 year) has also been up
Barrett v. State, 18 Ala. App. 246, 90 So. 13, cert. denied, 206 Ala. 69
So. 925 (1921). So, too, have statutes authorizing probation. Belde
Hugo, 88 Conn. 500, 91 At]. 369 (1914); State v. Starwick, 119 Wash.
206 Fee. 29, 26 A. L. R. 393 (1922).

28Montgomery v. State, 231 Ala. 1, 163 So. 365 (1935) ; Snyder v. Stat
Ala. App. 188, 90 So. 40 (1921) ; Clarke v. State, 20 Ala. App. 472, 102 So.
(1825); Vinson v. State, 16 Ala. App. 536, 79 So. 316 (1918); Braban.
Comm, 157 Ky. 180, 162 S. W. 786 (1914) ; State v. Jackson, 143 Miss.
109 So. 724 (1926) ; Fuller v. State, 160 Miss. 811, 57 So. 806 (1912) ;
em rel. Summerfleld v. Moran, 43 Nev. 150, 182 Pac. 927 (1919); Ea: p
Clendenning, 22 Okla. 116, 97 Pac. 650 (1908) ; State ea: rel. Payne v. A
son, 43 S. D. 630. 181 N. W. 839 (1921); Ea: parte Dunn, 50 S. D.
208 N. W. 224 (1926) (suspension of imposition of sentence); State em
Horner v. Taylor, 47 S. D. 124, 196 N. W. 494 (1923) (suspension of ex
tion); Friske v. Circuit Court, 51 S. D. 415, 214 N. W. 812 (1927) (sus
sion after partial execution) ; In re Flint, 25 Utah 338, 71 Pac. 531 (19
Some cases are unclear whether the power is denied because not conferre
statute or because it would be unconstitutional to confer such power. Ma
v. People, 69 C010. 60, 168 Pac. 1171 (1917); People v. Stickle, 156
557, 121 N. W. 497 (1909); People v. Morrissette, 20 How. Prac. (N.
118 (1860).

”Neal v. State, 104 Ga. 509, 511, 30 S. E. 858, 859 (1898).

125

a repetition of the wrong; it is rather a reason for being
specially careful and particular not to invite it, lest by
and by it come to be understood that the power to pardon,
instead of being limited to one tribunal, is confided to many,
and that the pressure of influence and respectability may
be as properly employed with a judge to prevent sentence,
as many seem to think it may be with a governor to procure
a formal pardon.” 3°

The answers to these arguments are various. It is pointed
out that the courts have power to acquit, and power to sus-
pend sentence should not be considered any greater in-
vasion of the pardoning power than is the undoubted power
of the courts to acquit.31 The better answer, however,
would seem to be that a suspension of sentence, provided for
by statute is not a setting aside of the law at all, but is
the imposing of a legal sentence.32 The definition of crimes
and punishments is a legislative function. The legislature
has provided that in certain cases the convicted person shall
not be incarcerated or fined, but shall be held under surveil-
lance of the court and the law. “It is much like giving a
peace bond. It is much in common with our statutes
against habitual offenders, but includes more of the element
of mercy. The prisoner is told to go and to sin no more,
but that if he does sin again, his punishment shall be that
which was awarded for the first oflense.” 33 This reasoning
applies to suspensions both of imposition and of execution
of sentence. Both must be entered as part of original sen-
tence, either at the time of judgment or within the time that
the original sentence is open to amendment (usually the
same term of court). To permit either after that time is
held to be an invasion of the executive clemency power.84

To hold that such statutes are unconstitutional would
render impossible not only suspension of sentence but also
probation. These devices are not only socially desirable but

80People v. Brown, 54 Mich. 15, 27 (1884).

81State v. Addy, 43 N. J. L. 113, 114 (1881); People v. Mueller, 15 Ch.
Leg. N. 364 (1883).

32Baker v. State, 70 Tex. Cr. 618, 158 S. W. 998 (1913); Cools v. State,
73 Tex. Cr. 548, 165 S. W. 573 (1914).

38A. A. Bruce, The Power to Suspend a Criminal Sentence for an Indefinite
Period or Du‘ring Good Behavior, 6 Min. Law Rev. 363, 377.

“State v. Smith, 173 Ind. 388, 90 N. E. 607 (1909).

126

necessary, and to outlaw them all would be both const
tionally unsound and socially disastrous.

Commutation of sentence—During the term of cour
which a sentence is imposed, the judge may amend the
tence by shortening the term even though the prisoner
been committed and has served part of his term. “To red
sentence by amendment alters the terms of the judgment
self and is a judicial act as much as the imposition of
tence in the first instance.” 35 However, after expiratio
the term of court the court may not thus amend the s
tence. To do so would constitute the granting of comm
tion which can be done only by the executive.36 - This ex
tive power can neither be exercised by the courts as an
herently judicial function, nor can it be given to the co
by statute.87

A reduction of sentence by an appellate court is no
commutation within the clemency power. “The act of
ducing the sentence and rendering a new one in accorda
with the evidence is in no sense a commutation of
former sentence.” It “is a matter of right upon which
prisoner may insist when that imposed is in excess of w
the evidence will justify.” 38

Remission of fines and forfeitures.—What has just b
said of commutations of sentence applies also to remiss
of fines and forfeitures. A sentence of fine or forfeitur
subject to alteration by the court during the term in wh
such sentence is rendered,39 but to do so afterward “is
exercise of the pardoning power, which appertains exc
sively to the executive.” 4°

Judicial panda—The courts may not order prisoners
be discharged from jail, at least where there is not a va
suspension of sentence,41 and this is true even in case of

35 U. S. v. Benz, 282 U. S. 304 (1931).

3" Sayre v. 00mm., 194 Ky. 338, 238 S. W. 737 (1922).

37 In re Opinion of the Justices, 14 Mass. 472 (1787).

8‘F’Anderson v. State, 26 Neb. 387, 392, 41 N. W. 951, 953 (1889); Pal
v. State, 70 Neb. 136, 97 N. W. 235, 236 (1903) ; contra: Barney v. State,
Neb. 515, 525 (1896); Fanton v. State, 50 Neb. 351, 354 (1897). See
Harv. Law Rev. 279 (1904).

3x92 Hawk. P. 0., ch. 48, § 25. \

‘0 Lackey v. State, 14 Tex. 400, 401 (1855).

41 Saint v. Merauar, 163 La. 242, 111 So. 691 (1927) ; Em part6 Eley, 9 01
Cr. 76, 130 Pac. 821 (1913); Ea: parrte McClure, 6 Okla. Cr. 241, 118
591 (1911).

127

ness of the prisoner.42 In a few States the courts are by
statute authorized to “parole” prisonersxt8 We have already
seen that parole is sometimes said to be in the nature of a
conditional pardon and therefore a part of the executive
clemency power.“ Under this view, this judicial parole
might be held to be an invasion of the executive pardoning
power.“5 But the validity of these statutes has been upheld
or assumed in most of these States,46 although the Kentucky
court has held such an act unconstitutional.47 A Texas stat-
ute which authorized trial courts not only to suspend execu-
tion of sentence, but also to annul the conviction upon ap-
plication of the defendant, after a period double the sentence
fixed by the jury if the defendant had not been guilty of
any other felony in the meantime, has been held unconsti- '
tutional as an attempt to confer a pardoning power on the
courts:-18

Judz'oz'al pardon of contempt of court—There may be
some question whether the courts may pardon persons con-
victed of contempt of court. If contempt is not a criminal
offense pardonable by the executive, then it could at least
be argued that a judicial pardon would not invade any
power of the executive but must reside in the courts if it
exists at all.49 , But since the decision of the United States
Supreme Court in Ea: part6 Grossman 5° in 1925, the tend-
ency’ seems to be to hold that criminal contempts are within
the pardoning power of the executive.51 If so, there is no
more reason why the court. should also have power to par-

“ HOpkins v. North, 151 Md. 553, 135 At]. 367 (1926).

”Iowa Code (1935) §§ 3788, 3800, 3801, 3805, 3806; Kan. Gen. Stat. (Gar-
rick, 1935) §§ 62-2201 et seq. ; Miss. Code Ann. (1930) § 7254 (permitting
judges to parole inmates of the industrial school); Pa. Stat. Ann. (Purdon,
1930) tit. 61, § 314 (authorizing courts to release on parole inmates of county
jails, workhouses or houses of correction). In Kansas, the court may also
grant a final discharge from such parole. Mikesell v. Board of Commissioners,
82 Kan. 502, 108 Pac. 829 (1910).

“Ante, p. 105.

“Ea: part6 McClure, 6 Okla. Cr. 241, 118 Pac. 591 (1911).

4° Mikesell v. Board of COmmissz'oners, 82 Kan. 502, 108 Pac. 829 (1910);
State v. Collins, 225 M0. 633, 125 S. W. 465 (1910) ; Com-m. v. Arbach, 113
Pa. Super. 137, 172 Atl. 311 (1934).

"Huggins v. Caldwell, 3 S. W. (2d) 1101 (Ky. 1928).

“Snodgrass v. State, 67 Tex. Cr. 615, 648, 150 S. W. 162, 178 (1912).

4’ Taylor v. Goodrich, 40 S. W. (Tex. Civ. App.) 515, 524 (1897) ; and see
The Laura, 114 U. S. 411, 413 (1885).

50267 U. S. 87.

51 See post, p. 140.

128

don in such cases than in any other.‘52 During the ter
which imposed, a sentence for contempt may, of cou
vacated, just as any other judgment.”

Such criminal contempts are distinguished by the
in Em part6 Grossmam from civil contempts, which are
of the remedy to secure the rights of private litigants,
which cannot be pardoned by the executive. The court
early English authorities to “show that long before
constitution, a distinction had been recognized at com
law between the effect of a king’s pardon to wipe ou
effect of a sentence for contempt insofar as it had been
posed to punish the contemnor for violating the dignit
the court and the king, in the public interest and its i
cacy to halt or interfere with the remedial part of the co
order necessary to secure the rights of the injured sui

Reinstatement of disbarred attorneys—A pardon doe
have the effect of reinstating a disbarred attorney-at—h
Reinstatement is a matter for the court, and is not an i
sion of the executive pardoning power.55

JUDICIAL INTERFERENCE WITH THE PARDONING POW

The exercise of executive discretion in granting or
fusing a pardon cannot be reviewed by the courts.“6 “
attempt of the courts to interfere with the governor in
exercise of the pardoning power would be manifest usu
tion of authority.” ‘7

Thus where a mayor has power to pardon persons in
city prison “when the physical condition of such perso
such that a confinement would endanger the life of 8
person or the life or health of any other person confine
such prison,” the mayor is the judge of whether these
ditions exist, and so long as he acts honestly, even tho
mistakenly, the courts cannot review his discretion in gr

“Butte <6 Boston Oonsol. Min. 00. v. Montana Ore Purchasing 00., 158
131 (1907) (fine for contempt cannot be remitted by court after term
passed) : In re Mullee, 7 Blatchf. 23, Fed. Cas. No. 9,911 (1869).

”Fischer v. Hayes, 6 Fed. 63 (1881).

54 See post p. 285, note 77.

‘5 See post pp. 285-287.

“Jackson 17. Rose, 223 Ky. 285. 3 S. W. (2d) 641 (1928).

IWKnapp v. Thomas, 39 Ohio St. 377, 391 (1883); Ex parte Cramp,
Okla. Cr. 133, 135 Pac. 428 (1913).

129

a pardon.58 So, too, the courts cannot mandamus a
on board to grant a rehearing on a petition for
on.”
ecommendations of judges and juries to the governor
mercy have only such Weight as the governor sees fit
give them; the question rests entirely within his
reticn.“o -

rather unusual Pennsylvania act, passed in 1921, pro-
s that prisoners sentenced by a criminal court in a
ty of the first class to a reformatory or house of cor-
'on for misdemeanor punishable by imprisonment in a
e or county prison, should not be released by pardon
pt upon order of the court making the commitment.61
ough there have been no court decisions interpreting
act, it would seem an unconstitutional limitation upon
pardoning power.

e Governor’s motive in granting a pardon may not be
ired into by the courts. Thus, the fact that a pardon
granted to allow the person to testify against another
inal is immaterial.62
rbitrary and unreasonable exercise of the pardoning
er does not authorize the courts to decline to give effect
pardon,“ and this even where a third person is injured
eby. In a Tennessee case, decided in 1871, the State had
d out its prison labor to a private contractor for a

sum. Within two weeks thereafter the Governor
oned 350 convicts, depriving the lessee of three-fourths
e convicts whose labor he had hired. The court refused
rant any relief."‘1
regularities in the procedure by which the pardon was
ted or in the pardon itself do not authorize a court
eclare apardon invalid, at least where these irregulari-

n re Monroe, 46 Fed. 52 (1891).

tate v. Mehojovich, 119 La. 791, 44 So. 481 (1907) (“The ruling of the
was an exercise of quasi judicial discretion, not subject to appeal to or
on by this court").

piniOn of the Justices, 120 Mass. 600 (1876).

a. Stat. Ann. (Purdon, 1930) tit. 19, § 1023.

a: parte Rice, 72 Tex. Cr. 587, 162 S. W. 891 (1913); Locklin v. State
Cr.), 75 S. W. 305 (1903) ; Martin v. State, 21 Tex. App. 1, 17 S. W.

(1886).

ee Ea: parte Cramp, 10 Okla. Cr. 133. 135 Pac. 428 (1913).

tate v. Ward, 9 Heisk (Tenn.) 100 (1871).

130

ties are as to requirements not considered mandat
“We cannot inquire whether the pardoning power has
exercised judiciously, or whether the proceedings pr
inary to the granting of the pardon were irregular, i
such were necessary.” “6 Thus the courts will not decl
pardon void for failure to comply with the require
that the Governor keep public records of all pa
granted.‘37

)Vhere a general act of proclamation of pardon
broadly worded as to include a certain person, the e
have no power to exclude him even though it migl
shown that his case had not been contemplated and wa
intended to be included. In a North Carolina case f0
ing the Civil War, a defendant had been convicted
later escaped. Thereafter the legislature passed a
granting amnesty to all persons except Stephen Lo
On recapture, the defendant pleaded this act of am
The court held that even though it were admitted tha
members of the legislature who voted for the act
failed to except the prisoner along with Stephen Lo
because they believed that after the prisoner’s esca
had been killed, yet “this mistake or omission cannot b
rected by the action of a coordinate branch of the go
ment. The court of equity may require a deed to b
executed on the ground of ignorance or mistake, bu
judiciary has no power of that kind in respect to 211
of the General Assembly. So the prisoner can avail
self of the general words of the statute.” 68

However, where the validity of a pardon is in
tion, the courts may decide such question. Thus, wh
is contended that mandatory provisions have not been
plied with, the courts will hold a pardon invalid;
example, where a pardon to be valid must be in wri
countersigned and sealed with the great seal of the

6“Hester v. Comm.J 85 Pa. St. 139 (1877). See also 00mm. v. A
Pa. St. 53 (1862).

00 See In re Moore, 4 Wyo. 98, 31 Pac. 980, 982 (1892).

“Ea: part0 Reno, 66 M0. 266, 27 Am. Rep. 337 (1877).

8”State v. Apnlcwhitc, 75 N. C. 175 (1876). See also In re Great
4 Sawy. 487, Fed. Gas. No. 5,741 (1864).

131

ardon not so executed is a nullity.69 So also it .has been
d that where the State constitution provides that the
cloning power shall be subject to “such rules and regula-
ns as shall be prescribed by law,” and the legislature by
T prescribes that the Governor shall not grant any par-
1 until requirements of publishing notice, etc., are com-
ed with, a pardon granted in violation of such require-
nts is void, and the court has the duty to inquise whether
statute was complied with.70 A court of Chancery may
reform an instrument so defective by incorporating
rein necessary recitals which have been omitted.71
nder certain circumstances, it may be necessary for a
1rt to determine whether the person granting the pardon
s legally authorized to do so. Where the right to the
ce of Governor is contested, for example, it may be neces—
y for the court to decide whether a pardon issued by one
the contestants was valid as issued by the legal Gov-
or of the State.72 So also under the rule that in the
ence of the Governor and Lieutenant Governor assumes
oflice, the court may have to determine whether a par—
signed by the Lieutenant Governor was valid or
ether the Governor was in the State at the time of sign-
.73 Similarly, it may be necessary for the court to decide
ether the person signing the pardon was otherwise in-
acitated at the time, as by impeachment or insanity.
vernor Sulzer, of New York, pending impeachment pro-
dings, granted a pardon. On habeas corpus proceedings
the person to whom this pardon was granted to secure
ase on the strength thereof, it was held that the court
jurisdiction to adjudge that the pardon was void be-
se the constitution provides that in case of impeach-
nt the Governor’s duties devolve upon the Lieutenant

Ea: part6 Jones, 25 Okla. Cr. 347, 220 Pac. 978 (1923). But where a
on is released on such a defective pardon, the State is estopped from
rting its invalidity and attempting to reincarcerate the person after a
0d of almost 2 years. Em part6 Rasmussen, 31 Okla. Cr. 266, 238 Pac.
(1925).

HortOn v. Gillespie, 170 Ark. 107, 279 S. W. 1020 (1926).

Nelson v. Hall, 171 Ark. 683, 285 S. W. 386 (1926).

Jackson v. Rose, 223 Ky. 285, 3 S. W. (2d) 641 (1928): Powers v.
m., 110 Ky. 386, 61 S. W. 735, 23 Ky. L. 146, 53 L. R. A. 245 (1901);
arts Norris, 8 S. C. 408 (1876) ; Ea? parts Smith, 8 S. C. 495 (1876).

En) part6 Crump, 10 Okla. Cr. 133, 135 Pac. 438 (1913).

132

Governor, and therefore the Governor was under a
ability."

One important ground upon which the courts may h
pardon invalid is that of fraud. Undoubtedly the c
have power to set aside a pardon on the ground that i
obtained by misrepresentation or other fraud, alth
there is a conflict of opinion Whether this can be do
collateral attack or only upon a direct equitable pro
ing for that purpose. This whole question is discuss
Chapter V.

 

7‘ People em rel. Robin v. Hayes, 82 Misc. 165, 143 N. Y. Supp. 3
N. Y. Crim. R. 226 (1913), afl’d, 163 App. Div. 725. 149‘N. Y. Sup
N. Y. Crim. R. 106 (1914), appeal dismissed, 212 N. Y. 603. 106 N. E
(1914). See also Em parte Jones, 25 Okla. Cr. 347, 220 Pac. 978
Where a convict sought release on a pardon granted by Governor
who before the case was tried had been impeached for abuse of the p
ing power. The question whether the court should declare the pard
valid for this reason was'obviated by the fact that the pardon had no
sealed. The court held that a pardon lacking a seal was a
Thereafter, the prisoner sought a writ of mandamus to compel the sec
of state to attest and aflix a seal to the document. It was hel
since a pardon was a mere matter of grace, to which a convict h
legal right, the petitioner could not maintain an action in his own
in the matter. Jones v. Snead, 101 Okla. 295, 225 Pac. 700 (1925).

CHAPTER 1V

LIMITATIONS ON THE PARDONIN G POWER

Even the most absolute monarchs have commonly re-
stricted their own power to pardon. Fearing his own weak-
ness, the despot limits his absolute power that he may not
be entrapped or seduced into granting a pardon for dis-
obedience to his commands. Under some of the more
tyrannical of the Roman emperors it was a capital ofiense
to sue for a pardon; and a traveler in Persia of the seven-
teenth century reported that the same was true there.1

Self-governing peoples commonly limit the power by,
their constitutions, in order that this discretionary power
he kept within certain bounds, determined in advance.

In addition to the provisions authorizing the legislature
to prescribe rules and regulations, discussed in the previous
chapter, American constitutional provisions conferring the
pardoning power upon the executive commonly contain two
other express limitations:

(1) Treason or cases of impeachment, or both, are usu-
ally excepted.

(2) The Governor is usually required to report to the
legislature all cases of clemency granted.

Moreover, certain other limitations have been held by the
courts to inhere in the pardoning power even though not
expressed; e. g., that a pardon cannot prejudice private
rights of third persons. Finally, gross abuse of the par-
doning power may be ground for impeachment.

OFFENSES PARDONABLE

English limitatiom.—There are very few restrictions on
the pardoning power of the King of England. Restrictions
adopted in the past have for the most part no significance
today. The real check upon the power today is not legal

1 Lieber, Civil Liberty and Self-Government, pp. 432-433.
(133)

134

but political. The power is exercised for the King by
Home Secretary, who may have to answer in the Hous
Commons for the exercise that he makes of it.

A pardon may be granted before or after convictio
all offenses except two, or perhaps three:

(I) Violation of Habeas Corpus Act—To preserve
liberty of the subject, the King by the Habeas Corpus A
prohibited from pardoning the offense of sending the
oner out of England to evade the protection of the wr'
habeas corpus.

(f2) Violation of private 7ights.———Even at common
the King cannot pardon where private justice is princi
concerned in the prosecution of offenders. Such a 1i
tion is laid down in the very earliest statement of the
lish law of pardon, that of Bracton, writing in the mi
of the thirteenth century. He said: “For the King cai
grant a pardon with injury or damage to others. He
give what is his own, that is his protection, which the
lawed person has lost through his flight and contum
but that which is another’s he cannot give by his
grace.” 2

Under this principle, the King cannot pardon a com
nuisance until after the nuisance has been abated, for
a pardon might prejudice the right of private persons
jured by the nuisance.3 Similarly, the King’s pardon c
not remove corruption of blood, which under the feudal
tem of tenure worked an escheat of the offender’s prop
to his overlord.4 Nor could it preclude the injured
son’s right to appeal the offender. “During the Mi
Ages there were two methods of proceeding agains
felon—the appeal brought by the person injured by
criminal, for instance, the person whose goods were sto
or the next kinsman of the murdered man, and the ind
ment, a royal procedure at the King’s suit. The King
pardon might free a man from indictment but not f1

2Bracton, De Legibus (Twiss trans.) vol. 2, p. 371.

3 Thomas v. Ear-roll, Vaugh. 333 (1684).

‘ Stephen, Commentaries on the Laws of England (14th ed.) vol. 1, p.
6 Bacon Abr. 145—146; 2 Hawkins P. C. ch. 37, § 57. Corruption of b
was finally abolished by the Forfeiture Act of 1870.

135

appeal, but appeals of felony have long been disused and
were abolished in 1819 (59 Geo. III, ch. 44).” 5

However, by the Remission of Penalties Act of 1859, the
King is authorized to remit money fines, even though the
money may be wholly or in part payable to some party
other than the Crown, and even though the offender has
been imprisoned in default of payment.

(3) Impeachment oases.—A third partial restriction was
imposed by the Act of Settlement of 1700: “That no pardon
under the great seal should be pleaded in bar to an impeach-
ment by the House of Commons.” 6 This act resulted from
altercations arising out of the impeachment before the Com-
mons in 1678 of the Earl of Danby, who pleaded in bar of
such impeachment his pardon from Charles II; whereupon
the Commons resolved, “that the pardon so pleaded was
illegal and void, and not to be allowed in bar of the im~
peachment of the Commons of England.” But while the

, King’s pardon cannot be pleaded in bar of an impeachment,

yet the King is not otherwise restrained. After impeach-
ment he may grant a pardon, as in the case of the rebel
lords impeached in 1715.7

Crime pardoned must be specified—The statute 13 Rich.
II, st. 2, ch. 1 (1389), provided that no pardon for treason,
murder, or rape should be allowed, unless the offense were
particularly specified therein; and that in case of murder,
it should be expressed whether it was committed by lying
in wait, assault, or malice prepense. The purpose, said Sir
Edward Coke, was that the King should not pardon in such
cases, and the Commons therefore prudently made this re-
quirement, deeming it inconceivable that the King would
ever pardon an offense by name, which was attended by
such aggravations. But pardons for such aggravated mur-
ders continued to be frequent, even under the general de-
scription of a felonious killing, there being always inserted,
until the time of the Revolution, a non obstamte of the stat-
ute. But the Bill of Rights declared no dispensation of
the statute by non obstamte should thenceforth be allowed,

5Mait1and, Constitutional History of England, p. 480.

°Stat. 12 and 13, Wm. III, ch. 2.

7Stephen, Commentaries on the Laws of England (14th ed.), vol. 4, pp.
417—418.

73115—39—TOL. m—-—10

136

and such a general description would now seem to
insuiiicient.8

American constitutional limitations.——Two offenses—t
son and cases of impeachment—are commonly excepted f
the pardoning power granted to the executive in Amer'
constitutions. In 26 States both of these offenses are
cluded from the pardoning power. In 16 States impe
ment alone is not pardonable. In Oregon treason alon
excepted; the impeachment process having been abolis
in that State. The United States Constitution contains
limitations whatever in this respect, and the same is tru
five of the States. ‘

States having no restriction on oflenses pardonable.—
necticut,9 Illinois, Kansas, Montana, Washington.

States ewcepting treason and impeachment from the
doning power—Arizona, Arkansas, California, Color
Florida, Georgia, Idaho, Indiana, Iowa, Kentucky, L01
ana, Michigan, Mississippi, Missouri, Nebraska, Nev
New Mexico, New York, North Dakota, Ohio, South
kota, Texas, Utah, Vermont, Wisconsin, Wyoming.

States excepting impeachment—Alabama, Delaw
Maine, Maryland, Massachusetts, Minnesota, New Ha
shire, New Jersey, North Carolina, Oklahoma, Penn
vania, Rhode Island, South Carolina, Tennessee, Virgi
West Virginia. ‘

States excepting treason—Oregon.

Legislative pardon for treason—Of the States exclud
treason from the executive pardoning power, the great
jority (21) provide that the Governor may, however,
prieve persons convicted of treason until the next session
the legislature, and that the legislature may then grant s

'Id. p. 421. Thus it was adjudged in Sir Walter Raleigh's case that
King's grant of a military command to a person attainted of high trea
wherein he called him his true and loyal subject and gave him judicial po
over the lives of others, did not pardon the high treason, because every s
pardon requires special mention of the treason, if not by the common law,
least by 13 Rich. II. 2 Hawk. P. 0., ch. 37, 5 25. See also Rec 17. Pars
2 Salk. 499, Holt 519, 4 Mod. 61 (1692).

'The Connecticut constitution grants the Governor power only to repri
Power to pardon is conferred upon a board by statute. The statute aut
izes the board to pardon “for any ofiense against the State.” Conn. G
Stat. (Supp, 1935) § 7870.

137

clemency as it sees fit.10 In Arkansas and Mississippi the
Governor may pardon treason by and with the advice and
consent of the senate, and in Texas, by and with the advice
and consent of the legislature. The remaining four States
which except treason from the ordinary pardoning power
make no express provision how this offense may be par-
doned, if at all.11

Pardon for impeachment—The near-unanimity with
which impeachment has been excluded from the executive
pardoning power in our State constitutions is not diflicult
to explain. In part, the reasons have been the same as
those actuating the English restriction embodied in the Act
of Settlement, namely, to prevent the head of the State from
rendering impeachment ineffectual by using the pardon-
ing power to shield subordinate oflicials acting wrongfully
or corruptly by his command. The American constitu-
tional restrictions go further than the Act of Settlement,
however, and not only deny the validity of a pardon to bar
impeachment proceedings, but forbid the granting of par-
dons in impeachment cases altogether. Perhaps one reason
for this extension of the English rule lay in the fact that
there is less reason for clemency in impeachment cases in
this country than in England. There, the punishment upon
impeachment might take the form of death, exile, fine, for-
feiture, or imprisonment, as well as removal from and dis-
qualification for oflice. In this country the maximum pen-
alty possible is removal and disqualification. No crying
need for clemency therefore exists.

Two questions remain. (1) Under the Federal Consti-
tution and the constitutions of the five States where im-
peachment cases are not expressly excepted from the execu-
tive clemency power, may clemency be granted in such
cases? (2) Even if the executive may not pardon in such
cases, may Congress or the legislature do so?

These question were discussed some years ago in an arti-
cle by Professor Maurice Taylor Van Hecke, in which he

 

1° California, Colorado, Florida, Georgia, Idaho, Indiana, Iowa, Kentucky,
Louisiana. Michigan, Nebraska, Nevada. New York, North Dakota, Ohio,
Oregon. South Dakota, Vermont, Utah, Wisconsin, and Wyoming.

“Arizona, Colorado, Missouri, and New Mexico.

138

answers both in the negative.12 There is very little
authority on either. Some years ago the question of
lative power to pardon impeachment was raised wh
Texas Legislature, during the administration of G0
Miriam Ferguson, enacted a law undertaking to pard
persons convicted in any impeachment case.13 It w
course, common knowledge that the sole beneficiary
act was intended to be former Governor James E. Fer
who had been convicted in impeachment proceedii
years previous. The attorney general of the State
sented an opinion that the bill was unconstitutional.14
conclusion is concurred in by Professor Van Hecke.

Private wrongs not pardo'nable.—The English pri
that the pardoning power may not be used to pre
private rights is also accepted in this country, and i
ported by our constitutional provisions conferring
to pardon “offenses” or “in all criminal cases.” Sucl
guage, it is said, excludes private. wrongs. Civil judg
generally are not within the pardoning power.15 I
been held that bastardy proceedings are civil in natur
therefore, not within the pardoning power.16 In Ark
it has been held that the Governor could not issue a ge
pardon to delinquent taxpayers because his power a
only to criminal cases and not to the remission of pen
which were civil, remedial, or coercial in character.17
interesting West Virginia case it was held that the
dent’s proclamation of amnesty did not extinguish (2.1V
ability for trespass in taking and carrying away the 1
tiff’s goods, committed while the defendant was actin
the Confederate Army.18

00825.9 not remissibZe.——Formerly it was the general
tice to pay prosecutors, sheriffs, and similar oflicial
fees paid out of the costs in criminal cases, taxed anc

12‘x'an Hecke. Pardons in Impeachment Cases. 24 Mich. Law Rev. 657.

13 Texas Laws 1935, ch. 184.

14 House Journal, Thirty—ninth Regular Session, Texas Legislature,
pp. 672-681.

15 Western Union Tel. 00. v. Ferguson, 157 Ind. 37, 60 N. E. 679 (

1“ Cam/plan V. Gillan, 79 Neb. 364, 112 N. W. 585 (1907); Opinions
Gen. of Minn, 1858—1884, p. 281. Contra: Comm. v. AM, 43 Pa.
(1862).

‘7 Hutton v. McCleskey, 132 Ark. 391. 200 S. W. 1032 (1918).

18 Hedges v. Price, 2 W. Va. 192 (1867).

h“ in." H".

are (.n'

139

judged against such convicted defendants in favor of such
officers. Under this practice, it was uniformly held that the
Governor had no power to remit the costs due such officers,
because they belonged to these individuals and were mat-
ters of private right.19

Today the fee system has been abolished in most States,
and the costs which were formerly taxed and adjudged in
favor of such officers are taxed and adjudged in favor of
the county and State, the officers being paid for their
services by the State or county out of its own treasury.
Nevertheless, it is still held that such costs are not remis-
sible under the pardoning power. “They are exacted simply
for the purpose of reimbursing to the public treasury the
precise amount which the conduct of the defendant has
rendered it necessary should be expended for the vindica-
tion of the public justice of the State and its violated laws.
It is money paid, laid out, and expended for the purpose of
repairing the consequences of the defendant’s wrong. It is
demanded of him for a good and sufficient consideration,
and constitutes an item of debt from him to the common-
wealth. * * * The right to enforce payment of them is
a mere incident to the conviction, and thereby vested in the
commonwealth for the sole purpose of replacing in the
treasury the amount which the defendant himself has caused
.to be withdrawn from it. And it can make no substantial
difference whether the money is going directly to the wit-
nesses and others who are entitled to be paid for their serv-
ices in the prosecution, forthe commonwealth, having paid
them, stands by substitution in their place.” 2°

1’ Holliday v. Peeple, 10 III. 214 (1848) ; State v. Farley, 8 Blackf. (Ind.)
229 (1846); State v. Mateer, 105 Ia. 66, 74 N. W. 912 (1898); State v.
Beebee, 87 la. 636, 54 N. W. 479 (1893); Mikesell V. Board of Commission-
ers, 82 Kan. 502, 108 Pac. 829 (1910); Em part6 Gregory, 56 Miss. 164
(1878) ; State v. Mo O’Blem‘s, 21 Mo. 272 (1855); State v. Mooney, 74 N. C.
98 (1876); State ea' rel. Barnes V. Garrett, 135 Tenn. 617, 188 S. W. 58
(1915); Smith v. State, 6 Lea (74 Tenn.) 637 (1881). But since such fees
did not become due until judgment was rendered thereon, the Governor might
deprive the oflicers of the fees by remitting the forfeiture of a bail bond
before judgment thereon. Williams v. Sherbourne, 102 Ky. 579, 44 S. W.
110 (1898); Comm. v. French, 130 Ky. 744, 114 S. W. 255 (1908); Comm.
v. Spraggins, 18 B. Monroe 512 (Ky. 1857) ; Comm. v. Margan, 14 B. Monroe
314 (Ky. 1854); Comm. v. AM, 43 Pa. St. 53 (1862). See also Smith v.
State, 26 Tex. App. 49, 9 S. W. 274 (1888).

2”Ryan v. State, 176 Ind. 281, 95 N. E. 561 (1911), quoting from Anglea,
610. v. Comm, 10 Grat. (Va.) 696 (1853).

140

By similar reasoning, it has been held that an infor
share of a fine cannot be discharged by pardon.21

Pardon for contempt of court—There has been much
cussion of the question whether the pardoning power 0
executive extends to the pardoning of contempt of court
has been argued that the exercise of the power in such c
would destroy the independence of the judiciary, in v'
tion of the doctrine of separation of powers. It has
been argued that contempt—even a so-called “criminal
tempt”—is not a “criminal case” or “offense” within
meaning of the constitutional provision authorizing
executive to pardon in criminal cases or for offens
However, the weight of authority supports the proposi
that criminal contempts are pardonable.23 It is agreed
the executive may not pardon civil contempts.24 In
contempts, the punishment is remedial and for the be
of the complainant, and such contempts therefore c
within the principle that the pardoning power may no
exercised to prejudice private rights.

Pardon for legislative contempt—Although Story wa
the opinion that the independence of the legislative bra
required that the executive should not be allowed to par
persons guilty of legislative contempt,25 it would seem t
this is no more true than in the case of judicial conte
and that the reasoning of Ea: parte Grossmam is applic
here as well. Except for the doctrine of separation of p

210. S. v. Harris, 1 Abb. 110, Fed. Gas. No. 15,312 (1866); Rucke
Bosworth, 7 J. J. Marsh. (Ky) 645 (1832); Rowe v. State, 2 Bay (S.
565 (1804) ; and see U. S. v. Griswdd, 24 Fed. 361 (1885). Contra: U.
Thomasson, 1 Bliss. 336, Fed. Gas. No. 16,479 (1869).

”State v. Shumaker, 200 Ind. 176, 164 N. E. 408 (1928); Taylor v. G
rich. 40 S. W. (Tex.) 515 (1897).

”Ea: pa’rte Grossman, 267 U. S. 87 (1925); State ea. rel. Van Order
Saurinet, 24 La. Ann. 119, 1 3Am. R. 115 (1872) ; Ea: parte Hickey, 4 S
& M. (Miss) 751 (1845) ; Ea: parte Magee, 31 N. M. 276, 242 Pac. 332 (192
21 Ill. Law Rev. 379; State v. Magee Pub. Co., 29 N. M. 455, 224 Pac. 1
(1924) ; Sharp v. State, 102 Tenn. 9, 49 S. W. 752 (1899). See on this w
subject. Lardner, Eweeutive Pardon for Contempt of Court, 2 Ry. Mt.
Rev. 137; and Notes in 38 Yale Law Jour. 819; 24 111. Law Rev. 483; 14 I
Law Rev. 447; 14 Corn. Law Quar. 484; 13 Minn. Law Rev. 506.

’4 Ea: parte Browne, 2 Cole. 553 (1875) ; People v. Peters, 305 III. 223,
N. E. 118 (1922); 19 111. Law Rev. 176; State v. Verage, 177 Wis. 295, 1
N. W. 830 (1922). See also Ea: parte Green, 116 Tex. 515, 295 S. W.
(1927) (violation of injunction secured by attorney general, fOrbidding
of liquor, held not pardonable because it was “a violation of an order m
in a civil case").

2!SStory, The Constitution, § 1503.

141

» ers, there is no reason why such an offense should be unpar-

donable, when all other offenses, including the most heinous,
may be pardoned; and the objection upon that score can be
answered in the words of the Supreme Court in answering
the objection to permitting the executive to interfere with
the judiciary by the power to pardon judicial contempt:
“The pardoning by the President of chiminal contempts has

. been practiced more than three quarters of a century, and

: no abuses during all that time developed sufficiently to in-
' voke a test in the Federal courts of its validity.” 2“ In 1938
? President Roosevelt granted a pardon to Dr. Francis Town-
; send, leader of the old age pension group, who had been

found guilty of contempt in refusing to testify before a
congressional investigating committee.

Pardon for disbamnent.——A pardon does not have. the ef-
fect of nullifying the disbarment of an attorney at law or
to require the court to reinstate him, and this is true even
though the pardon may expressly state that it is intended
to have that effect.27 A disbarment is not a “criminal case”
or “offense” Within the meaning of the constitution.28

Pardon for municipal violations.—The executive can par-
don only violations of State laws. The power does not ex-
tend to violations of municipal ordinances.29 The legisla-
ture may empower the mayor or other municipal authorities
to remit penalties for such violations, and has done so in
some States.so

Miscellaneous restrictiona—Provisions are found in a few
States attempting to prohibit or restrict the power to par-
don certain types of offenders or ofl’enders convicted of cer-
tain crimes. The California constitution expressly provides
that no pardon or commutation shall be granted to any
prisoner twice convicted of felony except upon the written
recommendation of a majority of the judges of the supreme
court.31 A similar provision is found in Arizona, where,

2° Ea: parte Grossman, 267 U. S. 87 (1925).

9" See post, pp. 285-287.

”Scott v. State, 86 Tex. 321, 24 S. W. 789 (1894).

29Allen 17. McGuire, 100 Miss. 781, 57 So. 217, 38 L. R. A. (N. S.) 196, Ann.
Cas. 1914A 483 (1911) ; State v. Rem'ck, 157 M0. 292, 57 S. W. 713 (1900).

30 See for example Idaho Code Ann. (1932) § 49-329; Kan. Gen. Stat. Ann.
(1935) §§ 13-1901, 14—310, 15—309; Neb. Comp. Stat. (1929) §§ 15—315, 16-
312, 17—117, 14—126; Utah Rev. Stat. Ann. (1933) §§ 15—6—16, 15—6—24.

$1Cal. Const., art. VII, § 1; Cal. Penal Code (Deering, 1933) § 1418.

142

however, it rests merely upon statute.32 It seems that
a statute is an invalid attempt to restrict the executive
doning power.33 For this reason; the statute has
ignored by the Arizona board.

Equally open to constitutional objection are the Ar'
statute providing that no application for commutatio
pardon Will be considered in the case of any prisoner W
minimum sentence is 5 years or more until he has serv
period of 1 year, or other prisoners until they have se
6 months; 34 the Georgia statute providing that no co
tional pardon shall be granted until at least the mini
sentence is served; 35 and the North Dakota statute pro
ing that a person convicted of first degree murder is
eligible for pardon, commutation, or parole until he
have been confined for at least “50 percent of the tim
his life’s expectancy.” 3“

Ohio has a statute providing that the Governor’s advi
pardon board shall not recommend a pardon for any pe
convicted of first degree murder “except upon proof of i
cence established beyond a reasonable doubt.” 3" This
vision is probably constitutional because the board is pu
of statutory creation; its recommendations are not bin
upon the Governor, and this provision being restricte
the board’s power to recommend, does not undertak
impair the Governor’s power to pardon if he Wishes to
so Without a recommendation from the board.

The Kentucky constitution specifically provides that (1
ing may be pardoned after 5 years following the offense.

TIME WHEN PARDON MAY BE GRANTED

Pardons to be gram-wed only “after co7wictz’0n.”—Thi
eight State constitutions specifically limit the pardon
power by providing that pardons may be granted “a

mAriz. Rev. Code Ann. (Struckmeyer, 1928) § 5318.

83The justices of the Arizona Supreme Court some years ago also in
many told the chairman of the pardon board that they considered the sta
an improper delegation of power to the judiciary.

3*Ariz. Rev. Code Ann. (Struckmeyer, 1928) § 5220.

85Ga. Code (1933) § 77—503. ‘

36N. D. Comp. Laws Ann. (Supp, 1925) § 11110a2.

8'TOhio Code Ann. (Throckmorton, 1926) § 12399.

38Ky. Const. § 240.

143

conviction.” 3" In addition, the Louisiana constitution is
construed to imply the same limitation,40 and in Kansas
such a limitation has been added by statute.41 The Maine
constitution authorizes the remission “after conviction” of
forfeitures and penalties and the granting of reprieves,

commutations, and pardons—apparently unlimited by the
phrase “after conviction.”

Where no such limitation is found in the constitution, as
is today true in at least seven States 42 and under the United
States Constitution, the pardoning power may be exercised
either before or after conviction.43 However, as is true of
the royal pardoning power in England, the offense must
have been committed and the liability to penalty must there-
fore have been accrued. “A permission given to a person
or class of persons to commit offenses with a pardon remit-
ting the penal consequences thereof, would be absolutely
void. The prerogative to issue such promissory pardons
was once claimed by the Crown; but the claim has long
been abandoned. It would amount to a power of dispens-
ing with the compulsory effect of statutes or the law gen-
erally which the English people have resisted with suc-
cess.” 44

”Alabama, Arkansas, Arizona, California, Colorado, Connecticut, Florida,
Georgia, Idaho, Illinois, Indiana, Iowa, Massachusetts, Michigan, Minnesota,
Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jer-
sey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma,
Oregon, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West
Virginia, Wisconsin, Wyoming.

40 Although the constitution does not specifically prohibit a grant of clem-
ency before conviction, it seems that the power was intended to be exercised
only after determination of guilt since the presiding judge of the court “be-
fore which conviction was had” is a member of the board of pardons. And
the court has said that a verdict of guilty is a conviction; imposition of sen-
tence is not necessary before the pardoning power may be validly exercised.
State ex. rel. B-ier v. Klock, 48 La. Ann. 140, 18 So. 942 (1895) ; State ex. rel.
Butler v. Moise, 48 La. Ann. 149, 18 So. 943 (1895).

41 Kan. Gen. Stat. Ann. (1935) § 62—2221. It seems doubtful whether
this restriction of the Governor’s power is constitutional.

mDelaware, Kentucky, Maryland, Pennsylvania, Rhode Island, Vermont,
Washington.

“Ea pa'rte Garland, 4 Wall. 333 (1867); Dominick v. Bowdoin, 44 Ga.
357 (1871); Comm. v. Bush, 2 Duv. (Ky.) 264 (1865); State v. Morgan, 33
Md. 44 (1870) ; White v. State, 42 Miss. 635 (1869) ; State V. Wallery, 29 M0.
300 (1860); Terr. v. Richardson, 9 Okla. 579, 60 Pac. 244, 49 L. R. A. 440
(1900). And see Hatzfield v. Gulden, 7 Watts (Pa.) 152, 155 (1838).

“Pcmeroy, Constitutional Law, § 682. The king cannot discharge a recog-
nizance taken for the security of the peace, but after forfeiture he may.
Shipley v. Craister, 2 Vent. 131 (1689).

-144

What constitutes “conpiction.”—The question has
raised in numerous cases whether “conviction” refers m
to the verdict of the jury or whether it requires also
judgment of the court and whether, therefore, a pardon
be granted after verdict but before judgment. Alth
there is some authority to the contrary,45 the great w
of authority is that the verdict is suflicient to const
conviction.48 “The ordinary legal meaning of ‘convict
when used to designate a particular stage of a cri
prosecution. triable by a jury, is the confession of th
cused in open court, or the verdict returned against hi
the jury, which ascertains and publishes the fact of
guilt; while ‘judgment’ or ‘sentence’ is the appropriate
to denote the action of the court before which the tri
had, declaring the consequences to the convict of the
thus ascertained.” ‘7

In Montana and Nebraska, the constitution specifi
adopts the minority rule by using the phrase “conviction
judgment.”

It is unanimously agreed that a pardon may be gra
while an appeal is pending following conviction,
though the appeal suspends the conviction.48

Pardon after sentence has expired—A convict ma
pardoned even after his term of imprisonment has

 

‘5an parte White, 28 Okla. Cr. 180, 230 Pac. 522 (1924). An
Spencer v. State, 125 Tenn. 64, 140 S. W. 597 (1911) (“a convictio
volves not .only a verdict but also a sentence passed by the court and
conviction the chief executive has no power to pardon”); Smith v.
6 Lea (74 Tenn.) 637 (1881) (“a conviction implies not simply a ve
but also a judgment ‘ ‘ ‘ though we believe it has not generally
held that a judgment should be actually entered before a pardon ca
interposed”) .

m00mm. v. Lockwood, 109 Mass. 323 (1872); People v. March, 125
410, 84 N. W. 472, 51 L. R. A. 461, 84 Am. St. R. 584 (1900); Spam
Benzz'e Circuit Judge, 136 Mich. 25. 98 N. W. 741 (1904) ; State v. Alea-a
76 N. C. 231, 22 Am. B. 675 (1877) ; Battistelli v. State, 141 Tenn. 565,
S. W. 417 (1919); State ea: rel. Barnes v. Garrett, 135 Tenn. 617, 188
58, L. R. A. 1917B 567 (1916); Parker v. State, 103 Tenn. 547. 53 S
1092 (1899); Duke v. State, 106 Tex. Cr. 154, 291 S. W. 539 (19
Blair v. 00mm., 25 Grat. (Va.) 850 (1874).

‘7 Comm. v. Lockwood, 109 Mass. 323, 325 (1872).

“Cole v. State, 84 Ark. 473, 106 S. W. 673 (1907); Comm. v. Lock
supra; State v. Alewander, supra; State ea: rel. Barnes v. Garrett, supra;
more v. State, 3 Okla. Cr. 639, 108 Pac. 416 (1910); 0088 v. State,
Tex. Cr. 659, 298 S. W. 585 (1927).

145

pired.49 As one court has said, “Imprisonment and hard
labor are not the only punishments which the law inflicts
upon those who violate its commands. Besides these, are
disabilities which are the consequences of conviction and
which remain after incarceration has ceased. A pardon is
supposed to be granted to one who has been imprOperly con-
victed, and who has sufficiently expiated his offense. If it
was only eflicacious when the party was in duress, its effects
would only be a halfway relief.” 5°

In practice, such pardons granted after expiration of sen-
tence, for the purpose of restoring rights of citizenship, con-
stitute one of the most important forms of pardon. In
New York such restorations of citizenship are never granted
until a considerable time after expiration of the maximum
sentence and until the person has shown by good conduct
that he is worthy of this clemency. In Delaware the board
has adopted a rule that full pardons will never be granted
except for innocence or after at least 2 years following the
expiration of sentence.

PUBLICITY REQUIREMENTS

Reports to legislature.—In order to prevent abuse of the
pardoning power by the executive, almost all States have
adopted provisions designed to give publicity to all grants
of clemency. The most usual device for accomplishing this
is to require the Governor to report to the legislature all
cases of clemency granted. Such a requirement is in force
in all but 13 States.51 In most States this requirement is in-
corporated in the constitution,52 although in some its rests

”U S. v. Jones, 2 Wheel. Crim. Gas. 451 (1824); Peeple v. Bowen, 43
Cal. 439 (1872); State v. Baptiste and Martini, 26 La. Ann. (1874); State
v. Foley, 15 Nev. 64 (1880); Locklin v. State, 75 S. W. (Tex. Cr.) 305
(1903); Humu’cutt v. State, 18 Tex. App. 498, 51 Am. Rep. 330 (1885).

50State v. Baptiste and Martini, supra, note 49.

“Only Connecticut, Illinois, Kentucky, Louisiana, Minnesota, Mississippi,
New Hampshire, New Jersey, New Mexico, Pennsylvania, Rhode Island, Texas,
and Vermont have no such provisions.

5’ See Ala. Const. art. V, § 124; Ala. Code Ann. (Michie, 1928) § 5127;
Ariz. Rev. Code Ann. (1928) § 5218; Ark Const. art. VI, § 18; Ark. Dig.
Stat. (Crawford and Moses, 1921) § 3369; Cal. Const. art. VII, § 1; Cal. Pen.
Code (Deering, 1933) § 1419; Colo. Const. art. IV, § 7; Del. Const. art. VII,
§ 1; Fla. Const. art. IV, § 11; Ga. Const. art. V, § 1, par. 12; Idaho Const.
art. IV, § 7; Ind. Const. art. V, § 17; Iowa Const. art. IV, § 16; Me. Const.
art. V, part 1, § 11; Md. Const. art. II, 5 20; Mich. Const. art. VI, 5 9; Mo.
Const. art. V, § 8; Mont. Const. art. VII, § 9; Mont. Rev. Codes Ann. (An—

146

merely upon statute.53 Such statutes are not invalid a
interference with the pardoning power; “the legitimate
ject of legislation is to ascertain not only the existence
character of crimes, but the mode in which they are d
with.” 5*

Such a requirement, it has been stated, is designed to
“as a check upon the improvident or improper use of
power by the oflicer exercising it, but is no limitation u
or qualification of the power, so far as it affects the
done.” 55 Failure to comply with the requirement does
render a pardon void.58

Usually the report must be made annually or bienniall
to the next regular session of the legislature. In Maryl
and in Tennessee, however, the Governor is only require
make such reports when the legislature so requests.
common to require not only the names of all person
whom clemency was granted but also the reasons for gr
ing it. In Idaho and Utah, the objections, if any, of
member of the board must also be stated.

In practice these requirements are not always comp
with. In Idaho, for example, the requirement seems t
completely ignored; no such report has been submitted
ing the years 1926—37. In North Carolina, also, the execu
has at times failed to comply with the requirement tha
report biennially, and in many administrations even wl
reports are made, the requirement that the reasons be gi
has not been complied with. In Utah also, the requirei
that the particulars of each case of clemency be reporte
the legislature is not always complied with.

derson and McFarland, 1935) § 12259; Nob. Const. art. IV, § 13; Neb. C
Stat. (1929) § 29—2635; Nev. Const. art. V, § 13; N. Y. Const. art. IV,
N. C. Const. art. III, § 6; N. D. Const. art. III, ‘9' 76; Ohio Const. art.
§ 11; Okla. Const. art. VI, § 10; Ore. Const. art. V, § 14; S. C. Const.
IV, § 11; S. D. Const. art. IV, § 5; S. D. Comp. Laws (1929) § 5313;
Const. art. VII, § 12; Va. Const. § 77; Wash. Const. art. III, § 9; W.
Const. (1872) art. VII, § 11; W. Va. Code Ann. (Michie, 1932) § 250;
Const. (1848) art. V, § 6; Journal of the Wisconsin Const. Convention (1
pp. 42—48; Wyo. Const. art. IV, § 5.

53 Kan. Gen. Stat. Ann. (1935) § 62—2218; Mass. Laws Ann. (Michie, 1
ch. 127, § 152; Tenn. Code Ann. (Williams, 1934) § 11819.

54 16 Opinions Att’y Gen. 27, 29 (1878).

55 See State ca: rel. Dickson v. Williams, 6 S. D. 119, 126, 126 N. W. 410,
(1894).

“Ex parte Reno, 66 M0. 266, 27 Am. R. 337 (1877).

147

In Massachusetts and Michigan, not only is the Governor
required to make such a report, but the commissioner of cor—
rections is also required to submit an annual report which
must include the pardon recommendations of the board of
paroles.57

Pardon cases made public recorda—Another, though
somewhat less effective, publicity device is to require all
pardon applications and decisions to be filed as public rec-
ords, open to public inspection. The Kentucky constitution
requires that the Governor must file all pardon applications,
together with a statement of his reasons for granting or
refusing the same, and that such documents shall be open
to public inspection.58 Similar provisions are found in
Delaware, Oregon, and “Tashington.59 The records of the
New Jersey court of pardons are also open to public inspec—
tion.60 In Pennsylvania and Texas the recommendations
made by the pardon board to the Governor are public rec-
ords, although apparently no such publicity is required of
the ultimate action of the Governor himself.61 In South
Dakota the Governor himself has power to pardon minor
offenses, but must report each case of clemency granted to
each regular session of the legislature; major offenses are
pardonable by the Governor upon the recommendation of
the board, and in such cases the board’s written recommen-
dations are filed in the office of the secretary of state and
a copy sent to the Governor.‘32

Publication in newspapers—Arizona requires the Gover-
nor to publish in a newspaper of general circulation and
in the county where the conviction was had a statement
setting forth his reasons whenever he grants a reprieve or
stay of execution in a case where the death sentence was
imposed.63 In Vermont the Governor may, in his discre-

 

5" Mass. Laws Ann. (Michie, 1935) c. 124, § 6; Mich. Pub. Acts 1937, No.
255. ch. 1, § 8.

58Ky. Const. § 77.

“Del, Const. art. VII, § 1; Ore. Code Ann. (1930) § 13—1808; Wash. Rev.
Stat. Ann. (Remington, 1932) § 10983.

“N. J. Comp. Stat. (1911), pp. 3895—3896, §§ 1, 2, 7; Rules of the Court
of Pardons, N0. 3.

61Pa. Const. art. IV, § 9; Tex. Const. art. IV, § 11, as amended 1936;
Tex. Laws 1935, p. 1237.

62 S. D. Const. art. IV. § 5; S. D. Comp. Laws (1929) §§ 5313, 5314, 5556.

“Ariz. Rev. Code Ann. (Struckmeycr, 1928) § 5217.

148

tion, publish his decision in one or more newspapers
must communicate the same in writing to the applican
to the State’s attorney.“ ~

IMPEACHMENT FOR ABUSE OF THE PARDONING P0

In spite of the various constitutional limitations
have been placed upon it, the pardoning power rema'
its very nature largely unlimited and unrestrained.
freedom from formal, rigid restrictions has been the
advantage of the power. It has also been the sour
grave abuses.

We have seen in Chapter I how the power has bee
used and corrupted at various times in the past. Ins
of such abuses have also occurred in this country
time to time. As Governor of Texas, Mrs. Ferguso
doned 3,500 persons in the 2years,1925—26. Her prede
had pardoned 17 in 4 years. More recently, the Gov
of Arizona has been attacked on a charge of “nullify'
work of the courts on a grand scale” by “a wholesale e
ing of the penitentiary to the jeopardy of the publi
granting pardons or commutations to almost half the
age prison population during a period of 21 months

Abuse of the power unsettles the general faith in th
and confidence in its supremacy. It destroys the certa'
punishment and increases the hope of immunity '
criminally disposed. It permits well-meaning indivi
male and female, from a feeling of pity not always
founded, to meddle with cases of which they have onl
perficial knowledge, with a disrupting effect upon ge
penal policy which they rarely consider. It permits a
tician bent on building up a political following to m
mockery of the law. In Bentham’s jargon: “From pa
power unrestricted, comes impunity to delinquency i
shapes; from impunity to delinquency in all shapes,
punity to maleficence in all shapes; from impunity to m
icence in all shapes, dissolution of government; from
solution of government, dissolution of political society.’

I“Vt. Pub. Laws (1934) § 8887.
‘5 Santa Fe New Medean, Oct. 9, 1936, editorial.
”Bentham, Wm'ks, vol. I, p. 530.

149

The temptations leading a governor to misuse the power
must not be under-estimated. The most loyal followers
any politician can have are the men he has helped “spring”
from prison. He can count on their grateful and whole-
hearted support at election time, together with the support
of their families and friends. It is not too surprising that
there have been governors unscrupulous enough deliberately
to build up such a body of supporters.

Even a governor who would not stoop to such a course
may have difficulty in resisting pressure forcing him in that
direction. The Governor of an American State surrounds
himself with no pomp or majesty. He is easily approach-
able. Persons to whom he owes political debts and others
have no difficulty in obtaining audiences to solicit him for
what is considered the “slight favor” of extending clemency
to some convict. And since his career depends upon party
politics, it is not always easy to refuse.

An advisory pardon board can serve as a lightning rod

to ward off this sort of influence by making it possible for
the Governor to refer all such pressure groups to the board.
Of course, if the board is itself composed of persons hold-
ing elective office (attorney general, secretary of state, etc.) ,
political pressure can be exercised as effectively against such
members as it could against the Governor.
. It- is not easy to define what constitutes an abuse of the
pardoning power. Statistics and percentages themselves
do not necessarily prove abuse. The fact that one Gover-
nor extends clemency to two or three times as many persons
as his predecessor did does not necessarily mean that the
power is being abused. The former Governor may have
been too stringent, with the result that worthy cases have
been allowed to accumulate, and hopelessness and bitter-
ness to pervade the penitentiary and adversely affect prison
discipline. Or the creation of an adequate force of super-
visory officers may have made it possible to release a num-
ber of persons on conditional pardon subject to careful
supervision. On the other hand, if there were but a single
pardon issued in a given year, that one case might consti-
tute an abuse of the pardoning power.

Although the executive is given almost unlimited discre-
tion in exercising the power, and although there is almost

150

no standard by which to determine whether the pow
being exercised properly or improperly, yet it is clear
the power may be so arbitrarily orcorruptly exercised

be generally conceded as wrongful. And such misus
the power is ground for impeachment.

Bishop, one of the leading American authorities on c
inal law, has said: “The granting of pardons is discre
ary in its nature; therefore, it is necessarily the more
to control by the impeaching power. If it comes t
understood that a single man, intrusted with the high f
tion of pardon, can open all the prisons of the country
let every guilty person go free, thus at a blow striking d
the law itself, and not be himself punished for the
misdemeanor, the most disastrous consequences to 1i
and law will sooner or later follow. Such a conclusi
itself the annihilation of law, and only upon law can 1i
repose.” “7

Impeachment of Governor Walton, of Oklahoma.—
1923, Bishop’s statement was supported only by diet
some cases.68 But in that year Governor J. C. Walto
Oklahoma, was impeached for wrongful and corrupt
use of the pardon power. Inasmuch as this seems to b
only. case of the sort on record, it may be worthwhil
state the facts. These are given in the article of impe
ment upon which Governor Walton was found gu'
“That J. C. Walton, as Governor of the State of Oklah
is vested by the Constitution of the State with the p
to grant, after conviction, reprieves, commutations, par
and pardons for all offenses, except cases of impeach
and that immediately after said J. C. Walt-on proceede
issue commutations, pardons, paroles, reprieves, leave
absence in great numbers, and these pardons and par
were granted by said J. C. Walton to men accused of cri
both before and after conviction thereof, and, in some c
while appeals of these parties were pending in the Cr'

67 Bishop, New Grim. Law, §§ 922, 926.

68See Rich v. Chamberlain, 104 Mich. 436, 441, 446, 62 N. W. 584,
(1895), where the court in passing said the exercise of the pardoning p
is “subject, perhaps, to the remedy by impeachment in case of flagrant ab
also Ea: parte Cramp, 10 Okla. Cr. 133, 139, 135 Pac. 428, 431, 47 L.
(N. S.) 1036 (1913), where it is said “an abuse of the pardoning power
be so great as to warrant an impeachment of the officer who exercises it.

151

Court of Appeals of the State of Oklahoma; that these
pardons and paroles were granted over the protest and ob-
jections of the counties in which the persons pardoned or
paroled had been convicted, and in numerous cases these
pardons and paroles were granted to parties convicted of
crimes before sentence could be placed by the trial judge
upon the party convicted; that these pardons and paroles
were obtained by or through the close friends or agents of'
said J. C. Walton, and in many instances were obtained by
special officers appointed by J. C. Walton, the said J. C.
Walton knowing at the time that these close friends and
special officers were representing to the friends and family
of the party desiring a pardon that by virtue of their influ-
ence with said J. C. Walton that they could and would ob-
tain a pardon or parole for the party desiring it, upon the
payment to these friends or agents of a large sum of money;
that said J. C. Walton delivered numerous pardons and
paroles granted to persons accused of crime wholly un-
worthy of clemency of said J. C. Walton, with interest on
the part of the said J. C. Walton to enable the friend, agent,
or special officer to obtain a large sum of money therefor
before delivery of said pardon or parole; that specific in-
stances of such pardons and paroles are those of Virgil
Hollingshead, George \Vills, and Ira Williams; that a total
of .274 pardons and paroles have been granted by said J. C.
Walton as Governor from the 8th day of January 1923 to
the 17th day of October 1923, and these pardons and paroles
were granted to men convicted of the most serious offenses;
that this pardoning power has been exercised by said J. C.
Walton as Governor in almost every case only upon the
payment of a large sum of money to one or more of the
close friends, agents, or special officers of J. C. Walton, and.
that this granting of pardons and paroles to parties not
entitled to them has defeated justice, encouraged contempt
and disregard for law, and confidence in their immunity;
from punishment by the criminal element in the State of
Oklahoma, and thus has prevented the enforcement of law
and has caused lawlessness and crime in the State of Okla-
homa, and has greatly hampered the enforcement of the
law by proper officers of the State; that this granting of
pardons and paroles has been done by J. C. Walton as Gov-
73115—39—v0L. m———11

152

ernor of the State of Oklahoma, not with the intenti
granting clemency in deserving cases, but with the pu
and intent of rewarding friends and enabling them
tain large sums therefor, and to enable the agents and
cial oflicers of said J. C. Walton to obtain large sum
reason thereof enabling men convicted of any crime t
tain their liberty on the payment of the price thereof t
friends, agents, and special officers of said J. C. Wa
that in granting these pardons and paroles said J. C.
ton, as such Governor, wilfully, wrongfully, and corn
violated his oath of oflice, and was guilty of wilful ne
of duty, incompetency, corruption in office, and of an 0
involving moral turpitude committed by him while i
said office.” 68“

This charge was supported by an abundance of evid
Among other things it was shown that there had
693 cases of executive clemency granted between Jan
8th and November 19th.69 The vote on this article of
peachment was: ayes, 41; noes, 9; absent, 1.70 Several
ators sent up written explanation of their votes for inclu
in the record:

Senator Darnell: “ * * * To my mind the evid
shows that some of these acts of clemency were clearl
violation of the Constitution of the State in that they
granted prior to conviction, and in one an apparent atte
was made to pardon a crime with which the recipient the
had never been charged. While the evidence in no s
showed that the defendant, or respondent Governor,
ceived any money or other consideration therefor, the pi
did show, in my judgment, that the acts of clemency w
granted not by reason of the merits of the particular
but as a reward or accommodation for friends who were
terested in the application. This is not only an abuse of
pardon and parole power but an utter misconception of t
power :1: * ac.” 71

Senator Jed Johnson: “I vote ‘aye’ on Article (19) cha
ing that the Governor’s close friends or agents have receix

“33 Transcript of Proceedings, Court of Impeachment, pp. 50—51.
”Id. at 1722.

7" Id. at 1842.
71Id. at 1843.

 

153

large sums for obtaining pardons and paroles. * * * To
my mind it is immaterial whether or not such bosom
friends as the ousted County Attorney of Carter County,
or Jimmie Mathers, the eX—convicts Madison, Hicks, and
Flannery, and all the others, who, like vultures, preyed
upon the unfortunate relatives of convicts by the hundreds,
conducting an illegal traffic in the pardon and parole busi-
ness, were dividing their spoils with the Governor. The un-
deniable and admitted truth that for a few thousand dol-
lars, more or less, that they would secure, without other
recommendations, pardons and paroles for the most re-
nowned criminals; and for the further fact that they pro-
duced the acts of executive clemency contracted for with
remarkable dispatch, and collected their exorbitant graft
is conclusive evidence of corruption, as charged, and cer—
tainly constituted an impeachable offense. * * * The
fact that pardons and paroles were indiscriminately ped-
dled with the knowledge and consent of the Governor places
a responsibility on him for the most outrageous and indo-
fensible breach of executive power ever perpetuated (per-
petrated?) on a civilized state by a Governor or gang of
political shysters. I cannot bring myself to believe that
Jack Walton, who it is clearly shown by a preponderance of
the evidence, has prospered financially far beyond the pos—

-li, sibility of his meagre salary, and whose signature was ab-

solutely necessary before the stream of filthy lucre began
flowing, permitted all of the money to go to his friends and
refused to participate in the distribution of same. If the
uncontroverted testimony of Bynum, Black, Henderson,
et al, are true, the Governor was constantly demanding that
they “kick in” to him personally with a portion of contri-
butions, and it follows that \Valton would not be running
true to form if he did not demand his share of the cash in
dealing out pardons and paroles. This corrupt, unwar-
ranted, and disgraceful abuse of the pardon and parole
power by Jack Walton is unprecedented in the history of
this or any other State, and for my part, it must end to-
day.” 72

 

 

72 Id. at 1844-5.

CHAPI'ER V
THE PARDONING PROCEDURE

The popular conception of the method by which a par-
don is obtained is very simple: the person acting on behalf
of the prisoner—preferably his tearful wife, sweetheart, or
mother—visits the governor and pleads with him to be
merciful. If the plea is successful, the governor then and
there takes up his pen, writes out a pardon and hands it to
the grateful supplicant. To complete the picture, we should
have the faithful supplicant conveying the document to the
prison in a dramatic ride, arriving a split second before the
execution is to take place—for pardons are usually thought
of only in connection with death sentence cases.

Fifty years ago, this picture was correct enough for al-
most every State in the Union. In 1886, a former Governor
of Ohio said:

“As the work is now done, the pardoning business is car-
ried on mainly by earwigging. At the governor’s oflice, at
his residence, on the streets, in the cars, at the theater, in
church—everywhere, the work of solicitation proceeds. His
family physician is enlisted, and takes advantage of a. visit
caused by a slight illness of the governor to tell him how
much he has become interested in the fate of young so-and-
so, whose lawyer handled his case so badly. The governor’s
pastor calls on him with a tale of how a most interesting but
unfortunate young man from Brother Somebody-else’s
church has been convicted of perjury. And, if Mrs. Gov-
ernor can only be enlisted, then the friends of the prisoner
are sure of success; while all the governor is certain of is
that his sense of duty and love for his wife are exposed to
collision.

“For all this, the remedy is publicity—open and public
sessions for the consideration of applications for pardon;
no testimony except under oath or, official reports; the State
as well as the petitioner to be represented by counsel; all

(155)

156

proceedings, including the governor’s decision, to be pub
reported in and exposed to the censure of the press; in 0
words, an official, quasi—judicial scrutiny substituted for
vate solicitation.” 1

Today, although the simple older procedure still prex
in some States, in most the reforms advocated by Grove
Hoadly have largely been effected. Statutes now set f
in considerable detail the method by which petitions
pardon are to be presented and disposed of, and the
cedure is usually rather formal and complex enough to
quire legal or other expert assistance. In very few St
does the Governor undertake to pass upon such a peti
himself, merely on the statements of the prisoner and
friends; some sort of investigation of the facts and a 1
or less formal hearing is usually provided. In this cha}
we shall review the regulations found in the various St.
(1) regarding the procedure for applying for a par
(2) the investigation made of the case, and (3) provisi
for a hearing before the Governor or a board.

We shall also discuss (4) the legal requisites regard
delivery; (5) whether the convicted person has any ch
to accept or refuse a pardon; and (6) whether a pardon o
delivered may subsequently be revoked.

APPLYING FOR PARDON

While, as we have seen, the power of extending clemei
has been entrusted to the executive department of the g
ernment,2 yet it is usual to provide, either by constitutio
provision, statute, or administrative rules, for more or 1
regulation of the manner in which applications for cle
ency may be presented. Statutory regulation of the m
ner of applying for pardons is constitutional, even in t-
absence of express constitutional authorization, at least
long as the regulations undertake to bind only the applica
and not the executive.3

Such regulations are usually designed to accomplish t-
aims: ( 1) To bring applications or petitions for pardo

1George Hoadly. The Pardoning Power (1886) p. 12.

2 See ante, ch. III.
3 See ante, ch. IV.

157

before the pardoning authority in an orderly manner, and
accompanied by sufficient information to permit of intelli-
gent disposition; and (2) to provide notice to the public
and to all parties concerned in order that objections to the
granting of the pardon may be heard. While these are
proper and indeed necessary precautions, yet it must be
admitted that in some States these regulations have become
so complex that most prisoners are unable to handle the
matter for themselves. This tends to favor the wealthy
and influential criminal able to retain a lawyer to file appli-
cations, as against the convict without money or friends.
N otice of application—In almost half of the States of the
Union today a convict intending to apply for executive
clemency must first take steps to notify the public of the
fact. In 16 States, notice of such intent must be published
in a newspaper of the county in which conviction was had
for a period ranging from 10 to 30 days.‘ In Georgia, pub-
lication is required by posting such notice in the court—
house.5 In Florida, publication may be either by news-
paper or posting.6 In Arkansas, publication must be in a
newspaper if the applicant was convicted of any of cer-
tain major offenses, but may be by posting in cases of minor
offenses.7 In 13 States, the applicant is required to notify
the prosecuting attorney of the county where he was con-

 

‘Ala. Code Ann. (Michie, 1928), § 5128 (2 weeks); Ariz. Rev. Code Ann.
(Struckmeyer, 1928), § 5222, Rules of Board, Nos. 13, 15 (30 days); Cal.
Const, art. VII, § 1; Cal. Pen. Code (Deering, 1933), § 1422 (30 days);
Idaho Const., art. IV, § 7; Rules of the board of pardons (1933), Nos. 24, 25
(4 weeks); 111. Rev. Stat. Ann. (Smith-Hurd, 1935), ch. 104%, §§ 2, 7 (3
weeks) ; Kan. Gen. Stat. Ann. (1935), § 62—2216 (30 days) ; Louisiana, Rules
of the board of pardons, No. 2 (10 days); Me. Rev. Stat. (1930), ch. 147,
§ 51 (3 weeks); Miss. Const., § 124 (30 days); Ohio Code Ann. (Throck-
morton, 1936), § 2211—7 (2 weeks); Pennsylvania, Rules of the board of
pardons, No. 4 (2 weeks—capital cases only); S. D. Comp. Laws (1929),
§ 5557 (4 weeks) ; West Virginia, Rules and regulations of the governor gov-
erning the pardon attorney, No. 2 (2 weeks); Wis. Stat. (1935), § 57.09 (2
Weeks); Wyo. Rev. Stat. Ann. (Courtright, 1931), § 80—205 (3 weeks—in
capital cases, 10 days). In North Carolina, although not required by statute,
the practice is to require advertisement in a daily paper for 2 weeks prior to
the hearing before the parole commissioner. In 4 of these States the statutes
permit posting if there is no newspaper published in the county where con-
viction was had (Alabama, South Dakota, Wisconsin, Wyoming).

5Georgia, Rules governing application for executive clemency (1934), No. 3
(30 days).

°Fla. Comp. Gen. Laws Ann. (Skillman, 1927), 5 8492 (10 days).

'Ark. Dig. Stat. (Crawford and Moses, 1921), §§ 3370—3372 (2 successive
weeks’ publication required only in cases of felony, wifebeating, unlawful
carrying of weapons, and unlawful selling of liquor; in other cases, posting
on the courthouse door for 10 days is sufficient).

158

victed,8 or both the prosecuting attorney and the tr
judge 9 of his intention to apply for a pardon. In a f
States the applicant must also notify the chief of pol
of the municipality in which the crime was commit
(Delaware), or the warden of the penitentiary (Neva
Pennsylvania), or the chairman of the board of cou
commissioners (Idaho).1° Proof of such publication a
notice is required to accompany the application.11 It
commonly provided that the pardoning authorities

waive the requirements of publication and notice,12 es
cially where there is imminent danger of death of the p

8Ariz. Rev. Code Ann. (Struckmeyer, 1928), § 5222; Rules of board,
13, 15 (10 days); Cal. Const., art. VII, § 1; Cal. Pen. Code (Deering, 19
§ 1422 (10 days); Me. Rev. Stat. (1930), ch. 147, § 51 (3 weeks); N.
Pub. Laws (1926), ch. 19, § 4; Ore. Code Ann. (1930), § 13—1804 (20 d
seldom observed); S. D. Comp. Laws (1929), § 5312 (30 days); Wyo.
Stat. Ann. (Courtright, 1931), § 80—205 (3 weeks—in capital cases, 10 da,

9Delaware, Rules of the board of pardons, Nos. 1, 2, 5 (judge who sat
the case and attorney general. or his deputy; if crime was conimitted in
city of Wilmington, also to the municipal judge and chief of police; an
convicted in the municipal court of Wilmington, also the city solicito
Idaho Const., art. IV, § 7; Rules of the board of pardons (1933), Nos. 24,
(district judge, prosecuting attorney, and chairman of board of county c
missiouers); Kan. Gen. Stat. Ann. (1935), § 62—2216 (trial judge and pr
cuting attorney); Nev. Comp. Laws (1930), § 11573, added by Nev. S
1933, p. 187 (district attorney, district judge, and warden, 30 days); Pe
sylvania, Rules of the board of pardons, No. 4 (judge, district attorney,
vate prosecutor, and warden) ; Wis. Stat. (1935), § 5709 (judges and dist
attorneys, 3 weeks’ notice).

1° See note 8, above.

11 It has been held that a pardon is not vitiated because the notice
scribed the offense inaccurately, where the inaccuraCy was not such as to
lead any one interested. In re. Eggleston, 118 Kan. 381, 234 Pac. 970 (192
When one notice has been given no further notices are required, even tho
no action is taken on the date stated in the notice given. Lynn v. Schnc
139 Kan. 138, 30 P. (2d) 117 (1934) (notice given on December 11 and
1916, for hearing December 27, 1916; 4 successive temporary paroles w
issued, the last being indefinite; on October 21, 1918, a discharge from par
was issued; held, notice was sufiicient).

12Ark. Dig. Stat. (Crawford and Moses, 1921), § 3373 (Governor may
pense with publication when he acts on his own initiative or investigati
or where the applicant is unable to pay for publication, but must in su
cases state on the certificate that it was granted without application by a
attorney or paid representative); 111. Rev. Stat. Ann. (Smith—Hurd, 193
ch. 104%, §§ 2, 7 (GOVernor may dispense with notice “when in his judgme
justice or humanity requires it”); Mo. Stat. Ann. (Vernon, 1932), § 85
(board may waive where expense of publication would work an undue ha
ship on petitioner or for any other reason deemed proper) ; Mont. Rev. Co
(Anderson and McFarland, 1935), § 12261; N. D. Comp. Laws Ann. (191
§ 11105; Rules of the board of pardons, No. 7 (no notice required in app
cations for reprieve in capital cases, or for pardon or commutation of perSo
committed to county jails or to a workhouse). In Oregon the law makes
provision for waiving the requirements—nevertheless, they are seldom, if ev
observed.

 

159

son convicted,13 or where his term of imprisonment is within
such few days of expiration that it would be expired before
the requirements of notice could be complied wit .14

The application itself is required practically everywhere
to be in writing. In California, Michigan, and Washington
it must in addition be under oat .15 In a few States oral
applications are still possible, as for example in Oregon. In
New Jersey an application may be brought before the board
either upon written petition or upon presentation by any
member of the board.1L6

Information required—It is, of course, expected that the
petition should state reasons why clemency should be
granted. In at least 12 States, however, the information re-
quired is set forth in considerable detail.17 In Minnesota,
for example, the application must “state concisely the
grounds upon which the pardon or commutation is
sought. * * *” In addition, any aliases by which the

applicant is known, the date and terms of the sentence, the

13Ariz. Rev. Code Ann. (Struckmeyer, 1928), § 5222; Rules of board, Nos.
13, 15; Cal. Const., art. VII, § 1; Cal. Pen. Code (Deering, 1933), § 1423;
Mont. Rev. Codes Ann. (Anderson and McFarland, 1935), § 12261. In
Nevada no notice is required of an application for a restoration of citizenship
to take effect at the expiration of a term of imprisonment, or for the com-
mutation of a death penalty. Nev. Comp. Laws (1930), § 11577, added by
Nev. Stat. 1933, p. 187. In Ohio the Governor may modify requirements in
capital cases when there is not sufficient time for compliance. Ohio Code
Ann. (Throckmorton, 1936), § 2211—7.

14 Ariz. Rev. Code Ann. (Struckmeyer, 1928), § 5222; Rules of board, Nos.
13, 15: Cal. Const., art. VII, § 1; Cal. Pen. Code (Deering, 1933), § 1423;
Kan. Gen. Stat. Ann. (1935), § 62—2222; Mont. Rev. Codes Ann. (Anderson
and McFarland, 1935), § 12261; Wis. Rev. Stat. (1935), § 57.08. In Kansas
a pardon may also be granted without notice where it is for the purpose of
restoring civil rights to a person already on parole. Kan. Gen. Stat. Ann.
(1935), §§ 62-1526, 76-2317, 76—2516.

15111 California and Washington this is required by rule of the board; in
Michigan, by statute. Mich. Comp. Laws (1929) § 17515.

1° New Jersey, Rules of the court of pardons, No. 4.

17 Fla. Comp. Gen. Laws Ann. (Skillman, 1927) § 8492; Idaho Code Ann.
(1932) § 19—3803; Rules of the board of pardons (1933), Nos. 11, 26; Ill.
Rev. Stat. Ann. (Smith—Hurd, 1935), ch. 1041/5, § 1; Mich. Const. art. VI,
5 9; Mich. Comp. Laws (1929) § 17515; Minn. Stat. (Mason, 1927) § 10783;
Mo. Stat. Ann. (Vernon, Supp. 1936) § 8518; N. C. Code Ann, (Michie, 1935)
§ 7642; N. D. Comp. Laws Ann. (1913) § 11104; Utah, Rules of the State
board of pardons, adopted November 20, 1934, No. 5; West Virginia, Rules
and regulations governing the pardon attorney, Nos. 1, 3. In Nevada, the forms
provided by the board require the applicant to answer certain questions con-
cerning his age, nativity, family, dependents and employment, and to state
the reasons for his applying for clemency. In Washington, the requirements
are that the application must be in writing, must set out the history of the
applicant and the facts and circumstances of the offense, and the reasons for
the application for pardon.

160

offense for which it was imposed and the names of the trial
judge and the prosecuting attorney, and the county in which
the trial was held, must be set forth on the application.
Also, a “succinct statement of the evidence adduced, at the
trial” with the endorsement as to its correctness by the trial
judge and the attorney who prosecuted the case, or his suc-
cessor in office, or an explanation as to why this statement
and endorsement are not furnished, is required in the appli-
cation. The application is supposed to set forth the age,
birthplace, parentage, and occupation and the residence of
the convict during the 5 years immediately preceding his
conviction, and a statement of other arrests, indictments,
and convictions, if any.18

In at least four States (California, Nebraska, Nevada,
and Pennsylvania) special application blanks are furnished,
and these usually contain numerous questions which must
be answered. The forms provided by the Nevada board, for
example, require the applicant to answer certain questions
concerning his age, nativity, family, dependents, and em-
ployment, and to state the reasons for his applying for
clemency. At the bottom of the application form is space
for the recommendation and signatures of the judge and
district attorney. On the back of the application sheet is
recorded information as to the offense, plea entered, term of
sentence, time served, prior record, prison conduct, and also
the recommendation of the warden. As a matter of prac-
tice, the warden fills in the information on the back and
makes his recommendation on all copies before they are
sent to the judge and the district attorney for their signa-
tures.

In Washington and West Virginia, the rules of the board
provide that in applications based upon the grounds of a
mistrial or improper conviction, the allegations must be sus-
tained by such reasons and evidence as would probably be
grounds for a new trial. In applications based upon newly
discovered evidence, the evidence must be such as would
probably have produced an acquittal on the second trial, and
(in West Virginia) must be certified to by the prosecuting

18 Minn. Stat. (Mason, 1927) § 10783.

161

attorney or the judge as germane, and an opinion given as
to its credibility.

Recommendations required—Reconnnendations or state-
ments from the judge or prosecuting attorney in the case in
which defendant was convicted, or both, must be submitted
by the applicant in several States. Thus Louisiana requires
the recommendation of the trial judge;19 Missouri, a state-
ment from the prosecuting attorney of the court in which
conviction was had;20 and Illinois, a statement by both the
judge and prosecuting attorney.21 In Utah recommenda-
tions from the judge and prosecuting attorney are required
in cases of persons confined in county jails, although no
such recommendations are required as to penitentiary in-
mates.22 In California, the rules of the board require state-
ments from the, judge, the district attorney, the jury, and
the sherifl’, setting forth their opinion of the merits of the
petition. In Minnesota and North Dakota, the petitioner’s
statement of the evidence adduced at the trial must be en-
dorsed as correct by the trial judge and the prosecutor in
the case.23 In Nevada, the blanks provided by the board
contain space for the recommendations and signatures of
the judge, the district attorney, and the warden. Wisconsin
requires recommendations from the judge and the warden,24
and Colorado from the warden alone.25 Endorsements from
two' or more private citizens are required in Georgia and
West Virginia.26

Court records required—Delaware and Wisconsin require
each application to be accompanied by a certified copy of
the docket entries and minutes of the court relating to the

19Louisiana, Rules of the board of pardons, No. 5.

20Mo. Stat. Ann. (Vernon, Supp. 1936), § 8518. Formerly a statement
from the judge of the court where conviction was had was also required.

21 111. Rev. Stat. Am. (Smith-Hurd, 1935) ch. 104%, § 1.

2’ Utah, Rules of the State board of pardons, adopted Nov. 20, 1934,
No. 15.

23Minn. Stat. (Mason, 1927) § 10783; N. D. Comp. Laws Ann. (1913)
§ 11104.

“Wis. Laws 1868, ch. 113, §§ 3, 7.

245C010. Stat. Ann. (Michie, 1935) ch. 131, § 118. The opinions of the
trial judge and the district attorney are usually also obtained.

2° Georgia, Rules governing application for executive clemency (1934), No.
2; West Virginia, Rules and regulations of the Governor governing the
pardon attorney, Nos. 1, 3. A similar requirement in Arizona is limited
to applicants for pardon already at liberty on parole. Rules of board,
No. 16.

162

case, as well as a brief statement of the reasons for the ap-
plication, a short history of the case and (in Delaware) a
schedule of the papers, of which six separate copies must
be filed, so that each member of the board may have a
copy.27 Florida requires a copy of the indictment or infor—
mation upon which the conviction was had; 28 Louisiana
and North Carolina require a certified copy of the indict—
ment, verdict, and judgment, and if the applicant is confined
in the State prison, his prison record; 29 Washington re-
quires a certified copy of the record of conviction, a certified
copy of the evidence or statement of its substance, certified
by the judge or prosecuting attorney, and if judgment was
on a plea of not guilty, a copy of the indictment or infor-
mation and a statement of at least two persons as to the cir-
cumstances of the offense; statements should also be filed
from the judge and prosecuting attorney, together with the
recommendation of the prosecuting witness and as many
members of the jury as possible.”

Procedure for filing application—The mere mechanics of
filing the application are rather complex in some States. At
least 11 States have requirements that the applications must
be filed a certain number of days (usually 10 to 30) before
the hearing.31 Thus in California, a written notice of in-
tention to apply for a pardon must be served upon the dis-
trict attorney of the county where conviction was had and
proof by affidavit of the service must be presented to the

 

2" Delaware, Rules of the board of pardons, No. 4; Wis. Laws 1868, ch. 113,
§ 4.

”Fla. Comp. Gen. Laws Ann. (Skillman, 1927) § 8493.

29Louisiana, Rules of the board of pardons, No. 1; N. C. Code Ann. (Michie,
1935) M; 7642, 7739.

3° Washington, Rules and regulations governing pardons (1899).

31Cal. Const. art. VII, ’3‘ 1; Cal. Pen. Code (Deering, 1933) § 1421 (10
days) ; Delaware, Rules of the board of pardons, Nos. 1, 5 (10 days) ; Florida,
Rules of the State board of pardons; Idaho Code Ann. (1932) § 19—3803;
Rules of the board of pardons (1933), Nos. 11, 26 (10 days); Louisiana,
Rules of the board of pardons, No. 1 (10 days) ; Nevada, Rules of the board of
pardons (adopted March 9, 1936), No. 10 (30 days by statute but only 15
days by rule of the board) ; New Jersey, Rules of the court of pardons, No. 4
(first of month preceding the term at Which a hearing is sought) ; N. D. Comp.
Laws Ann. (1913) § 11105; Rules of the board of pardons, No. 7 (30 days);
Pennsylvania, Rules of the board of pardons, No. 4 (2 weeks, capital cases
only) ; Utah, Rules of the State board of pardons, adopted November 20, 1934,
No. 6 (3 Weeks) ; Wisconsin, in accordance with the Governor’s rules, all appli-
cations for executive clemency with the accompanying papers have to be filed
at the executive oflflce at least 10 days prior to the hearing.

163

Governor at least 10 days before the Governor acts upon the
application, and a copy of the notice must also be published
for 30 days in a newspaper in the county where conviction
was had. In Idaho the first step in applying for clemency
is for the convict to notify the secretary of the board (the
secretary of State), by letter, of his intention to apply. This
letter is usually informal. A printed formal notice of in-
tention to apply must be published in a newspaper of gen—
eral circulation at least once per week for 4 weeks and a
copy of this notice mailed to the warden of the penitentiary
at least 10 days before the meeting of the board; also,
proof must be submitted to the secretary of the board at
least 5 days before the meeting to show that this notice
has been served on the district judge, prosecuting attorney,
and chairman of the board of county commissioners of the
county where conviction was had. A copy of the application
itself must be served on or mailed to each member of the
board of pardons and the warden at least 10 days before the
hearing. In Nevada, notice of application for clemency
must be written in quadruplicate, specifying therein the
court in which judgment. was rendered, the amount of the
fine or forfeiture or kind or character of punishment, the
name of the person in whose favor the application will be
based, and the time when it will be presented; one copy must
be served upon the district attorney and one on the district
judge of the county wherein conviction was had; a third
copy must be served upon the warden of the prison and the
original must be filed with the clerk of the board of pardons.
In case of fines or forfeitures, a similar notice must also be
served upon the chairman of the board of county commis-
sioners.

Apparently only one State, Pennsylvania, charges a fee
for the privilege of applying for clemency. There a filing
fee of $10 is charged and the forms upon which application
must be submitted cost $1 per set.32 Of course, in the 17
States where the applicant is required to publish notice in
the newspapers,33 he must pay for such publication, although
in one of these States, North Carolina, if the applicant has
no means to pay for such advertisement, the clerk of the

31 Pennsylvania, Rules of the board of pardons, No. 4.
33 See ante, notes 4 to 7.

164

court in which conviction was had is asked to post the noti
In six other States, as we shall see,84 publication is ma
by the pardoning authorities and the cost is a matter
public expense.

Limitations on repeated applications—Only a few Sta
seem to have imposed any limitations on the right to s
:mit further petitions after one has been refused. In N
Jersey after a petition has been denied or dismissed,
cannot be renewed within 2 years except in special circu
stances, and then only upon order of the Governor
the investigating committee.85 In Florida, Georgia,
braska, and Utah no application for rehearing will or
narily be heard until after 1 year, and in Delaware a
Pennsylvania, until after 6 months.36 In the States wh
the board holds regular meetings only semiannually (Co
necticut, Nevada, North Dakota),37 the applicant, of cour
must wait at least 6 months. In Minnesota when an a
plication has been once heard and denied on its merits
subsequent application may be filed without having endors
thereon the consent of two members of the board.88
West Virginia a case once acted upon will not be reopen
unless the applicant presents new and material facts.39
some States, apparently, there are no restrictions either
.statute or administrative rule on repeated applicatio
While perhaps it is true that a capable board will not
likely to give very serious consideration to a case where
has just recently denied clemency and where no new fac
are shown, yet the fact that the application may be filed
all requires some consideration and allows the board

34 See post, Investigation, note 41.

”New Jersey, Rules of the court of pardons, Nos. 10, 11.

38Delaware, Rules of the board of pardons; Florida, Rules of the Sta
5board of pardons; Georgia, Rules governing application for executive clemen
(1934), No. 8 (except upon discovery of new facts); Nebraska, Rules of t
board of pardons; Utah Rev. Stat. Ann. (1933) § 67—0—5; Rules 01' t1
State board of pardons, adopted November 20, 1934, No. 8; Pennsylvani
‘Rules of the board of pardons, No. 6.

37 See post, Hearing. Conn. Gen. Stat. (1930) § 1999 (May and N
vember); Nevada, Rules of board of pardons, adopted March 9, 1936, No.
(May and November); N. D. Comp. Laws Ann. (1913) § 11103 (second (1
-of June and December). .

”Minn. Stat. (Mason, 1927) § 10784.

N 89iiules and regulations of the governor governing the pardon attorne
.. o. .

165

docket to be cluttered up with cases having no merit—and
every so often undoubtedly allows a prisoner to win a par-
don by mere persistence.

INVESTIGATION

In the great majority of States the pardoning authorities
act only upon the papers filed in the case. No personal
investigation is made.

Documents required—It is, therefore, natural to find a
tendency to require increasing completeness in the informa-
tion contained in the papers filed. We have already seen
that in 17 States the applicant himself has the burden of
making public his intent to apply for a pardon, either by
newspaper advertisements or by posting.40 In seven addi-
'ional States the pardoning authorities make such publica-
tion.41 We have also seen that in 13 States the applicant
is required to notify the prosecuting attorney and perhaps
the trial judge.42 In 14 other States, the pardoning authori-
ties are required to give such notice,43 and in 7 others the

 

4° See ante, p. 157.

41Iowa Code (1935) § 3818 (Governor must cause publication, in capital
or life imprisonment cases only); Md. Const. art. II, § 20 (Governor must
publish notice); Mont. Const. art. VII, § 9; Mont. Rev. Codes. Ann. (Ander-
son and McFarland, 1935) § 12251 (board is required to cause publicatiozi);
Neb. Comp. Stat. (1929) § 29—2606 (secretary of the board must publish
notice); New Jersey, Rules of the court of pardons, No. 7 (sheriff must
post list of applicants in the court house); Ohio Code Ann. (Throckmorton,
1936) §§ 2211—8 (board of parole must publish notice). In Pennsylvania,
the duty of publishing notice is on the applicant in capital cases but in
all other cases on the secretary of the board. Rules of the board of
pardons, Nos. 4, 7.

42 See ante, pp. 157—158.

43 La. Code Crim. Proc. Ann. (Dart, 1932) art. 574 (prosecutor is noti-
fied and given chance to appear), Rules of the board of pardons, No. 5
(trial judge’s recommendation is usually required before board will recom-
mend); Mass. Laws Ann. (Michie, 1933) ch. 127, §§ 153, 154 (executive
secretary notifies attorney general and district attorney; if conviction was
in superior court, the trial justice); Mich. Pub. Acts 1937, No. 255, ch.
III, § 14 (within 10 days after application is filed, parole board must
notify the trial judge and prosecuting attorney); Minn. Stat. (Mason,
1927) § 10784 (secretary of the board mails notice to trial judge and
prosecutor); Mont. Const. art. VII, § 9; Mont. Rev. Codes Ann. (Anderson
and McFarland, 1935) § 12251 (district judge, county attorney and sheriff);
Neb. Const. (1920) art. IV, § 13; Neb. Comp. Stat. (1929) § 29—2606
(personal service must be had upon the district judge, county attorney and
sheriff); New Jersey, Rules of the court of pardons, No. 6 (pardon clerk
must notify judge, prosecutor, sheriff, and if conviction was had in a
municipality, the chief of police); N. D. Comp. Laws Ann. (1913) § 11105;
Rules of the board of pardons, No. 7 (clerk of the board mails notice of

166

pardon authorities may notify the judge and prosecutor
request them to submit statements or opinions.44 In P
sylvania, copies of the calendar of cases pending befor
pardon board are also sent to the fire marshal, the secre
of banking, the security commissioner, the secretar
public instruction, and the game commission for their 0

information.45 The officials so notified are usually no
quired to reply to such requests, except in 14 States.46

time and place of hearing to judge and prosecuting attorney); Ohio
Ann. (Throckmorton, 1936) § 2211—8 (board notifies trial judge and
cuting attorney; pardon attorney writes to judge, prosecutor, and wa
and invites their views) ; in Pennsylvania, the secretary of the board n
the trial and custodial officials in all except capital cases in which
cant is required to serve such notice; Rules of the board of pardons,
4, 7; Tenn. Code Ann. (Williams, 1934) § 11817 (board must notify
trict attorney and judge); Tex. Ann. Rev. Civ. Stat. (Vernon, Supp. 1
art. 6203, § 3 (secretary of the board notifies prosecuting officials
sheriff) ; Utah Const. art. VII, § 12; Utah Rev. Stat. Ann. (1933) § 67
Rules of State board of pardons, adopted November 20, 1934, Nos. 6, 7
judge, prosecuting attorney and prison warden or other custodian must be
fled); Vt. Pub. Laws (1934) § 8885 (Governor, designating a place and
for a hearing, must notify State’s attorney of the county where convi
was had).

“Ala. Code Ann. (Michie, 1928) § 2780 (board may call upon any j
solicitor, or other public officer for information or recommendations
may seem necessary or desirable); Ariz. Rev. Code Ann. (Struckmeyer, 1
§ 5221 (board may require judge or county attorney to submit wi
delay a statement of relevant facts) ; Mont. Rev. Codes Ann. (Anderson
McFarland, 1935) § 12260 (Governor may require judge or county atto
to furnish facts); N. Y. Code Crim. Proc. (Gilbert, 1935) § 695 (on re
of the Governor, trial judge and district attorney are required to su
a statement of pertinent facts); S'. D. Comp. Laws (1929) § 5558 (b
may require prOSecuting attorney to submit without delay a statemen
material facts); West Virginia, Rules and regulations governing the pa
attorney, Nos. 4, 6, 8 (pardon attorney inquires of the warden and obt
the views of the judge and district attorney; when neither of the 1.
two favors clemency, petition is not even sent to the Governor excep
capital cases or unless he requests). In Virginia, it is a general p
where petition is deemed worthy, to obtain a prison report and recomme
tions from the trial judge and prosecuting attorney, and if the prisone
under 18 years of age, from the welfare department.

45 Pennsylvania, Rules of the board of pardons, Nos. 7, 9.

“Idaho Code Ann. (1932) § 19—3903 (prosecuting attOrneys and ju
required to give the board all the information they can as to the ca
and character of the prisoner; not generally complied with in practi
Iowa Code (1935) § 3820 (Governor may require judge, prosecuting atto
or clerk to furnish minutes of the evidence taken at the trial, toge
with other relevant facts); Louisiana, Rules of the board of pardons, N
(board’s policy is to recommend no pardons except where trial judge
recommends); Mass. Laws Ann. (Michie, 1933) ch. 127, §§ 153, 154 (
trict attorney, or if conviction was in a district court the justice the
is required to report the facts and give recommendation); Mich. Pub.
1937, No. 255, ch. III, § 14 (within 10 days of receiving notice, judge
prosecuting attorney must reply, giving opinion as to advisability of grant
application); Mo. Stat. Ann. (Vernon, Supp. 1936) § 8518 (Governor
require statement from prosecuting attorney if application does not alre

167

where such reports are required they are not always made.
In Pennsylvania, for example, the statute makes it the duty
of judges and prosecuting attorneys to comply promptly
with the board’s request; nevertheless, fully one-fourth of
such requests are never answered. In Idaho where the law
also requires prosecutors and district judges to furnish the
pardon board with all the information they can give as to
the career and character of the prisoner, there seems at
present to be only one judge in the State who ever complies
with the request for such a report.

In Nevada, Utah, and Alabama trial judges are re-
quired, immediately after sentence in serious cases, to sub—
mit to the Governor or board a statement of the facts in
the case and any information which may later be of aid in
passing on applications for clemency.47 In Nevada, a state-
ment from the district attorney is also required immediately
after rendition of judgment.

Even where not specifically demanded, letters from the
judge and jurymen who tried the case, the prosecutor, and
responsible citizens are accepted and usually given much
weight.

Personal investigation—Beyond assembling such records
of the criminal proceedings and the statements and recom-
mendations of judges, prosecutors, prison officials, and oth-

o

contain such statement) ; Mont. Rev. Codes Ann. (Anderson and McFarland,
1935) § 12260 (Governor may require judge or county attorney to furnish
without delay a statement of relevant facts); Neb. Comp. Stat. (1929) §
29—2607 (board may require “definite recommendation” from judge, county
attorney, and sherifi; in practice these officials are given opportunity but
not required to make recommendations); Nev. Comp. Laws (1930) § 11574,
added by Nev. Stat. 1933, p. 187 (district judge, attorneys, and county com-
missioners on receiving notice, must submit statement in writing of all mat-
ters within their knowledge as to the merits); N. H. Pub. Laws (1926) ch.
19, § 4 (prosecutor may be required to furnish concise statements of the
facts), N. H. Laws 1931, ch. 117 (and if petitioner is serving sentence in
prison, the board of prison trustees is also required to submit a report);
Ore. Code Ann. (1930) § 13—1805 (Governor must require either trial
judge or district attorney to furnish statements of. all relevant facts); Pa.
Stat. Ann. (Purdon, Supp. 1936) tit. 71, § 299a (statute makes it the duty of
judges and district attorneys to comply promptly with board’s request for
information and advice); Wyo. Rev. Stat. Ann. (Courtright, 1931) § 80—206
(duty of prosecuting attorney to submit report within ten days of receiving
notice). In Maryland, the attitude of the trial judge is obtained and given
great weight.

47 Nev. Comp. Laws (1930) § 11058; Utah. Rev. Stat. Ann. (1933) §§
105-36—21, 105—37—6; Ala. Code Ann. (Michie, 1928) § 5322 (in all cases
Where defendant is sentenced for a term of 5 years or more).

7 3115—39—v0L. m 12

 

168

ers interested, most States make no effort to obtain infor

tion as to the defendant’s character, family history, or ot
factors relevant to the propriety of returning him to soci
In most States no personnel exists for making any perso
investigation. A Governor or pardon board made up of

cials devoting mostof their time to other duties (secret-
of State, attorney general, etc.), without any investiga
staff cannot do more than examine the papers filed with

application.

In Texas one member of the three-man pardon boar
stationed at the State prison system at Huntsville, to in
view personally the individuals whose cases are pending
fore the other two members who sit at Austin. He also
views cases of “forgotten men” in the prison. In sev
States, as we shall see in our next section, the board In
at the prison, and thus has opportunity for personal in
views, but this is hardly what we mean by a case investi
tion.

Indiana, in 1935, provided for a special investigator
assist the Governor’s advisory commission on clemency.48
New Jersey, where the pardoning power is in a court
pardons composed of the Governor, the chancellor, and
six judges of the Court of Errors and Appeals, all appli
tions are first investigated by a committee of inquiry c
sisting of four of the judicial members,49 and the Grover
may assign this committee or any member of the court
pardons to visit any penal institution from which an inm
has applied for clemency to inquire into the merits of
case.50

Investigation by parole authorities—There is a growi
movement to consolidate the pardoning with the paroli
authority. Today about half the States have in greater
less degree combined the administration of the two fui
tions.51 Where the paroling authority has the necessa
personnel to make individual case investigations, this co
solidation makes such investigation possible also in pard
cases. In Vermont, the State probation officer is requir

‘3 Ind. Stat. Ann. (Burns, Supp. 1936) § 13-1307.
‘9 New Jersey, Rules of the court of pardons, No. 8.
“Id. No. 9.

“See ante, pp. 100-102.

169

to investigate and report on pardon applicants when re-
quested by the Governor.“

Missouri in 1937 created a board of probation and parole,
composed of the Lieutenant Governor and two others ap-
pointed by the Governor, with a salary of $3,000 each (in—
cluding the Lieutenant Governor, in addition to his, salary
as such), with power to study prisoners in the State correc-
tional and penal institutions and to recommend paroles,
commutations, and pardons, and supervise persons released
on parole or conditional pardon.153

Psychiatric caca'mination.——Wisconsin subjects all appli-
cants to a form of investigation shockingly rare throughout
the country—a psychiatric examination. The Wisconsin
board investigates carefully the judicial history of the case
as well as the social, economic, and psychological back-
ground of the applicant. All applicants are given a mental
and physical examination by the psychiatric field service of
the board of control, the same as in parole cases. The re-
port of these examinations is filed in the executive office
with other papers in the case. In 1937 Tennessee created
a new board of pardons, paroles, and probations, with
power to investigate the social, physical, mental, and psychi-
atric conditions and histories of persons under consideration
for clemency.“

— HEARINGS

Formal public hearings required in most States.—No
formal hearings are usually provided for in States where
the Governor himself exercises the clemency power. \Vhere
a board functions, either as a final arbiter or in an advisory
capacity, more or less formal hearings are usually held.
This is true in 35 States.55 In some of these, however, the

‘1 Vt. Pub. Laws (1934) § 8866.

53Mo. Stat. 1937, p. 400.

54Tenn. Code Ann. (Williams, 1934) § 11843.3, added by Tenn. Laws 1937,
ch. 276, § 3.

“Alabama, Arizona, Arkansas, California, Connecticut, Delaware, Florida,
Georgia, Idaho, Illinois, Indiana, Iowa, Louisiana, Massachusetts, Michigan,
Minnesota, Missouri, Montana, Nebraska, Nevada, New Jersey, New Mexico,
North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota,
Tennessee, Texas, Utah, Vermont, Washington, Wisconsin, and Wyoming. In
some of the other States, where there are no pardon boards, more or less
formal hearings are sometimes held by the Governor.

170

hearings are closed to the public, no oral testimony is h
and the applications are passed upon solely on the wr
statements submitted. This is true in California, for e
ple. In 13 States it is specifically provided that the
ings shall be open to the public.56 In several others
provided that any person has the right to appear at
a hearing and be heard.‘57 In some States the meeting
semipublic; persons having a legitimate interest in the
ceedings and representatives of the press are admitted
idle curiosity seekers are not.

In all States the audience, if any, is almost always s
and seldom does anyone appear to oppose the grantin
the petition.

The purpose of the provisions for “open sessions” '
provide full publicity to the exercise of the pardoning p
and to prevent the evils arising from secret meetings
inadequately considered and clandestinely granted parc
A similar purpose underlies the provision found in a
States (Pennsylvania, Montana, and Nebraska) makin
unlawful for any person to approach individual mem
of the board to discuss any pardon application.58 In P
sylvania and Nebraska, this rule seems to be enforce
avoid undue pressure on the members. In Montana, on
other hand, it is flagrantly violated; anybody can see
member of the board about a pardon at any time.

56Ala. Const., art. V, § 124; Florida, Rules of the State board of par(
Idaho Const., art. IV, § 7; La. Code Crim. Proc. Ann. (Dart, 1932), art.
Minn. Stat. (Mason, 1927), § 9963—3; Mo. Stat. Ann. (Vernon, 193
8519; Mont. Const., art. VII, § 9; Neb. Const. (1920), art. IV, § 13;
Carolina, Rules of the board of pardons, Nos. 9, 10, 11; Pa. Const., art
§ 9; S. D. Const., art. IV, § 5; S. D. Comp. Laws (1929) §§ 5556, 5
Utah Const., art. VII, § 12; Utah Rev. Stat. Ann. (1933) § 67—0—1.
Michigan public hearings are required on application of person se
on conviction for murder, forcible rape, robbery While armed, kidna
extortion, or breaking and entering; the attorney general may also de
a public hearing in any other case. Mich. Pub. Acts 1937, No. 255, ch.
§ 14.

57 Mont. Rev. Codes Ann. (Anderson and McFarland, 1935) §§ 12
11225-1; Neb. Comp. Stat. (1929) §§ 29—2608, 29—2609, 29—2611; Nev
Rules of board of pardons, adopted March 9, 1936, No. 1; North Da
Rules of the board of pardons, Nos. 9, 10, 11; S. D. Const., art. IV,
S. D. Comp. Laws (1929) §§ 5556, 5559. In most other States Where a
lie hearing is had, any person desiring to appear in a case will usuall
heard.

58111 Montana and Pennsylvania, this prohibition rests upon a rule of
board; in Nebraska it is incorporated in the statute. Neb. Comp. Stat. (1.
§ 29—2617.

171

Time of hearing—In half of the States the time of hear-
ing is specifically prescribed either by statute 5" or by rule
of the board.60 In other States meetings are held irregu-
larly whenever cases arise requiring the board’s attention.

Place of hearing—Meetings are usually held in the State
capitol, but in Connecticut, Massachusetts, Nebraska, Ne-
vada, New Mexico, Tennessee, Utah, and Washington, regu»
lar meetings are held at the prison. Some meetings are held
at the prison in Arizona, Idaho, Minnesota, North Dakota,
and Wyoming. The California board holds some of its
meetings in San Francisco or Los Angeles instead of Sacra-
mento.

Personal interview with the convict—Meetings at the
prison permit of personal interviews of the applicant. In
some other States, also, applicants are brought in to appear
before the board. In Arizona, with very few exceptions,
every person whose case is heard by the board appears
personally, is questioned by the board members, and is per-
mitted to make any statement he wishes. The same is true
in Connecticut, Massachusetts, Michigan, Missouri, Tennes-
see, and Washington. '

59 Conn. Gen. Stat. (Supp. 1935) § 787c (semiannually, in May and Novem-
ber; special sessions when occasion arises); Idaho Code Ann. (1932) §§ 19-
3801, 19—3802 (quarterly); 111. Rev. Stat. (1935) ch. 104a, § 8 (quarterly);
Ind, Stat. Ann. (Burns, Supp. 1936) § 13-1303 (quarterly; special meetings
on call of chairman or Governor) ; Minn. Stat. (Mason, 1927) § 10782 (quar—
terly, in January, April, July, and October; because of number of applications,
interim hearings are frequent); Mont. Rev. Codes Ann. (Anderson and Mc-
Farland, 1935) § 12248 (monthly; special meetings may be called by the
president or any two members—however, the board does not always meet
regularly as the law requires; the usual practice is for the Governor to re-
quest a meeting whenever he has granted a pardon which the board must
pass upon); N. D. Comp. Laws Ann. (1913) § 11103 (semi-annually, in June
and December; special meetings on call of Governor); Wyo. Rev. Stat. Ann.
(Courtright, 1931) §§ 80—101, 80-103, 80—104 (quarterly; special meetings
if necessary).

60Alabama (monthly); Arizona (required to meet monthly; actually meets
every 2 months); California (at least once every 2 months—usually once a
month); Delaware (first Thursday of each month except August; special ses-
sions for capital cases); Florida (semiannually); Georgia (monthly); Louis-
siana (quarterly in March, June, October, and December, except that no meet-
ings are held in June of legislative years); Nebraska (monthly, except
August); Nevada (semiannually in May and November; special meetings on
call of the Governor); New Jersey (semiannually, in April and September);
New Mexico (bimonthly); Oklahoma (no definite time for meetings, but par-
don attorney tries to have one meeting each month) ; Pennsylvania (monthly
except in July and August); Tennessee (monthly); Utah (monthly except in
July and August); Washington (bimonthly); Wisconsin (monthly, lasting
2 days if necessary).

172

Such personal interviews can and should be very help
to the board in passing upon petitions. In many Sta
however, the board feels that it is‘better not to have
applicant appear at the hearing. In Oklahoma board In
ings were formerly held at the prisons, and applicants w
permitted to appear before the board, but the members
the board decided that the injection of the prisoner’s
sonality did not aid them in arriving at just decisions ‘
merely took up time. Today the board meets in the office
the pardon and parole attorney in Oklahoma City, which
the records in the case, and meetings are not disturbed
sympathy for the individual applicant. In \Visconsin so
time ago the board held one session in the State prison
VVaupun to make possible the personal appearance of
applicants, but the discipline of the prison was so disrup
by a pardon hearing within institutional walls that the
periment was not repeated. In Alabama and Idaho, wl
applicants do not ordinarily appear personally, a perso
interview is granted if desired. The New Mexico and U
boards sometimes permit personal appearance also.

In States where the pardoning power is administered
the Governor without the assistance of a. board, hearings
usually held in the Governor’s oflice, and the convict d
not ordinarily appear personally. The present Goveri
of Arkansas, Hon. Carl E. Bailey, has adopted the pract
of having the convict brought to his oflice to talk to h'
This is also sometimes done in Mississippi.

Power to subpena and swear witnesses.——Power to St
pena witnesses is possessed by the pardoning authorities
11 States,61 and in an equal number the latter may take tes
mony under oath.62 The Indiana and South Carol'

“Conn. Gen. Stat. (Supp., 1930), § 2000; Del. Rev. Code (1935), § 4
Idaho Code Ann. (1932), §§ 19—3809, 19—3811; Ind. Stat. Ann. (Burns, Su
1936), § 13—1305; Md. Code Ann. (Bagby, 1924), art. 14, § 49; Mass.
Ann. (Michie, 1933), ch. 127, §§ 153, 154; Neb. Comp. Stat. (1929), §
2610; N. H. Pub. Laws (1926), ch. 19, § 7; N. Y. Consol. Laws (Ca
1930), ch. 10—h, §§ 263—265; N. D. Comp. Laws Ann. (1913), § 11107; Te
Laws 1937, ch. 276, § 3. In Delaware, witnesses summoned at the requ
of the applicant must be paid by him; those summoned at the request of
board members are paid by the State.

62Cal. Stat. 1915, p. 465; Cal. Gen. Laws (Deering, 1931), Act 1908; Id
Code Ann. (1932), §§ 19—3809, 194811; Ind. Stat. Ann. (Burns, Supp. 193
§ 13—1305; Md. Code Ann. (Bagby, 1924), art. 41, § 49; Mass. Laws A
(Michie, 1933), ch. 127, §§ 153, 154; Mich. Pub. Acts 1937, No. 255, ch. I

173

boards even have power to punish for contempts committed
in their presence.63

Attomeys.—Attorneys are permitted to appear on behalf
of the applicant in about half the States.64 In some of
these, this is the usual practice—as in Delaware, where the
procedure is too complicated for an applicant properly to
present his petition without the aid of an attorney.65 In
Florida, one attorney may appear at a hearing representing
a hundred different applicants or more. In other States it
is unusual for an attorney to appear.66 In some States (for
example, Montana), parties opposed to granting the clem-
ency sought are also expressly permitted to appear by
attorney.67

State not represented in oppositz'on.—Surprisingly few
States have any provision for having the State represented,
to oppose the application. Apparently only the Michigan

§§ 14, 15; Mo. Stat. Ann. (Vernon, 1932), § 8516; Neb. Comp. Stat. (1929),
§§ 29—2608. 29—2609, 29-2611; Nev. Comp. Laws (1930), § 11575; added by
Nev. Stat. 1933, p. 187; N. Y. Consol. Laws (Cahill, 1930), ch. 10 b, §§ 263—
265; Tenn. Laws 1937, ch. 276, § 3. In some or these States, however (e. g..
Indiana. Maryland, Missouri, and Tennessee), the usual practice is to allow
the petitioner and other witnesses to make their statements informally, with-
out being sworn. In others (e. g., Nebraska and Nevada), statutes require
that all oral testimony must be under oath. In Alabama and Connecticut
witnesses are also sworn, although apparently the practice rests only on rule
of the board.

”Ind. Stat. Ann. (Burns, Supp. 1936), § 13—1305; 8. C. Code (1932), §
3439.

“111. Rev. Stat. Ann. (Smith—Hurd, 1935), ch. 104%, § 9; Minn. Stat.
(Mason, 1927), § 9963—3; Mont. Rev. Codes Ann. (AnderSOn and McFarland,
1935), §§ 12253. 12254; Neb. Const. (1920), art. IV, § 13; Neb. Comp. Stat.
(1929), § 29-2617 (persons representing applicants are forbidden to approach
board members or discuss matter with them “except at the time set for formal
hearing”); Utah Rev. Stat. Ann. (1933), § 67—0—4. In Alabama, Arizona,
Connecticut, Delaware, Florida, Indiana, Louisiana, Nevada, New Hampshire,
New Jersey, New Mexico, North Carolina, Oklahoma, Pennsylvania, Tennessee,
Wisconsin, and Wyoming attorneys are permitted by rule of the board of
pardons. In Arkansas, where there is no board, attorneys appear in hearings
before the Governor in about half the cases.

“5 Attorneys also appear in most cases in Maine, Massachusetts, North Caro-
lina, Pennsylvania, South Dakota, and Texas; and in about half the cases in
Illinois, Louisiana, Minnesota, Montana, and Nevada.

“The boards of Arizona, Idaho, Indiana, New Mexico, and Oklahoma dis-
courage the appearance of attorneys. Attorneys appear in perhaps 10 per
cent of the cases in Florida and Wyoming, and in perhaps a third of the cases
in Connecticut and Minnesota. A

0' Mont. Rev. Codes Ann. (Anderson and McFarland, 1935), §§ 12253, 12254.
In Oklahoma, on rare occasions an attorney for petitioner or protestants is
heard. In Wisconsin, although there is rarely any opposition appearance,
some years ago, in connection with the pardon application of a convicted
banker, the prosecuting attorney and a representative of the banking depart-
ment appeared and opposed.

174

statute, enacted in 1937, specifically requires that the public
be represented at the hearing by the attorney general or a
member of his staff. This applies ‘only to applications of
persons serving sentence for serious crimes (murder, forcible
rape, robbery while armed, kidnapping, extortion, or break-
ing and entering); but the attorney general may also de-
mand a public hearing and the right to appear in any other
case.68 In Louisiana and Massachusetts the prosecutor who
tried the case, or his successor, must be notified of the hear-
ing and has the right to appear.69 The Massachusetts stat-
ute provides that the “attorne* general, district attorney or
a justice as the case may be, or their representatives, may be
present at the hearing, examine the petitioner’s witnesses
and be heard.” In Maine, the Governor and council (in
whom pardoning power is vested), may require the county
attorney to be present at the hearing.70 Similarly in Dela-
ware the board may request the attorney general or one of
his deputies to be present and represent the State,71 and
this is usually done.

On the other hand, in Minnesota the public defender may
be ordered by the trial judge before whom the applicant
was convicted to appear on his behalf before the pardon
board.72

Conduct of heafings.—In conducting the hearings there
is a noticeable tendency on the part of some pardon board
members to cross-examine witnesses on the facts of the crime
and in a sense to retry the original criminal case. Lawyer-
members especially are inclined to this line of approach.
This has been observed in the hearings of the Arizona board
and is probably true elsewhere. In some States the legisla-
ture has attempted to guard against such a tendency by
specifically enacting that the board shall in no case assume
to act as a court of review, but shall confine itself to a con-
sideration of those matters only “which properly bear upon
the propriety of extending clemency” (Illinois, Massachu-

68 Mich. Pub. Acts 1937, No. 255, ch. III, § 14.

69 La. Code Crlm. Proc. Ann. (Dart, 1932) art. 574; Mass. Laws Ann.
(Michie, 1933) ch. 127, §§ 153, 154.

7° Me. Rev. Stat. (1930) ch. 147, § 51.

“Delaware, Rules of the board of pardons, Nos. 5, 7, 8.

”Minn. Stat. (Mason, 1927) § 9963-3.

‘

., .. i
"7 64 m H

. up "_v A
U) U W wad-av V.LV..hi-.r"r.‘

175

setts, Nebraska).73 The Nebraska Supreme Court has felt
called upon to point out that the pardoning power is not a
corrective judicial process. “It is,” the court said, “of course,
not intended by the constitution that the pardoning power
should review and correct the decisions of the court. The
fact of the defendant’s guilt or innocence of the crime with
which he is charged should be finally settled by the courts,
when the evidence can be received and weighed under the
well-established rules of law, and where it is supposed that
the truth can be ascertained with as much certainty as hu-
man inperfection will admit.” 74

Decisions are usually arrived at on the day of the hearing,
the time devoted to each case is usually only a few minutes.
At one of the recent semiannual meetings of the Florida
board, almost 1,300 applications were disposed of in a ses-
sion lasting 4 or 5 days. In Louisiana, the board generally
disposes of 8 to 10 applications per hour, giving an average
of some 6 to 10 minutes to each case. In Wisconsin, the
board schedules 10 minutes for each case. At a meeting of
the Arizona board held July 20, 1936, in a morning and
afternoon session totaling 5 hours, the board considered 52

'cases. This is an average of only 6 minutes devoted to

each case.

These States have not been singled out as peculiar, but
rather as typical of the procedure before most of the boards.
In Montana, although the law allows the board 20 days in
which to reach a decision, usually the board votes im-
mediately after a few minutes’ discussion and rarely denies
any clemency recommended by the Governor. In such casual
and hurried consideration of the cases, reliance is placed al-
most wholly upon the number of recommendations received
as against the number of protests, together with the influ-
ence of whatever pressure groups may be interested in the
case. In cases where public interest is aroused, hundreds of
letters may be addressed to the board regarding the case.
A few years ago, 500 people wrote letters to the Governor

73111. Rev. Stat. Ann. (Smith-Hurd, 1935) ch. 1041/2, § 10; Mass. Laws Ann.
(Michie, 1933) ch. 127, §§ 153, 154; Neb. Const. (1920) art. IV, § 13; Neb.
Comp. Stat. (1929) §§ 29-2606, 29—2612.

7‘ See Carlsen v. State, 129 Neb. 84, 94, 261 N. W. 339, 344 (1935) quoting
from Evers v. State, 87 Neb. 721, 127 N. W. 1066 (1910).

176

of Ohio and 4,000 signed petitions asking clemency for a
certain convict—who, incidentally,_had a crime record ex-
tending over 11 years. It is not surprising that under such
methods well-known gangsters, habitual criminals, and
prisoners having venereal and other diseases are frequently
released. In Alabama, Florida, North Carolina, and some
other States, on the other hand, final action is not taken
until some days or even weeks after' the hearing, when the
influence of children’s cries and mother’s tears has abated.

A simple majority vote governs the action of the board in
most States. However, in North Dakota no pardon or com-
mutation can be granted except upon vote of four of the
five members.75 In Connecticut 76 and Minnesota 77 unani-
mous approval is required. This increases the difficulty of
obtaining favorable action considerably, especially in Con-
necticut, Where there are six members of the board, all of
whom must be convinced.

Of the nine States where the board itself has the direct
pardoning power, four (Florida, Nevada, New Jersey,
Utah) provide that while action may be by a simple ma-
jority, the Governor must be one of such majority. In
Louisiana, it is the policy of the board not to recommend
a pardon unless the judge of the court wherein the con-
vict was convicted (who is a member of the board) votes in
the affirmative.

Even where public hearings are provided for, the vote
of the board is commonly taken in secret executive session.
In Nevada, however, the vote of each member is a matter of
public record—a fact which has been said to obstruct fair
consideration of the case because the board members, all
of them holding elective office (the Governor, the attorney
general, and three justices of the supreme court), are too
concerned about possible popular reaction to their votes. In
Nebraska, New Jersey, Utah, and perhaps other States, the
vote of the individual members of the board is also a mat-
ter of public record.

75 N. D. Laws 1935, ch. 248.

7° Conn. Gen. Stat. (1930) 5 1999.

"Minn. Const. art. V, § 4 as amended; Minn. Stat. (Mason, 1927)
5 10779.

1
l

177
DELIVERY AND ACCEPTANCE

In 1833 Chief Justice Marshall laid down the rule that
“a pardon is a deed, to- the validity of which delivery is
essential, and delivery is not complete without accept-
ance.” 78 We shall examine to what extent this statement
remains true.

Beltway—There is no question as to the correctness of
this statement so far as delivery is concerned. A pardon
is not operative unless and until delivered.79 If not yet
delivered it may be revoked; but after delivery a pardon
is not revocable.80

Delivery to the convict’s attorney or to the person suing
for it in his behalf is sufficient.81 Ordinarily delivery to the
warden of the institution where the convict is confined is
sufficient delivery.82

Acceptance—Although the rule that delivery is necessary
is uncontroverted, Judge Marshall’s further statement that
“delivery is not complete without acceptance,” and that a
pardon “may then be rejected by the person to whom it is
tendered,” has been the subject of considerable controversy.
The practical objections to such a rule are obvious. Can a
prisoner insist on being hanged? Can he insist on keeping
his cell in the prison even though the chief executive of the

tate has ordered him released?

78 U. S. V. Wilson, 7 Pet. (U. S.) 150 (1833).

79 In re De Puy, 3 Ben. 307, 7 Fed. Gas. No. 3,814 (1869) ; Eco part6 Hunt,
10 Ark. 284 (1850); Shields v. Snead, .114 Okla. 214, 245 Pac. 647 (1926);
Jones v. Sneed, 101 Okla. 295, 225 Pac. 700 (1924) ; Em parte Ray, 18 Okla.
Cr. 167, 193 Pac. 635 (1920).

80In re De Puy, supra; Ea: part6 Reno, 66 Mo. 266, 27 Am. R. 337 (1877) ;
Ea: parte Rice, 72 Tex. Cr. 587, 162 S. W. 891 (1914).

81131: parte Powell, 73 Ala. 517 (1883); Redd V. State, 65 Ark. 475, 47
S. W. 119 (1898); Ea; parte Reno, 66 Mo. 266, 27 Am. R. 337 (1877); Ea:
part6 Williams, 149 N. C. 436; Ex parte Ray, 18 Okla. Cr. 167, 193 Pac. 635
(1920). In Hunnicutt V. State, 18 Tex. App. 498, 51 Am. R. 330 (1885), a
pardon was granted, after sentence had been served, to qualify the convict
as a witness in a certain case. On request of the county attorney, the par-
don had been sent to him, and he used it to qualify the witness. Held, the
witness never having repudiated the pardon, but having instead exercised the
privilege of testifying, this was suflicient delivery and acceptance.

32147.2: parte Powell, 73 Ala. 517 (1883). But see 00mm. v. Halloway, 44
Pa. 210 (1863), where by a forged letter from the War Department,
asking that a prisoner be pardoned because he was wanted for secret public
service, a pardon was made out, given to the United States marshal, and by
him delivered to the warden. (It was held that under these circumstances
there was not suflicient delivery.”

178

Strangely enough, the rule that the convict’s accepta
of a pardon is necessary to its validity has been gener
repeated Without question ss—except, recently by the co
which enunciated the rule.“ Perhaps the reason for t
near- -unanimity is that none of the cases involved sucl
direct application of the rule as we have suggested: no 0
demned man apparently has ever insisted 011 bthe inflictim
the death penalty notwithstanding a pardon. Instead,
cases involved such situations as that of a personb Urante
pardon for the specific purpose of overcoming his object
to testifying as a witness in a criminal case 011 the {4101
of self-incrimination,85 or else they turned upon points
pleading,86 or statutes,“ or were cases where the enunciat
of the rule was mere dictum.88

In 1926, however, the United States Supreme Court
faced with a case 89 in which a Federal prisoner condem
to death had been given a commutation by the Presiden
life imprisonment. Sixteen years later he sued out. a
of habeas corpus alleging, first, that the President had
power to grant a commutation changing the nature .
character of the punishment, and second, that at all eve

88Bur-(lick. v. U. S., 236 U. S. 79 (1914); Curtin. v. U. S., 236 U. S
(1914) ; Grub?) v. Bullock, 44 Ga. 379 (1871); In re Prout, 12 Idaho 494
Pac. 275 (1906); Marlowe v. State, 153 Ind. 80, 53 N. E. 385 (1899);
pe‘nter v. Lord, 88 Ore. 127, 171 Pac. 577 (1918); State ea: rel. Bedfor
McCorkle, 163 Tenn. 101, 105, 40 S. W. (2d) 1015. 1016 (1931) ; Batlistcl
State, 141 Tenn. 565, 567, 213 S. W. 417 (1919); State em rel. Borne
Garnett, 135 Tenn. 617, 188 S. W. 58 (1916) ; Lee v. Murphy, 22 Grat. (
798. 12 Am. R. 563 (1872); and cases cited in 52 A. L. R. 835. And
Opinion Atty Gen. of Wisconsin (1918) p. 424.

8‘ Biddle v. Perom’ch, 274 U. S. 480 (1926).

85Burdick. v. U. S., 236 U. S. 79 (1914).

8“See Michael v. State, 40 Ala. 361 (1867), where defendant upon arr:
ment did not plead. A proclamation of amnesty which he could have ple
was repealed shortly thereafter. When, still later, the defendant did e
his plea of not guilty and also a plea of pardon, it was held that he
failed to accept the pardon before its repeal. See also State ex rel. Barn
Garnett, 135 Tenn. 617, 188 S. W. 58 (1916).

87 Carpenter v. Lord, 88 Ore. 127, 171 Pac. 577 (1918) (5—2 decision).
88 See Ea; partc Powell, 73 Ala. 517 (1883) (delivery and acceptance
suflicient; pardon valid) ; Grubb v. Bullock, 44 Ga. 379 (1871) (no dclive
Lee v. Murphy, 22 Grat. (Va.) 798, 12 Am. B. 563 (1872) (pardon had
tually been accepted). See also cases involving commutation, holding
While acceptance is required in pardon, this is not true of commutati
Chapman v. Scott, 10 F. (2d) 156 (1925); In re Charles, 115 Kan. 323,
Pac. 606; People v. Frost, 133 App. Div. 179, 117 N. Y. Supp. 524 (1909)

re Victor, 31 Ohio St. 206 (1877).
89Biddle v. Perovvich, 274 U. S. 480 (1926).

179

such a commutation was ineffective without his consent.
Mr. Justice Holmes, writing the opinion of the court, held:

“A pardon in our days is not a private act of grace from
an individual happening to possess power. It is a part
of the constitutional scheme. When granted it is the de-
termination of the ultimate authority that the public wel-
fare will be better served by inflicting less than what the
judgment fixed. See E :22 parte Grossman, 267 U. S. 87, 120,
121. Just as the original punishment would be imposed
without regard to the prisoner’s consent and in the teeth of
his will, whether he liked it or not, the public welfare, not
his consent, determines what shall be done. So far as a
pardon legitimately cuts down a penalty, it affects the judg-
ment imposing it. No one doubts that a reduction of the
term of an imprisonment or the amount of a fine would limit
the sentence effectively on the one side and on the othen
would leave the reduced term or fine valid and to be en-
forced, and that the convict’s consent is not required.

“When We come to the commutation of death to imprison-
ment for life it is hard to see how consent has any more to
do with it than it has in the cases first put. Supposing
that Perovich did not accept the change, he could not have
got himself hanged against the Executive order. Suppos-
ing that he did accept, he could not affect the judgment to
belcarried out. The considerations that led to the modifica-
tion had nothing to do with his will. * * * The op-
posite answer would permit the President to decide that
justice requires the diminution of a term or a fine without
consulting the convict, but would deprive him of the power
in the most important cases and require him to permit an
execution which he had decided ought not to take place un-
less the change is agreed to by one who on no sound prin-
ciple ought to have any voice in what the law should do
for the welfare of the whole.” 9° ' _

The court did not specifically overrule the previous cases
but held that “the reasoning of Burdz'ck v. United States
* * * is not to be extended to the present case.” It seems
correct to say, however, that the logic of the present case
is wholly inconsistent. with that of the Burdick case and

901d. at 486—487.

180

that if a case arises in which the rule of this case is directly
in point that it will be overruled.

This returns the Federal law to the sound English rule
from which Chief Justice Marshall departed. Marshall’s
decision rested on a misconception of early English de-
cisions which actually turned on points of pleading. The
king’s pardon being a private act of grace, was not the sub-
ject of judicial notice.91 Under old English rules of plead-
ing, a plea of not guilty waived the pardon, and it could not
thereafter be availed of.92 Marshall expanded this rule of
pleading into the substantive rule that acceptance was
necessary. No such rule is laid down by any of, the English
authorities.93 On the contrary, where a pardon was prop-
erly brought to the attention of the court, whether by plead-
ing or by judicial notice as in the case of a legislative par-
don, the convict was not permitted to waive it.“

This also seems to represent the prevailing view in all
continental countries except Norway.95 The Norwegian
Constitution contains a specific provision giving the convict
the choice whether or not he will accept the king’s pardon.96

REVO CATION

After a pardon has been delivered it cannot be revoked
by the pardoning authority for any cause.97 This is true
not only of absolute, but also of conditional pardons, except
as to revocation for violation of the conditions expressed

“1 4 Bl. 00mm. 402.

99 See post, p. 189.

1‘SSee 4 B1. 00mm. 395—402; 6 Bacon, Abridgcmc-nt (7th ed. 1832) tit.
Pardon; 4 Comyns, Digest (1785 ed.) 315-«3‘21.

942 Hawkins, 1 P. 0., ch. 37, § 58.

“Feuerbach cites a Prussian Rescript of June 22, 1813. denying the
condemned any right to refuse a pardon; and cases to the same (fleet in
Sweden and Holland. Feuerhach, Beinlichcn Rechts (1847 ed.) p, 123.
See also Unischan (1849) Benadigung und Amnestie, vol. III. p. 717.

In France, it has been said that although the contrary has been con-
tended, a pardon cannot be rejected because there is no right to be
punished. The defendant is subject to the penalty but he may not demand
it and force the State to carry out a measure which may be contrary to
justice or to social policy. Garraud, Traiié t-héOriq-ue ct pratiquc dc draft-
penal francais (1914) p. 643. I'IOWCVeI‘, a convicted person may refuse a
commutation which changes a sentence of imprisonment to a fine.

90Norwegian Constitution (1814) § 20. As to the necessity of accept-
ance in cases of amnesty, see past, ch. VIII.

”In re De Pm, 3 Ben. 307, 7 Fed. Gas. No. 3,814 (1869) ; Em part6 Reno,
66 Mo. 266, 27 Am. R. 337 (1877).

181

therein.98 A general legislative pardon is not “delivered,”
but the same principle applies; if once availed of by the
beneficiary, as by pleading it, such a pardon cannot be re-
voked by any subsequent act of legislation.99

Revocation for fraud.——It is commonly said that fraud
will vitiate a pardon, or that a pardon obtained by fraud
is void,1 or voidable; 2 and this whether the fraud was com-
mitted by the prisoner or by some third person in his behalf.
But do these statements mean (1) that the governor may
revoke on the ground of fraud or (2) that the courts may
nullify a pardon on this ground; and if the latter, may this
be done (a) in a collateral proceeding, such as habeas corpus
or (6) only by direct attack in equity or by writ of soire
facials?

It is unanimously agreed that the Governor may not re-
voke a pardon because of fraud in procurement 3 any more
than he may for any other reason. On the other hand, it
seems to be equally well agreed that the courts do have
power to nullify a pardon on this ground, although there is
a serious split of authority as to the proper procedure to be
followed.

The origin of the judicial power in this respect can be
said to be a series of ancient English statutes enacted for
the purpose of checking the grave abuses then prevailing
in the granting of pardons. The statute 27 Edw. III, Stat.
I, ch. 2, provided that in every pardon of felony granted
at any man’s suggestion, the suggestion and the name of
the one who made it should be compared, and if found untrue
the charter should be disallowed. The justices before whom

98 In re Williams, 149 N. C. 436, 63 S. E. 108 (1908); Ea; part6 Rice, 72
Tex. Cr. 587. 162 S. W. 891 (1914). Revocation for breach of conditions is
discussed in the chapter on conditional pardon. ,

99State V. Nichols, 26 Ark. 74, 7 Am. R. 600 (1870).

1See Dominic-k v. Bowdoin, 44 Ga. 357 (1871); State v. Leak, 5 Ind. 359
(1854) ; Rathbun V. Baumcl, 196 Iowa 1233, 191 N. W. 297 (1922); State V.
McIntire, 46 N. C. 1, 59 Am. Dec. 566 (1853); Comm. v. Hallou‘ay, 44 Pa.
210, 84 Am. Dec. 431 (1863) ; Rosson v. Stem, 23 Tex. App. 287, 4 S. W. 897
(1887).

2Knapp v. Thomas, 39 Ohio St. 377, 48 Am. R. 462 (1883).

31%: parte Powell, 73 Ala. 517, 49 Am. R. 71 (1883); En: parte Reno, 66
Mo. 266. 27 Am. B. 337 (1877) ; Ea: part6 Williams, 149 N. C. 436, 63 S. E.
108, 22 L. R. A. (n. s.) 238 (1908); Knapp v. Thomas, 39 Ohio St. 377, 48
Am. R. 462 (1883); Ex parte Cramp, 10 Okla. Cr. 133, 135 Pac. 428, 47
L. R. A. (N. S.) 1036 (1913); Stewart v. State, 11 Okla. Cr. 400, 146 Pac.
921 (1915) ; Ea: parte Bess, 152 S. C. 410, 150 S. E. 54 (1929).

182

such a pardon was alleged were to inquire into the “
gestion,” and if they found it untrue should disallow
charter.4 The later statutes of 13 Rich. II, Stat. II, 0
provided that no pardon of treason, murder, or rape sh
be allowed unless the offense were particularly spec
therein, and especially in murder it should be expre
whether it was by lying in wait, assault, or malice prep
and if the offense was not so expressed, it should be disallo
by the court.

In analogy to these statutes and to carry out the s
policy, the English courts held a pardon to be void w
ever it might reasonably be presumed that the king
deceived; and they considered the omission to recite the
that the person had been attainted or convicted or perl
even indicted, as evidence that an imposition had been p
ticed on the king.5 Also, a pardon might be impeached
fraud by 80576 facias.“

In this country, although the English statutes on
subject are not part of our common law,7 it has been
that the proper manner in which to attack a pardon
fraud is by the writ of seire facias, which lies to all ma
of record.8 It is agreed that it is proper to bring a d'
proceeding in equity to have the pardon declared null
void.9 “A. court of equity has the inherent and undou

‘A previous act had provided that charters of pardon “shall not be gr
but only in cases where the king may do it by his oath; that is to say, i
case where a man slayeth another in his own defense, or by misfort
2 Edw. III, ch. 2; reaffirmed in 10 Edw. III, Stat. I, ch. 2.

5 Stephen, Commentaries on the Laws of England (14th ed.) vol. 4. p.
3 Coke Inst. 238; 2 Hawkins P. C. ch. 37, § 8; 4 Bl. Comm. 398.

6 See T. Raym. 13 (1662).

'Knapp v. Thomas, 39 Ohio St. 377, 385 (1883); Comm. v. Hallowa
Pa. 210, 219, 84 Am. Dec. 431 (1863). Thus the fact that the defe
had already been convicted and sentenced at the time of the amnesty p
mation (during the Civil War) and that the proclamation did not speci
include such persons, was held immaterial. The court refused to [0110
old English rule that if a man attainted of felony is pardoned, and the p
fails to mention the attaint, or if a pardon of a person convicted of f
does not recite the indictment and verdict, the pardon is void. In re
house, 4 Sawy. 487, Fed. Gas. No. 5,741 (1864).

8 See Knapp v. Thomas, supra; Comm. v. Halloway, supra.

'Rathbun v. Baumel, 196 Iowa 1233, 191 N. W. 297, 30 A. L. R. 219 (19
Adkins v. Comm, 232 Ky. 312, 23 S. W. (2d) 277 (1929). See also Te-
Richardson, 9 Okla. 579, 60 Pac. 244, 49 L. R. A. 440 (1900) ; Ea; parte
152 S. C. 410. 150 S. E. 54, 61 (1929) ; Ea: parte Redw-ine, 91 Tex. Cr. 83
S. W. 96 (1922) ; Ear parte Rice, 722 Tex. Cr. 587, 162 S. W. 891 (1914) (“
a. pardon has been obtained by fraud, when this fact is proven, it ma
canceled and annulled by the proper tribunal”).

183

power by direct proceedings to inquire into the validity of
any written instrument under which rights are sought to be
enforced.” 1°

The question upon which the cases differ is whether such
a direct proceeding is the only means available or whether
the pardon may be attacked for fraud in a habcas corpus
proceeding. One group of decisions takes the view that on
such a proceeding the court cannot go behind a pardon
which is valid on its face even though obtained by fraud.11
Hobcas corpus proceedings, it is held, are summary in na-
ture, and the investigation had upon such proceedings is
necessarily limited and cannot, in pardon cases, go behind
the face of the pardon.12

Another and perhaps somewhat larger group of decisions
allows the fraud to be raised on habcas corpus,13 holding
that “the manner and nature of the proceeding in which it
is called to the attention of the court are immaterial.” 1“

Apparently the conflict in the cases turns upon the ex.-
tent to which the courts are willing to investigate the merits
of a case in habcas corpus proceedings. The argument that
the investigation upon habcas corpus is necessarily limited
does not seem very convincing when we consider the extent
to which the courts do investigate the facts in other habcas
corpus proceedings which are difficult to distinguish in
principle from those involved here. Thus the validity of a
pardon signed by one purporting to be a duly elected Gov-
ernor may be determined upon habcas corpus proceedings

 

1° Rathbun v. Baumel, 196 Iowa 1233, 191 N. W. 297 (1922).

11In re Edymoin, 8 How. Pr. (N. Y.) 478 (1853); Knapp v. Thomas, 39
Ohio St. 377, 392, 48 Am. R. 462 (1883); Ea: part6 Bess, supra. In the latter
case, the court said, quoting from 59 Am. Dec. 575: “But a court cannot go
behind a pardon on habeas corpus to determine into the regularity of the
proceeding; nor can the question be raised whether the pardon was obtained
by false and fraudulent pretenses; and where it appears on habeas corpus that
the pardon is fair on its face and unconditional, that puts an end to any
inquiry into the manner of obtaining it.”

12 “Habeas corpus is not an action; it is a prerogative writ, forced upon a
judicial ofl‘icer by the constitution of this State under a heavy penalty. It is
a legal statutory proceeding, in no sense within the jurisdiction of that equity
which may decree the cancellation of an instrument for fraud.” Cothran, J.,
in Ea: part6 Bess, supra.

18Dominick: v. Bowdoin, 44 Ga. 357 (1871); Jamison v. Flanner, 116 Kan.
624, 228 Pac. 82 (1924); 00mm. v. Halloway, 44 Pa. 210, 84 Am. Dec. 431
(1863) ; Rosson v. Stehr, 23 Tex. App. 287, 4 S. W. 897 (1887). And see Ea:
parts Cramp, 10 Okla. Cr. 133, 135 Pac. 428 (1913).

14 Jamison v. Flanner, 116 Kan. 624, 228 Pac. 82 (1924).

73115—39—VOL. III—13

184

even though this requires the court to embark upon the v
difficult task of deciding a contested election.15 Ag
where a conditional pardon is granted, the courts 11
habeas corpus proceedings have undertaken to investig
the question whether the condition has been violated as
leged by the pardoning authorities.16 If these are pro
matters to be determined upon habcas corpus proceedi
there seems no logical reason why the question of fraud
the procurement of a pardon might not be determined
the same way.

Pardon granted under ignorance or mistake of facts
Some courts have gone even further and have applied
English rule that whenever it reasonably appears that
king was deceived, or not fully informed of the relev
facts, the pardon is void. Thus in an early Indiana 0
the Governor remitted to sureties the amount of adju
ment on a recognizance bond; it was admitted by demur
that the recognizance was for the appearance of a defend
arrested for murder who had indemnified the sureties
the whole sum of the bond with the understanding betw
them that he was to flee the country; and that these fa
were concealed from the Governor. The court held t
since the remission did not state the nature of the cri
involved, or the amount of the recognizance, it must
presumed that the Governor was ignorant of these facts a
that the remission was consequently void.17 In a No
Carolina case decided about the same time, it was held tl
where a pardon remitting imprisonment, granted while
appeal was pending from a conviction, was interposed
stay further proceedings, the fact that it showed on its f'
that the Governor was misinformed as to the true facts
the case, in that he did not know of the appeal and s1
posed that there had been both a fine and sentence of i

15 See also People can rel. Pickard v. Sheriff, 11 N. Y. Civ. Proc. R.
(1886). where the court, holding that in a hvabca-s corpus proceeding it wo
inquire whether the indictment under which defendant was held was v
said (p. 180): “The case of Edymoin (8 How. Pr. 483) is a county co
.decision way back in 1852, and follows no authority when it attempts to
.down the rule that records, deeds, and papers fair on their face cannot
impeached.”

”Ea! part6 Marks, 64 Cal. 29, 28 Pac. 109, 49 Am. B. 684 (1883); Peo
v. Potter, 1 Edm. Sel. Cas. 235, 1 Parker Cr. (N. Y.) 47 (1846).

1" State v. Leak, 5 Ind. 359 (1854).

185

' prisonment, whereas there had been no fine imposed, ren-
} dered the pardon void.18

It is doubtful whether any American courts would fol-
low these cases today. No court should feel free to reject a
pardon merely because in the court’s opinion the Governor
acted ignorantly or mistakenly, where there is no evidence
that Governor’s ignorance or mistake was induced by fraud.
Nor will it do for the court to presume, without actual
proof, that the ignorance or mistake was induced by fraud.

Even the most restricted judicial method of nullifying a
pardon, that of a direct proceeding in equity, has been criti-
cised as an undue extension of equity jurisdiction, invading
the executive pardoning power.19 It would seem that the
courts should therefore exercise considerable caution in de-
claring pardons void, .to avert undesirable friction between

the executive and judicial branches of the government.

13State v. McIntire, 46 N. C. 1 (1853). See also Redd v. State, 65 Ark.
475, 47 S. W. 119 (1898), which contains a dictum that a pardon of certain
crimes “and of all felonies of which he may have been heretofore convicted,”
may be too indefinite to cover any but the enumerated crimes, for it would be
assumed in such case that the governor was not acquainted with the heinous-
ness of the crime but was deceived in his grant (citing Hawkins).

1’ 36 Harv. Law Rev. 683; 7 Minn. Law Rev. 424; 8 Iowa Law Bull. 177.

CHAPTER VI

PLEADING AND PROOF OF PARDON
PLEADING A PARDON

Questions regarding the proper method of pleading a
pardon can hardly arise except in two cases: (1) where the
pardon is granted before the criminal proceedings are com-
‘,";71 pleted; (2) where conviction of crime renders a person in-
eligible as a witness or affects his credibility, and it is
desired to prove that he has been pardoned of such crime

 

  

and then restored to full competency as a witness.

_ It has never been very common in this country to grant
pardons to persons whose guilt has not yet been judicially
i" determined. Most of our State constitutions permit par-
don only “after conviction.” As we have seen,1 “convic-
tion” is usually construed to mean the verdict of the jury
only; pardons may be granted after such verdict even
though sentence has not yet been passed. So there may
still be cases even in these States, of pardon granted while
the defendant is awaiting sentence or while the case is pend-
ing on appeal, and the question may arise as to the proper
mode of pleading the pardon.

There is no hard and fast rule as to how a pardon must be
pleaded. All that is necessary is that it be called to the at-
tention of the court by plea, motion, or otherwise.2 How-
ever, it is necessary that it be in some way brought before
the court; the courts do not take judicial notice of pardons 3

 

1 See ante, p. 144.

’U. S. v. Wilson, 7 Pet. 150, 8 L. ed. 640 (1833); Jackson v. Rose, 223
Ky. 285, 3 S. W. (2d) 641 (1928) (formal plea not necessary); Powers v.
Comm., 110 Ky. 386, 61 S. W. 735, 23 Ky. L. 146, 53 L. R. A. 245 (1901):
Spafl'ord v. Benzz‘e Circuit Judge, 136 Mich. 25, 98 N. W. 741 (1904) (formal
motion to court having custody of prisoner to discharge him on ground of
pardon, held prOper); Terr. v. Richardson, 9 Okla. 579, 60 Pac. 244, 49
L. R. A. 440 (1900) ; Terr. v. Richardson, 10 Okla. 217, 61 Pac. 1135 (1900).
It has even been said that the legislature has no power to impose limitations
upon the way in which a pardon shall be set up, alleged, or called to the
attention of the court. Terr. v. Richardson, supra.

3M£chael v. State, 40 Ala. 361 (1867) ; U. S. v. Wilson, 7 Pet. 150, 8 L. ed.
640 (1833) ; Merritt’s Case, 4 City Hall Rec. 58 (1819) ; State ea: rel‘. Barnes
v. Garnett, 135 Tenn. 617, 188 S. W. 58, L. R. A. 1917B, 567 (1916); see
also Ea- parte Lockhart, 1 Disn. 105, 12 Ohio Dec. 515 (1855).

(187)

188

(except general acts of pardon and amnesty, which will
considered later).4 Where a case is still pending before t
court it is improper for a jailor or warden to undertake
release the defendant on a pardon. The matter must
submitted to the court.“ After the case is finally dete
mined, and the defendant has begun service of sentence,
pardon should be presented to the warden, who is ther
upon required without more to release him.

Histom.-—Pleas of defendants in criminal cases we
always oral and simple, and remained so even when t
forms of pleading in civil cases were much elaborated. Tl
reason for this was that the defendant in treason and felon
cases was not allowed counsel, and so there was no oppo
tunity for the development of the technicality of pleadin
along the lines developed in civil cases. Also, strict rul
of pleading could not fairly be enforced against a prison
ignorant of law and fighting for his life. Therefore, t
courts allowed him to urge anything he could in his defens
Even if his special defenses failed, he was allowed to plea
over not guilty; and, even after conviction, he was allowe
to urge anything he could as a reason why sentence shoul
not be passed.6

In the old Anglo-Saxon law, when a plaintiff properl
made his accusation, the defendant was required to meet '
by an oath denying its truth. This flat denial (thwartu
my) Was the only mode of defense open to him. In th
time of Bracton (thirteenth century) the older, rigid rul
of pleading were being extensively modified by the intr
duction under the influence of the Roman law of variou
defenses (emceptiones) which were allowed to be pleade
Among these were the pleas of benefit of clergy, autrefoi
convict or autrefois acquit, and pardon. Only in the fou
teenth and fifteenth centuries were these many new plea
classified and precise rules formulated governing their use.
Some of these rules regarding the plea of pardon becam
rather unnecessarily strict, as we shall see in our nex
paragraph.

‘ See ch. VIII.

“Merritt’s Case, 4 City Hall Rec. 58 (1819).

°Holdsworth, History of English Law, vol. 3, p. 616.

71d. vol. 2, pp. 106, 251; vol. 3, pp. 614, 630; Staunford, P. 0., 99a—104b

189

Waiver.——It is generally said that one may waive a par-
don, and that failure on the part of one who has received
a pardon to plead it on his trial will be considered a
waiver. 3 Under this rule it was formerly necessary that
the pardon be specially pleaded. A plea of the general
issue was not sufficient; 011 the contraiy, entering such a
plea constituted a waiver of the special defense of pardon.
Indeed, it was even said that a pardon was waived by the
entering of the general plea of not guilty, even when the
defendant attempted also to enter his special plea of pardon
at the same time.9

A case much relied upon to sustain this proposition is
Rea: v. Ratelifle,” where the defendant, on being brought in
to say why execution should not be awarded, pleaded that
he was not the person who had been convicted (30 years
had elapsed since the conviction). This issue was found
against him by a jury, whereupon the defendant then moved
for leave to plead an act of oblivion. This was refused on
the ground that he had chosen to rely on his first plea, and
could not twice be asked why execution should not be had.
But as the case is reported in Foster, it appears that the
defendant was not actually included in the act of oblivion,
and so his counsel did not p1 ess the point.

Only one Ameiican case seems even paitially to support
this unr‘ae sonably st1ict rule of pleading. This IS an Ala-
bama case decided in 1867, where a defendant pleaded both
not guilty and a pardon. He was found guilty by the jury
on the former plea. The court held that because he had
pleaded not guilty, even though also pleading the pardon, it
was no error to give judgment against him for costs, al-
though the court did admit the effectiveness of the pardon
to absolve him for punishment.11 .

Today, however, it is probably safe to say that no court
would refuse to accept a special plea or suggestion that a

'Michael v. State, 40 Ala. 361 (1867); Terr. v. Richardson, 9 Okla. 579,
60 Pac. 244, 49 L. R. A. 440 (1900); Terr. V. Richardson, 10 Okla. 217, 61
Pac. 1135 (1900); State ea: rel. Barnes 17. Garnett, 135 Tenn. 617, 188 S. W.
58, L. R. A. 19173 567 (1916).

92 Hawkins, P. 0., c. 37, § 67; Bishop, Grim. Free. (3d «36.), vol. 1, § 847.
See also Bacon’s Abridgement, vol. 6, p. 142.

101 Wils. 150, Foster C. L. 40 (1746).

11Michael 17. State, 40 Ala. 361 (1867).

190

pardon had been granted along with or after a plea of not.
guilty. In at least one State it is specially provided by
statute that under an oral plea of the general issue the de-
fendant may show and prove a pardon.12 In a number of
other States statutes enumerate the various pleas open to a
defendant in a criminal case and provide that all defenses
not required to be pleaded specially may be shown under a
plea of not guilty.13 Probably no delay in presenting a
pardon would today be held to constitute a waiver short of
such conduct as indicates an actual intent not to take ad-
vantage of the pardon or constitutes a trifling with the
court.“

Time of pleading pardon—So long as a man uses reason-
able diligence to produce a pardon without delay, he may
do so at any stage of the criminal proceedings—indeed, as
already indicated, it is his duty to produce the pardon and
not allow the court to continue the criminal proceedings in
ignorance that a pardon has been granted. Thus, a pardon
may not only be pleaded on arraignment or produced in
evidence under a plea of not guilty, but also if granted after
verdict, may be alleged upon being asked why sentence
should not be passed,15 or if the case is pending on appeal,
he may present it to the appellate court.18

1’ Ind. Stat. Ann. (Burns, 1933) § 9—1132.

‘3 See, e. g., Cal. Penal Code (Deering, 1933) §§ 1016. 1020.

14 See statement by Chief Justice Marshall in Wilson v. U. 8., 7 Pet. 150,
162, 8 L. ed. 640 (1833): “a court would undoubtedly at this day permit
a pardon to be used after the general issue.” A defendant pleaded not
guilty, obtained change of venue, and only later, when case was called for
trial, moved to dismiss on ground of pardon, without with drawing plea of not
guilty. The pardon had in fact been granted before indictment. Held, no
waiver. Terr. v. Richardson. 9 Okla. 579, 10 Okla. 217, 60 Pac. 244, 61 Pac.
1135, 49 L. R. A. 440 (1900). In another case a pardon was granted while
the case was pending on appeal The defendant did not call the appellate
court’s attention to the pardon, but moved to dismiss the appeal. The case
being remanded to the trial court, the defendant then produced his pardon.
Held, no waiver. State ca: rel. Barnes v. Garnctt, 135 Tenn. 617, 188 S. W.
58, L. R. A. 1917B 567 (1916).

1“ Rea: v. Haines, 1 Wils. 214 (1748); Rea: v. Hales, 2 Stl‘a. 816 (1728);
Big? v. 00mm, 25 Grat. (66 Va.) 850 (1874) ; Rea: v. Garside, 2 A. & E. 266
( :4).

1° Comm. v. Lockwood, 109 Mass. 323, 12 Am. Rep. 699 (1872); State v.
Alexander, 76 N. C. 231, 22 Am. Rep. 675 (1877); State v. White, 26 Ore.
605, 40 Pac. 229 (1895); Bishop, Grim. Proo. (3d ed.) § 847; Stephen,
Commentaries on the Laws of England (14th ed.) vol. 4, p. 422. '

191

Mandamus—Where a court refuses to recognize the
validity of a pardon, mandamus is an appropriate remedy.17
The writ of habeas corpus is also always available to one
who alleges that inasmuch as he has been pardoned, he
is being illegally restrained of his liberty.18

General pardon or amnesty by act of legislature or execu-
tive proclamation—While, as said above, the courts do not
take judicial notice of individual pardons, they do take
judicial notice of general legislative pardons or acts of
amnesty, since these are public acts.19 And it is said that a
legislative act of pardon cannot be waived, because no one by
his admission can give a court power to proceed against
him when there is no law to punish him.20 However,
where there are exceptions or conditions contained in the
body of the act, the accused must bring himself within its
terms.21 In England a general pardon granted by the King

 

1" Jackson v. Rose, 223 Ky. 285, 3 S. W. (2d) 641 (1928); Spafl‘ord Y.
Bennie Circuit Judge, 136 Mich. 25, 98 N. W. 741 (1904).

13 In re De Pay, 7 Fed. Gas. No. 3,814, 3 Ben. 307 (1869); In re Great-
house, 10 Fed. Cas. No. 5,741, 2 Abb. 382, 4 Sawy. 487 (1864) ; Domimick v.
Bowdoin, 44 Ga. 357 (1871); State ea rel. Van Orden v. Sauvinet, 24 La.
Ann. 119, 13 Am. Rep. 115 (1872) ; Ea: parte Reno, 66 M0. 266, 27 Am. Rep.
337 (1877) ; In re Edymoin, 8 How. Pr. (N. Y.) 478 (1853) ; Ea: parte Lock-
hart, 1 Disn. 105, 12 Ohio Dec. 515 (1855) ; In re Moore, 4 Wyo. 98, 31 Pac.
980 (1893). But a plea that a petition for pardon has been filed is not
suflicient. State ea: rel. Pringle V. Lake, 34 La. Ann. 1069 (1882).

19 Michael v. State, 40 Ala. 361 (1867); State ea: rel. Anheuser-Busch
Brewing Assn. v. Eby, 170 M0. 497, 71 S. W. 52 (1902); State v. Keith, 63
N. C. 140 (1869); State v. Blalock, 61 N. C. 242 (1867); see also Em parts
Lockhart, 1 Disn. 105, 12 Ohio Dec. 515 (1855). Contra: see statement of
Holt, C. J., in Ingram v. Foot, 1 Ld. Raym. 708, 709 (1701), that the court
is not obliged to take notice of an act of pardon unless compels, for
an act of pardon is not a general act.

202 Hawkins P. 0., c. 37, § 58.

21Id. § 60; St. Louis Street Foundry v. U. S., 6 Wall. 770 n., 18 L. ed.
884 (1867); State v. Cook, 61 N. C. 535 (1868) ; Patridge’s Case, Cro. Eliz.
125 (1592) ; Harris v. , T. Raym. 23 (1672). But see State v. Blalock,
61 N. C. 242 (1867), where the court gave defendants benefit of doubt as
to whether they were regularly enlisted soldiers, and so within the act of
amnesty.

Hawkins adds that if the body of the statute is general, but there are
provisos attached excepting some persons, it may be sufiicient to plead such
a pardon without averring that the pleader is not one of those excepted;
it being a general rule that when a man is within the general words of the
body of a record or deed which is Qualified by subsequent provisos, it is
sufficient for him to bring himself within the general words, and the ex-
ceptions ought to be shown by the other side. 2 Hawkins P. 0., ch. 37, § 60,
quoted by Bishop, Grim. P-roc. (3d ed.) vol. 1, § 835. See also Ingram v.
Foot, 1 Ld. Raym. 708 (1701) where Holt, C. J., said he was not satisfied
with the cases, holding that a man pleading a pardon must aver that he
is not within the exceptions; but that that should be proved by the plaintiff

 

192

under the great seal was treated as any other executive
pardon which had to be proved, and was not taken judicial
notice of as was a general pardon by act of Parliament. In
this country, however, the President’s proclamation of
amnesty following the Civil War was held to be a public
proclamation, having the force of public law and of which
the courts and officers were required to take notice whether
especially called to their attention or not.22

PROOF OF PARDON

, The proper method of proving a pardon is the production
of the pardon itself under the great seal of the State.23 A
purported pardon which is unsealed is a nullity, and will
not be. given effect by the courts.24 The courts take judicial
notice of the official signature of any State officer and are
presumed to know who is the executive at any time the fact
is called in question?5 In some States it has been said that

or the attorney general, as the case may be. And it seems most of the
cases saying that he who pleads a pardon must also allege he is not within
the exception are civil cases, where plaintiff was pleading the pardon.
St. Louis Steel Foundry v. U. 8., supra. (plaintiff, claimant of property, alleged
amnesty); Harris v. , supra (plaintifl sued for being called a traitor
and proved pardon).

23 Jenkins v. Collard. .145 U. S. 516. 12 S. Ct. 868. 36 L. ed. 812 (1891);
Armstrong V. U. 8., 13 Wall. 154 (1871). A proclamation takes effect when
signed and sealed, and not when actually published. Lopez/re v. U. 8., 17
Wall. 191 (1872) (persons committing illegal acts after restriction had been
removed by proclamation but before such proclamation had been published or
otherwise made known, held relieved by it).

25 U. S. v. WilsOn, 28 Fed. Cas. No. 16.730 (1830); Rodd v. State. 65 Ark.
475, 47 S. W. 119 (1898) ; Dominick v. Boredom, 44 Ga. 357 (1871) : State v.
Bleisdell. 33 N. H. 388 (1856); Sipanrk v. State, 100 Tex. Cr. 489. 272 S. W.
141 (1925). Where a pardon can be granted only by the Governor with the
approval of the senate, it may be proved by showing the pardon and a com-
munication from the secretary of the senate to the Governor stating that the
recommendation for pardon had been acted upon. State V. Baptiste and
Martini, 26 La. Ann. 134 (1874).

“4 Ea) part6 Jones, 25 Okla. Cr. 34?. 220 Pac. 978 (1923.). However. where
a prisoner is released on such a defective pardon, the same court has held
that the State is eStepped from asserting its invalidity and attempting to
roincarcerate the person after a period of almost 2 years. Ea- parte Rasmussen,
31 Okla. Cr. 266, 238 Pac. 231 (1925).

25Jackson v. Rose, 223 Ky. 285, 3 S. W. (2d) 641 (1928); Powers v.
Comm” 110 Ky. 386, 61 S. W. 735, 23 Ky. L. 146, 53 L. R. A. 245 (1901);
In. re Moo-re, 4 Wyo. 98, 31 Pac. 980 (1893). And where the right of the
official signing the pardon to the office of Governor is contested, or where
there are two claimants to the office, the court will determine whether the
person signing the pardon is the rightful governor. Jackson V. Rose, supra;
Powers v. 00mm. supra; Ea; parte Norris, 8 S. C. 408 (1876); En; part6
Smith, 8 S. C. 495 (1876) ; In re Meow, supra.

 

193

proof may be by a certified copy; 26 but probably this is true
only where the original cannot be produced. 27 A pardon
cannot be proved by oral testimony Where it is not shown
that the original has been lost, or even if lost, that a certi-
fied copy cannot be produced.28 Executive minutes showing
that a pardon was granted are not sufficient; 2" nor is
evidence of a mere promise to grant a pardon.80

These rules apply not only where the pardon is the direct
question in issue but also Where such question arises col-
laterally, as where a witness is objected to 011 the ground
of conviction of crime and it is desired to answer the
objection by showing that he has been pardoned.31

Variance in pleading and proof—If there is a formal
variance between the record of conviction and the pardon,
yet the same person or offense is meant, it should be ex-
plained in the plea. And if such a variant pardon is
pleaded without such averment, the court in its discretion
may allow the defendant to perfect his plea or to obtain
a better pardon.32

In early England names were very loosely used, and a
pardon given to one person might sometimes be used by
another using the same name.33 The judges, therefore, came
to scrutinize pardons rather strictly for discrepancies. Fur-
thermore, in order to remedy the all too common evil of
royal pardons granted to undeserving and dangerous crimi-
nals, it was held that if a person attainted of felony were
pardoned and the pardon did not mention the attaint, it

 

2°Redd v. State, 65 Ark. 475, 47 S. W. 119 (1898); Goa: v. 009:, 26 Pa.
375, 67 Am. Dec. 432 (1856) ; Spalding v. Samton, 6 Watts (Pa.) 338 (1837).

2" Sipanek v. State, 100 Tex. Cr. 489, 272 S. W. 141 (1925).

mRedd v. State, 65 Ark. 475, 47 S. W. 119 (1898) ; Sipanek v. State, swpra;
Mass v. Bromberg, 28 Tex. Civ. App. 145, 66 S. W. 468 (1902); Brown v.
State (Tex. Cr.) 28 S. W. 536 (1894) ; H-unnic‘utt v. State, 18 Tex. App. 498,
51 Am. Rep. 330 (1885). But in Yzaguirre v. State, 48 Tex. Cr. 514, 85 S. W.
14 (1904), the court held it was no error to accept oral evidence of a
pardon, Where the witness testified the original was lost. The possibility of
obtaining a certified copy was not mentioned.

29Goa: v. 003;, 26 Pa. 375, 67 Am. Dec. 432 (1856); Spalding v. Sac-ton,
6 Watts (Pa) 338 (1837).

3° Rea; v. Garside, 2 A. & E. 266 (1834).

31 U. S. v. Wilson, 28 Fed. Gas. No. 16,730 (1830) ; Redd v. State, 65 Ark. 475,
47 S. W. 119 (1898); Mass v. Bromberg, 28 Tex. Civ. App. 145, 66 S. W.
468 (1902); Hunnicutt v. State, 18 Tex. App. 498, 51 Am. Rep. 330 (1885).

322 Hawkins P. 0., ch. 37, § 66; Bishop, Grim. Proo. (3d ed.) vol. 2,
§ 846; Bellengeham’s Case, 1 Dyer 34a (1536).

”Pike, History of Crime, v01. 1, p. 293.

194

would be ineffectual; also, that if one had been convicte
of felony by verdict, the pardon would be void unless i
recited the indictment and verdict. It was even doubte
whether if the person were merely indicted, the pardo
would be good without mentioning the indictment. Indeed
the courts adopted the general principle that whenever i
appeared that the King was misinformed or not rightl
apprised, both of the heinousness of the offense and how fa
the party stood convicted, the pardon was void.“ Thi
principle has also been applied in American cases,85 althoug
it would probably today not be applied with such strict
ness, either in this country or in England.36 In one State
in a case where the pardon lacked an address, failed to stat
the date of conviction and erroneously recited that the de
fendant had been convicted and sentenced, whereas he ha
not been sentenced, and the pardon was delivered directl
to the judge instead of the defendant, it was held that non.
of these things rendered the pardon invalid; its substanc
left no doubt of the intent of the Governor to extend
clemency.87

In general, it may be said that unless there is reason to
believe that the executive was deceived as to the heinousness
of the crime or the state of the record, defects in stating the
name of the person or the offense should not be allowed to
affect the validity of the pardon.

3* BacOn’s Abrtidgcment, vol. 6, “Pardon,” D.

a":S'tate v. Leak, 5 Ind. 359 (1854); State v. Foley, 15 Nev. 64 (1880);
State v. McIntire, 46 N. C. 1 (1853).

3° In re Greathouse, 10 Fed. Gas. No. 5,741 (1864).

"Spafl‘ord v. Benzie Circuit Judge, 136 Mich. 25, 98 N. W. 741 (1904). Of.
Stetler’s Case, 22 Fed. Gas. No. 13,380 (1852), holding that where a pardon
was proved which recited a conviction “at the June term,” of counterfeiting,
and a sentence of imprisonment, whereas the record showed a conviction at
the “May sessions” of two felonies, counterfeiting and uttering, with a sen-
tence of fine as well as imprisonment, the pardon did not apply to the
conviction for uttering.

CHAPTER VII

CONDITIONAL PARDON, COMMUTATION,
REPRIEVE, REMISSION

Throughout most of this volume we have been speaking
of pardon in the full and absolute sense, although most of
what has been said is equally applicable to other forms of
clemency. In every State, the executive clemency power
includes either expressly or impliedly in the power to par-
don, power to grant conditional pardons, commutations, re-
prieves, and remissions of fines and forfeitures. In some
States we also find a practice of granting temporary re-
leases, usually called furloughs.

As a matter of fact, full and unconditional pardons are
rare today. Acts of executive clemency usually take one
of these lesser forms.

CONDITIONAL PARDON

“A conditional pardon is one to which a condition is
annexed, performance of which is necessary to the validity
of the pardon.” 1

Conditional pardons represent the point at which the
institution of pardon has been expanded to apply to new
needs and purposes. The simple older concept of a full par-
don, granted on a purely personal basis, as a matter of
grace, mercy, or favor, here becomes a penological device
for the gradual reestablishment of convicts. It is the fore-
runner of the parole system.

Distinguished from parole—Indeed, it is difficult to dis‘
tinguish conditional pardon from parole. Often courts
speak of parole as being essentially a conditional pardon.
Of the cases attempting to distinguish between the two, most
merely point out that a full pardon is a form of grace,
relieving the defendant of all further liability, while a

 

1Fehl v. Martin, 155 Ore. 455, 64 P. (2d) 631 (1937).
(195)

196

parole does not have such effect. This ignores the fact that
a conditional pardon does not have such effect either.

Certain differences, which are usually' true, may be
pointed out, but it should be said that they are not always
true. Thus, conditional pardons are usually granted by
the Governor, with or without the advice or consent of a
board, while parole is administered by a board, of which the
Governor is not usually a member. But in some States (as
in Idaho) pardon and parole are administered by the same
board.

Again, parole contemplates supervision by parole officers
during the parole period, while the Governor, who has
power to grant pardons, does not usually have any such
supervisory officers at his command. But in some States
there are no parole officers either (as in Colorado), while
in others (New Hampshire, Ohio, Oregon, and Washington)
the parole or probation officers are also given the duty to
supervise conditional pardonees.

As one court has said, “the distinction between a condi‘
tional pardon and a parole is not wide * * *. Both are
acts of clemency. Both may be revoked. In the case 'of a
conditional pardon, the convict is at liberty upon a condition
and in a case where the pardon does not become operative
until the recipient has performed the condition, when the
condition has been performed it becomes absolute or where
it is conditioned that upon the transpiring of some event it
becomes void, the convict is at liberty until the event trans-
pires. In the case of a parole, the convict has a mere sus-
pension of sentence, and is still under constructive custody
and supervision by the public authority.” 2

In a number of States there is no parole law, and condi-
tional pardon is used as a substitute. If supervisory ofiicers
are provided there is no practical difference between the two.

Early use—The advantages of this form of release were
early recognized. In 1336 a statute was enacted in Eng—
land providing that no pardon of felony would be allowed
unless the party found sureties for his good behavior be-
fore the sheriff and coroners of the county.3 This was

’Em part0 Collins, 32 Okla. Cr. 6, 18, 239 Pac. 693, 697 (1925).
810 Edw. III, ch. 2. See Rem v. Parsons, 1 Show. 283 (1691).

 

 

 

.<....;m',:~;.)kr-»<;;.,

197

repealed in 1694 by a statute which provided that the judges
before whom any pardon of felony was pleaded might at
their discretion require that the person enter into a recogni-
zance with two sureties for good behavior for a period of
time not to exceed 7 years. 4

Transportation to the colonies was originally established
in English legal practice by the device of granting a pardon
conditional upon the convict’s remaining in a colony fo'1 7
years, 5 of them to be spent in service. bAt the end of that
service he was given a grant of land.5

Purposea—As already said, conditional pardons are used
as a substitute for parole in a number of States having no
parole law. And even in one or two States where there is
a parole law, conditional pardon is more common, because
more flexible. This is true, for example, in Idaho.

The Florida pardon board has recently adopted the prac—
tice of releasing a number of prisoners on conditional par-
don shortly before they would be entitled to absolute
discharge. This conditional pardon may be revoked at any
time, even after the time of sentence has expired. The pur-
pose of this device, of course, is to induce the ex—convict to
“go straight” by holding this power to revoke and recommit
over his head. Inasmuch as, however, ”Florida has no super-
visory officers of any kind, it seems doubtful whether there
will be any revocations so long as the person is not arrested
for some other crime.

In Nevada, conditional pardons are used to release Con-
victs who have not served the 10 months in prison required
for eligibility for parole, or who are ineligible for parole
because three times convicted. Because there is no 811811911-
sion of sentence or adult probation in Nevada, defendants
are sometimes found guilty whom ev en the courts do not
wish to send to prison. In such cases, judges a1e quite wi ”.-
ing to recommend 1elease on conditional pardon a short time
after commitment. This is not the most desirable procedure,
but until the State enacts a probation law, it will remain
necessary.

‘5 & 6 W. & M.. ch. 13.
5 Kenny. Outlines of Criminal Law (14th ed.), p. 502.

198

In Washington, conditional pardons are granted in prac-
tice mainly for five reasons: (1) To rectify excessive sen-
tences; (2) to permit release before expiration of the mini-
mum sentence; (3) to permit release of convicts serving life
sentences; (4) to permit deportation by the Federal Gov-
ermnent; (5) to permit extradition of convicts wanted for
crime in another State.

Conditional pardons may be granted not only to permit,
but also to prevent, deportation. In Minnesota, occasionally
an alien who is serving time for the commission of a felony,
and who faces deportation upon his release from prison, will
be favored by a conditional pardon, the conditions framed
to permit him to remain in the United States. Generally,
such alien ofienders are deported, but sometimes the offender
may have an established home of many years’ standing in
this country, and a wife and several children who are Amer-
ican citizens. If this alien’s previous character has been
good, the board may grant him a conditional pardon.

Power to grant.—In at least 11 States, the constitutional
power of the Governor to grant pardons includes power to
do so “upon such conditions and with such restrictions and
limitations as he may think proper.” 6 Statutes sometimes
undertake to clarify such power where the constitution
does not.7 But even without express authorization, the
courts have held that power to grant “pardons” is sufficient
to include power to grant pardons on condition.8

Conditions which may be imposed—It is usually said
that the pardoning authorities may attach any conditions,

“Cal. Const., art. VII, § 1. Similar language is found in Ariz. Const., art. V,
5 5; Me. Const., art. V, part 1, § 11; Mich. Const., art. VI, § 9; Mo. Const.,
art. V, § 8; N. Y. Const., art. IV, § 5; N. C. Const., art. III, § 6; Ohio
Const., art. III, § 11; S. C. Const., art. 4, § 11; Vt. Const., ch. 11, § 20;
Wis. Const., art. V, § 6. See cases cited in 60 A. L. R. 1412.

r-’Kan. Gen. Stat. Ann. (1935), § 62—2215; Mass. Laws Ann. (Michie, 1933),
ch. 127, § 152; Minn. Stat. (Mason, 1927), § 10780; N. H. Laws, 1931, ch.
117; N. D. Comp. Laws Ann. (1913), § 11100, as amended, N. D. Laws, 1935,
ch. 248; Tenn. Code Ann. (Williams, 1934), § 11842; Wash. Rev. Stat. Ann.
(Remington, 1932), § 2223; W. Va. Code Ann. (Michie, 1932), § 250.

81% parte Wells, 18 How. 307 (1855) ; Fuller v. State, 122 Ala. 32, 37, 26
So. 146, 147 (1898) ; Ea; parte Hunt, 10 Ark. 284 (1850) ; Arthur v. Craig, 48
Iowa 264, 267 (1878) ; In re Kennedy. 135 Mass. 48 (1883); In re Court of
Pardons, 97 N. J. Eq. 555, 129 At]. 624 (1925) ; People v. Potter, 1 Edm. Sel.
Gas. 235, 1 Parker Cr. R. 47 (N. Y. 1846) ; Flavell’s Case, 8 Watts & S. 197
((Pa. 1844); Comm. v. Haggerti, 4 Brewst. 326 (Pa. 1869); State em rel.
.Bedford v. McCorkle, 163 Tenn. 101, 40 S. W. (2d) 1015 (1931) ; State ea: rel.
lRowe v. Connors, 166 Tenn. 393, 61 S. W. (2d) 471 (1933); Leo v. Murphy,
:22 Grat. 789 (Va. 1872) ; and cases cited in 60 A. L. R. 1411.

199

precedent or subsequent, which are not illegal, immoral, or
impossible of performance.9 Conditions usually imposed
in States Where conditional pardons are common are similar
to those imposed on parolees—that the person commit no
crime, that he conduct himself as a law-abiding citizen, that
he support his family, abstain from alcoholics,1L0 keep away
from poolhalls, etc. In the State of Washington, condi‘
tional pardons regularly contain six rules as to conduct upon
release: The prisoner must (a) proceed at once to destina~
tion and report at earliest possible date to the chief parole
oflicer; (b) not leave the State Without permission; (c) re-
main under legal custody and supervision of chief parole
officer; (d) abstain from use of liquor and narcotics, avoid
evil associates and improper places of amusement; (e) make
monthly reports to the chief parole officer; (f) not corre-
spond or associate With former convicts from any penal
institution. The executive secretary and the chief parole
officer state that in addition to these six general conditions
above enumerated, the prisoner must also comply with the
conditions imposed by the board of prison terms and pa-
roles on all parolees. Furthermore, the Governor or the
parole board may impose any additional conditions adapted
to assist the prisoner after release.

A condition commonly encountered is that the person
should leave the State. Such a conditon is held valid,11 and

 

“Fuller 1?. State, 122 Ala. 32, 37, 26 So. 146, 147 (1898); Ea; parte Haw-
kins, 61 Ark. 321, 324, 33 S. W. 106 (1895); In re McKinney, 33 Del. 434,
138 At]. 649 (1927); State v. Horne, 52 Fla. 125, 137, 42 So. 388, 392
(1906); In re Front, 12 Idaho 494, 86 Pac. 275 (1906); Arthur v. Craig,
48 Iowa 264, 267 (1878); People v. Marsh, 125 Mich. 410, 84 N. W. 472
(1900) ; In re Sutton, 50 Mont. 88, 93, 145 Pac. 6, 8 (1914); In re Williams,
149 N. C. 436, 438, 63 S. E. 108 (1908); Ea: parte Collins, 32 Okla. Cr. 6,
17, 239 Pac. 693, 696 (1925); Ea: parte Horinc, 11 Okla. Cr. 517, 148 Pac.
825 (1915); In re Ho-ughton, 49 Ore. 232, 89 Pac. 801 (1907); State V.
Barnes, 32 S. C. 14, 10 S. E. 611 (1890); Lee v. Murphy, 22 Grat. 789
(Va. 1872); Spencer v. Kees, 47 Wash. 276, 91 Pac. 963 (1907); and cases
cited in 60 A. L. R. 1413.

1° A requirement that the grantee abstain from the use of intoxicating liquor
is valid. Arthur v. Craig, 48 IoWa 264 (1878) ; People v. Burns, 77 Hun 92,
28 N. Y. Supp. 300 (1894), aff’d, 143 N. Y. 665, 39 N. E. 21 (1894).

11Est- parte Marks, 64 Cal. 29, 28 Pac. 109 (1883); State cw rel. Davis v.
Hunter, 124 Iowa 569, 100 N. W. 510 (1904); State ea; rel. O’Connor v.
Wolfer, 53 Minn. 135, 54 N. W. 1065 (1893) ; Ea: parte Lockhart, 1 Disn. 105,
12 Ohio Dec. 555 (1855); Comm. v. Haggerty, 4 Brewst. 326 (Pa. 1869);
Flavell’s Case, 8 Watts & S. 197 (Pa. 1844); State v. Barnes, 32 S. C. 14
(1890); State v. Smith, 1 Bailey 283 (S. C. 1829); and cases cited in 60
A. L. R. 1415. Contra: Comm. v. Hatsfield, 1 Clark 177, 2 Pa. L. J. 36 (Pa.

73115—39—von. III—14

200

so is a condition that he leave the United States; 12 even
where transportation as a form of punishment is prohib-
ited;13 but the practice is certainly to be condemned. No
State is justified in attempting to solve its own crime prob-
lem by merely unloading its criminal population upon its
neighboring States. If all States adopted the practice the
net result would be that each State would merely exchange
one lot of criminals for another.

A pardon granted on condition of payment of a fixed sum
of money to a county, to help reimburse the State for ex-
penses incurred in bringing about the conviction, is not.
unlawful.“ Nor is a condition that the convict make full
restitution to the Government of public lands obtained by
fraud.15 A condition that the grantee should not claim his
property nor the proceeds thereof that had been sold by
decree of court under confiscation laws of the United States

has been held valid.16
That the prisoner undergo some substitute punishment is
a valid condition.” So is a condition that the defendant be

1842). In Arkansas the Governor is, by statute, given specific authority to
grant pardons on condition that the convict leave the State and neVer return.
Ark. Dig. Stat. (Crawford and Moses, 1921) §§ 8375—3379.

12People v. Potter, 1 Park. Cr. R. 47, 1 Edm. Sel. Cas. 235 (N. Y. 1846) ;
Flavell’s Case, 8 Watts & S. 197 (Pa. 1844); 00mm. v. Haggerty, 4 Brewst.
326 (Pa. 1869). A pardon by the President conditioned on banishment frOm
the country is valid. Kaval-in v. White, 44 F. (2d) 49 (1930). So also
is a State pardon of an alien on condition that he be turned over to the
Federal authorities for deportation and actually deported. 19 Opinions Att’y
Gen. of Wisconsin (1930) 225.

"Em parte Hawkins, 61 Ark. 321, 33 S. W. 106, 30 L. R. A. 736 (1895);
E0 pa1te Lockhart,1 Disn.105,12 Ohio Dec. 555 (1855).

1‘ People v. Marsh, 125 Mich. 410, 84 N. W. 472 (1900) , Batistelli v. State,
141 Tenn. 565, 213 S. W. 417 (1919). See also Rood v. Winslow, 2 Doug. 68
(Mich., 1845) (pardon granted on condition of payment of $1,000 secured
to county).

15 Bradford v. U. 8., 47 Ct. Cl. 141 (Fed. 1911). And the grantee cannot
reserve the right to improvements made on such lands, nor has the district
attorney any authority to bind the Government to make such reimbursement.
Bradford v. U. 8., 228 U. S. 446 (1913).

1" U. S. v. 81.1: Lots of Ground, Fed. Gas. No. 16299. But such a condition
is only intended to protect purchasers at judicial sales, decreed under the
confiscation laws, from any claim of the original owner for the property sold
or the purchase money paid; consequently such a condition does not preclude
him from applying to the court for the proceeds of a confiscation money bond
secured by a mortgage, which was collected by the oflicers of the court, in
part by the voluntary payment by the obligors, and in part by the sale of the
lands mortgaged. Osbornv. U. 8., 91 U. S. 474 (1876).

17 See Lee v. Murphy, 22 Grat. 789, 802 (Va. 1872) (the Governor “is au-
thorized to substitute, with the consent of the prisoner, any punishment
recognized by statute or the common law ‘ * W)

201

confined in a State or private hospital for the insane,18 or
that he report monthly to a probation officer}-9 But to pro-
vide that the pardon may be revoked on order of the proba-
tion officer has been held a void condition.2o Void also, it
has been held, is a condition that the convict should be put
to work for 3 years in such manner as the directors of public
buildings might direct.21 In England, in 1730, a condemned
criminal was pardoned on condition that he allow the
famous surgeon Cheselden to perforate his ear drum, in
order that the effect upon hearing might be studied.”2 Simi-
lar pardons have at times been granted in this country.

A condition that in case of violation of other conditions
the convict should forfeit all good-conduct allowance earned
prior to his conditional release has been held in Iowa to be
invalid.23 The Arkansas statute, on the other hand, spe-
cifically says that if a person pardoned on condition that he
leave the State and not return is later found within the
State, he must serve his full sentence over again, losing all
time served prior to being pardoned.“

The courts have used the same rules in construing condi-
tional pardons as are applicable to deeds or grants generally,
and have held that where a pardon is granted on a condition
precedent, if the condition is void, the pardon is also entirely
void; 25 but where the pardon is granted on a condition sub-
sequent and the condition is void, the void condition alone
is annulled and the pardon allowed to stand.26

Acceptance not legally necessary.—We have already crit-
icised the oft-repeated dictum that a pardon must be
accepted to be valid, and have pointed out that the latest pro~
nouncement by the United States Supreme Court on the
question has held that acceptance is not necessary.27 While

18E2: parte Davenport, 110 Tex. Ct. 326, 7 S. W. (2d) 589 (1927).

1° In re McKinney, 33 Del. 434, 138 At]. 649 (1927).

”Ibid.

21 Comm. v. Fowler, 4 Call. 35 (Va. 1785).

2”Kenny, Outlines of Criminal Law (14th ed.), pp. 515-516.

afistate v. Hunter, 124 Iowa 569, 100 N. W. 510 (1904).

’4 Ark. Dig. Stat. (Crawford and Moses, 1921) §§ 3375—3379.

,“State v. McIntz‘re, 46 N. C. 1 (1853) ; Comm. v. Huggertu, 4 Brewst. 326
(Pa. 1869).

2“People v. Potter, 1 Park. Cr. R. 47, 1 Edm. Sel. Gas. 235 (N. Y. 1846);
Taylor v. State, 41 Tex. Cr. 148, 51 S. W. 1106 (1899); Comm. v. Fowler,
4 Call. 35 (Va. 1785).

3" Ante, pp. 177—180.

202

this seems the only sensible rule as regards absolute pardons,
there may be more reason for requiring acceptance in cases
of conditional pardon. Thus it has been pointed out that
the conditions may be more onerous than the original sen-
tence, and the convict should therefore have the right to
accept or reject.28 In addition, it has been said that a condi-
tional pardon is in the nature of a contract between the par-
doning authority and the person pardoned, in which there
must be a meeting of the minds.29 This seems unsound, how-
ever. “It is only in a somewhat fictitious sense that a con-
ditional pardon is spoken of as a contract. It is, as a matter
of fact, simply the grant and acceptance of a privilege, with
a condition attached, in accordance with which the privilege
may be revoked.” 3°

A third reason is the purely politic one, that it would be
rather absurd to pardon a convict on certain conditions,
unless there is reason to suppose he is willing to live up to
such conditions.

It is submitted that the true rule should be that the con-
vict has no more legal right to reject a conditional pardon
than an absolute one; but that as a matter of policy, no con«
vict should be released on conditional pardon unless there
is a reasonable assurance that the conditions will be com-
plied with; and unless he is willing to accept its terms, a
conditional pardon should not be granted. He should be
required to promise, preferably in writing, that he will
comply. If he refuses to do so, it would be absurd to release
him notwithstanding. But the legal power to release him
notwithstanding the probability or even certainty that he
will violate the terms of his release should be upheld, and
distinguished from the obvious policy of not exercising the
power under such circumstances.

23In re Williams. 149 N. C. 436. 438, 63 S. E. 108 (1908). See also
Ea: parte Hawk/ins, 10 Okla. 396, 136 Pac. 991 (1913);: Sate ex rel.
Bedford v. McOorkle, 163 Tenn. 101, 105, 40 S. W. (2d) 1015, 1016 (1931);
Ea: part0 Davenport, 110 Tex. Cr. 326, 7 S. W. (2d) 589 (1927).

29In re McKinney, 33 Del. 434, 138 At]. 649 (1927) (concurring opinion of
Rodney, 21.). See also U. 8’. v. Wilson, 7 Pet. 150 (U. S. 1833); People
v. Potter, 1 Park. Cr. R. 47, 1 Edm. Sel. Gas. 235 (N. Y. 1846); Lee v.
Murphy, 22 Grat. 789 (Va. 1872).

'° State v. Hunter, 124 Iowa 569, 574, 100 N. W. 510, 512 (1904). In re
Greathouse, 4 Sawy. 487, Fed. Gas. No. 5,741 (1864), the theory that a con-
ditional pardon is in the nature of a contract was held not applicable to a
proclamation of amnesty with conditions attached.

203

In a few States, statutes specifically require that a con-
ditional pardon be accepted.81

Supervision—Most States have no personnel for super-
vising persons released on conditional pardon, to see that
the conditions are complied with. The result is that for all
practical purposes a conditional pardon is virtually an
absolute release, except that it does not restore civil rights.
In Florida, although conditional pardon is very common
and is used in lieu of parole, there is no supervision what-
ever. Prisoners are ostensibly released into the custody of
some responsible person but as a form of supervision this is
wholly illusory.

In at least four States (New Hampshire, Ohio, Oregon,
and Washington) statutes provide for supervision of con-
ditional pardon cases by the parole authorities. Idaho also
now has one parole oflicer charged with the duty of super"
vising conditional pardon cases. In Kansas, persons so re-
leased are required to report quarterly to the Governor.
In some others (e. g., Montana) they are required to submit
periodic reports by mail. Such unverified reports, of course,
are practically worthless. There probably has never been a
case of any person conditionally released who ever admitted
that he was not leading a model life.

What constitutes compliance with or violation of condi-
tion8.—The conditions must be clearly stated in the pardon,
so that the recipient may know what conduct he must pur-
sue to avoid revocation.32 But conditions so stated must
be strictly complied with by one claiming the benefits of a
pardon, and proof of such compliance must be clearly
shown.33 A condition that an oath be taken after its grant
is not fulfilled by showing that a similar oath had been
taken before that time.“ A pardon from a sentence of

 

31 Ohio Code Ann. (Throckmorton, 1936) § 99 (must be accepted in writing
and attested by one witness) ; W. Va. Code Ann. (Michie, 1932) § 250.

3’ In re McKinney, 33 Del. 434, 138 Atl. 649 (1927); Em parte Reno, 66
M0. 266, 273 (1877). Where a conditional pardon is susceptible of more
than one interpretation, it must be construed most favorably to the grantee.
Osborne v. U. 8., 91 U. S. 474 (1876); Lee 12. Mumhy, 22 Grat. 789 (Va.
1872).

33Haym. v. U. 8., 7 Ct. C1. 443 (1871); Waring v. U. 8., 7 Ct. C1. 501
(1871) ; Scott v. U. 8., 8 Ct. C1. 457 (1872) ; State v. Barnett, 193 Minn. 336,
258 N. W. 508 (1935) ; State v. Addington, 2 Bailey 516 (S. C. 1831).

84Haym. v. U. 8., 7 Ct. Cl. 443 (1871).

204

Imprisonment on condition of paying a fine is not effective
until the fine is paid; and a person granted a pardon with
such a condition attached cannot obtain his release as a
. poor convict after serving the statutory period prescribed
for inability to pay a fine; the condition of the pardon must
be literally and strictly performed, i. e., the fine must
actually be paid.35
However, it has been held that where a pardon is granted
on condition that the person leave the State it is not violated
if he leaves, but later returns; to make such return a viola-
tion, the pardon should expressly make it a condition that
he do not return.36 This seems a very narrow construc-
tion of the document however. In Pennsylvania, it has been
held that such a condition required a permanent absence
during the term of the sentence at least.87
Extent of time conditions may rum—Suppose a convict
is pardoned on condition that he remain a law-abiding citi-
zen, or that he refrain from using liquor, or other such con-
dition, without any limitation of time. Can he be held
guilty of a breach if he commits the forbidden conduct, no
matter how many years thereafter? In other words, will
the condition remain in effect for the remainder of his life,
so that the pardon may be revoked for. breach and he be
recommitted at any time? Or suppose the pardon ex-
pressly states that the condition shall apply for the re-
mainder of his life. Does the power to attach conditions
include conditions so unlimited as to time? Under the
general rule as usually stated, that any condition may be
attached so long as it is not illegal, immoral, or impossible,
it would seem there is no restriction against such conditions.
Thus a pardon granted on condition that the grantee con-
tinue of good behavior for the remainder of his life has been
held valid.38 In one case, however, it was held that a con-
dition that the grantee should not use intoxicating liquors
would be construed to apply only during the terms of his

8“In. re Ruhl, 20 Fed. Gas. No. 12,124 (1878).

36 Em parte Hunt, 10 Ark. 284 (1850).

37 00mm. v. Huggerty, 4 Brewst. 326 (Pa. 1869).

aE‘O'rooks v. Sanders, 123 S. C. 28, 115 S. E. 760, 28 A. L. R. 9-10 (1922).
See also Spencer v. Kees, 47 Wash. 276, 91 Pac 963 (1907) (pardon on con-
dition that convict remain with his relatives, who were to care for him as
long as he should live).

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205

sentence, unless the intent that it should remain in effect
longer is manifest from the language used.39

In Idaho, it is held that sentence continues to run during
the time the convict is out on conditional pardon.40 This
means that after the period of his sentence has expired, he
cannot be returned to the penitentiary, and his conditional
pardon becomes in practical effect an absolute discharge.
The practice in Idaho is to make the conditions effective for
6 months or a year. At the end of that time if no violation
is reported, a final discharge is granted.

there the conditions are such that they can be finally
and completely complied with at one time, fulfillment of the
conditions makes the pardon become the same as if it had
originally been unconditional.“

' Sentence is not served while at liberty—Upon revocation,
the time spent at liberty upon the conditional pardon is not
counted as time served on the sentence, but the prisoner is
remanded to prison to serve the unexpired part of his term.42
This seems a sensible rule; such liberty is not a serving of
the sentence; on the contrary, it is a conditional release from
the obligation to serve the sentence, voluntarily accepted by
the convict and subject to revocation upon his misconduct.
If: he does violate the conditions, so as to cause the pardon
to be revoked, he should not be heard to complain that he is
now returned to the penitentiary in the same condition he
was at the time of release, and with the same sentence still
to be served. Nevertheless, the Idaho supreme court has
held the contrary.43

Revocation—A conditional pardon is as binding on the
State as an absolute one, and cannot be revoked except for
violation of the conditioner"4 Conditions precedent must

5° Hun‘ v. Dyer, 2 Ohio C. D. 727, 4 Ohio Cir. Ct. 595 (1890).

‘0 In re Prout, 12 Idaho 494, 86 Pac. 275, 5 L. R. A. (n. s.) 1064 (1906).

*1 U. S. ex: rel. Schwartz v. Commanding Officer, 78th Divis'ZOn, 252 Fed. 314
(1918): Alvarez v. State. 50 Fla. 24. 32. 39 So. 481. 484 (1925).

42State v. Horne, 52 Fla. 125, 42 So. 388 (1906) ; In re Sutton, 50 Mont. 88,
94, 145 Pac. 6, 8 (1914); Ea: parte Ridley, 3 Okla. Cr. 350, 106 Pac. 549
(1910) ; Crooks v. Sanders, 123 S. C. 28, 115 S. E. 760 (1922) ; 32 Yale L. J.
850; State v. Barnes, 32 S. C. 14, 10 S. E. 611 (1889); In re McKenna, 79
Vt. 34, 64 Atl. 77 (1906). This is expressly provided by statute in some
States. Miss. Code Ann. (1930) § 1300; N. Y. Code Crim. Proc. (Gilbert,
1935) § 696.

”In re Prout, 12 Idaho 494, 86 Pac. 275, 5 L. R. A. (n. s.) 1064 (1906).

4* Stone v. Burch, 114 Fla. 460, 150 So. 128 (1934); En) parte Alvarez, 50
Fla. 24, 391 So. 481 (1905).

206

be performed before the pardon can take effect; conditions
subsequent, if violated, cause the pardon to become null.

Ordinarily, in the absence of statute, before a pardon can
be revoked on the ground of violation of conditions, the
convict is entitled to a judicial hearing as to whether he is
guilty of such a breach or not. The proper procedure
would seem to be to rearrest the prisoner on a warrant and
bring him before the court in which he was convicted or
some other court of criminal jurisdiction, where an order
or rule to show cause why he should not be recommitted
on the original sentence should be granted, and on the re-
turn thereof the prisoner should be allowed to make such
defense as he may have.45

However, if it is expressly stipulated as one of the terms
of the pardon that the Governor shall have exclusive power
to determine summarily whether a breach has occurred,
without a hearing, this is a binding condition and no hear-
ing need be granted.46 In a number of States, the statutes
provide that upon violation, the person conditionally‘par-
doned shall be considered the same as an escaped convict
and may be recommitted without a hearing"7 But unless
provided for by the express terms of the pardon or by stat-

“State v. Horne, 52 Fla. 125, 42 So. 388, 7‘L. R. A. (n. s.) 719 (1906);
rehearing denied, 52 Fla. 143, 42 So. 714 (1907); State ea: rel. O’Connor v.
Wolfer, 53 Minn. 135, 54 N. W. 1065, 19 L. R. A. 783, 39 Am. St. Rep. 582,
9 Am. Cr. Rep. 487 (1893); People v. Potter, 1 Park. Cr. Rep. 47 (N. Y.
1846); Hufi' v. Dyer, 2 Ohio C. D. 727, 4 Ohio C. C. 595 (1890); Comm. v.
Haggerty, 4 Brewst, 326 (Pa. 1869) ; State v. Barnes, 32 S. C. 14, 10 S. E.
611, 6 L. R. A. 743, 17 Am. St. Rep. 832 (1890). Cf. State v. Chancellor,
32 S. C. L. (1 Strobh.) 347, 47 Am. Dec. 557 (1847). In cases involving
breach of a condition that defendant leave the State, the South Carolina
court has held that no trial is necessary. The fact that the prisoner is be-
fore the court is sufliicient proof that the condition has not been observed.
State v. Smith, 1 Bailey 283 (S. C. 1829).

‘6 Henderson v. State, 55 Fla. 36, 46 So. 151 (1908) ; Woodward V. Murdock,
124 Ind. 439, 24 N. E. 104] (1890); Arthur v. Craig, 48 Iowa 264, 30 Am.
Rep. 395 (1878) : State ea rel. Davis v. Hunter, 124 Iowa 569, 100 N. W. 510.
104 Am. St. Rep. 361 (1904); State v. Yates, 183 N. C. 753, 111 S. E. 337
(1922); Ea: parte Houghton, 49 Ore. 232, 89 Fee. 801, 9 L. R. A. (n. s.)
737, 13 Ann. Cas. 1101 (1907); Ea: parte Davenport, 110 Tex. Cr. Rep. 326,
7 S. W. (2d) 589 (1927) ; In re Convicts, 73 Vt. 414, 51 At]. 10, 56 L. R. A.
658 (1901) ; Spencer v. Kees, 47 Wash. 276, 91 Pac. 963 (1907) ; State ea: rel.
Rowe v. Connors, 166 Tenn. 393, 61 S. W. (2d) 471 (1933).

47 Me. Rev. Stat. (1930) ch. 147, §§ 54, 55; Mass. Laws Ann. (Michie,
1933) ch. 127, § 155; Nev. Comp. Laws (1930) § 11581, added by Nev. Stat.
1933, p. 187; N. Y. Laws 1930, ch. 38; Ohio Code Ann. (Throckmorton, 1936)
§ 2211—9.

207

ute, such a summary revocation without a hearing is
illegal.48

On a hearing as to revocation, the court in the absence of
statute may in its discretion impanel a jury to find as to the
facts, but the prisoner has no right to demand a jury trial,
except as to the question of whether he is the person men-
tioned in the pardonfl‘9 On this question the defendant has
an absolute right to a. trial by jury; otherwise a person who
was never convicted by a jury might be remanded to suffer
punishment.50

On a hearing to decide whether the person has breached
the conditions of his pardon, he may show cause why the
pardon should not be revoked. Sickness and poverty have
been held suflicient excuse for not complying with a condi-
tion that he leave the country,51 and so has mental derange-
ment.52 In a Minnesota case, a prisoner pardoned on condi-
tion that he leave the State immediately upon his release
telegraphed his wife to dispose of his property and meet him
at a certain place; but his wife, before she could comply,
was suddenly stricken with paralysis, whereupon the de-
fendant went to her, procured the services of a physician
and concealed himself for a few days until she could be
moved. As he was about to take the train to leave the State
he was rearrested. The arrest was within a week of his
release. It was held he had not violated the condition.53
But where a married woman was pardoned on condition she

 

‘3 Wis. Rev. Stat. (1935) §§ 57.11, 57.12. See Fuller v. State, 122 Ala. 32,
26 So. 146 (1898). It has been held in Florida that the statutory authority
of the pardon board to revoke is not exclusive. Any court of criminal juris-
diction still has power, upon being satisfied that the conditions have been
breached to declare a pardon null and void. Henderson v. State, 55 Fla. 36,
44 So. 151 (1908) ; 67 Cent. L. J. 188. State v. Home, 52 Fla. 125, 42 So. 388
(1906).

‘9 Carraway v. State, 58 Fla. 15, 51 So. 142 (1909) ; State ea: rel. O’Connor
v. Wolfer, 53 Minn. 135, 54 N. W. 1065, 19 L. R. A. 783, 39 Am. St. Rep. 582
(1893); People V. Burns, 77 Hun 92, 28 N. Y. Supp. 300 (1894), aff’d. 143
N. Y. 665, 39 N. E. 21 (1894).

50 Fuller v. State, 122 Ala. 32, 26 So. 146, 45 L. R. A. 502, 82 Am. St. Rep.
17 (1899); State v. Home, 52 Fla. 125, 42 So. 388, 7 L. R. A. (N. S.) 719
(1906), rehearing denied, 52 Fla. 143, 42 So. 714 (1907) ; State ea: rel. O’Con-
nor v. Wolfer, 53 Minn. 135, 54 N. W. 1065, 19 L. R. A. 783, 39 Am. St. Rep.
582, 9 Am. Cr. Rep. 487 (1893) ; Hufi v. Dyer, 2 Ohio C. D. 727, 4 Ohio C. C.
595 (1890).

‘1 Rea: v. Aickles, 1 Leach 390 (1785); Rea; v. Thorpe, 1 Leach 396 note
(1785).

52 People v. James, 2 Caines 57 (N. Y. 1804).

53State ea: rel. O’Connor v. Wolfer, 53 Minn. 135, 54 N. W. 1065 (1893).

208

leave the State, the fact that her husband would not giv
her permission was held no excuse for failure to comply.

Conclusion—Since conditional pardon serves in gener
the same purpose served by parole, and usually does 11
serve it as well (because in most States there is no adequat
supervision of persons released on conditional pardon), th
question may be asked, why should not conditional pardon
be abolished in favor of parole? Under a fully flexibl
parole system, wherein the parole authorities would hav
full power to parole any prisoner at any time, there woul
be very little reason for having conditional pardons als
available. But no parole law is so completely flexible. I
every State, the parole laws are limited so as to prevent th
paroling of certain types of criminals, or the paroling 0
any criminal until after a certain portion of the sentence ha
been served. And whether or not these restrictions repre
sent sound policy as general propositions, hard cases are cer
tain to arise where it is just and proper to release a perso
not eligible under the parole law. The great advantage 0
the clemency power has been its broad scope. It is designer
to break rules—not to be confined by them. Very few re
strictions have been placed on it, or can be, since it rest
upon constitutional and not statutory grant. Thus wher
parole is impossible, conditional pardon is always available
Where the parole law forbids parole before the minimu
sentence has been served, and the judge fixes an abnormally
high minimum, conditional pardon is the most obviou‘
solution. Where only first offenders are eligible to parole,
conditional pardon is the alternative.

This suggests the question: Do the restrictions on parole
represent sound policy? If the net result of a legislative
provision that a person guilty of a certain crime shall not be
eligible to parole is that he is released on conditional pardon
instead of parole (probably with poorer supervision), what.
object is served? Would it not be better to broaden the
parole law, trusting to the good judgment of a competent
parole board to select worthy cases and reject the unworthy?

“ State v. Fuller, 12 S. C. L. (1 McCord) 178 (1821).

209

Of course, conditional pardons serve some purposes not
served by parole. Thus conditional pardons to permit ‘de-
portation or extradition could not be handled by parole.
These constitute an insignificant problem, however.

COMMUTATION

A commutation is “a substitution of a less for a greater
punishment.” 5“ In practice commutation generally means
a reduction of sentence. The reduction may be to a period
already served and thus require immediate release,56 or it
may be to a period not yet fully served, requiring release at
a future time, shorter, however, than the time provided in
the original sentence. Some commutations do not affect the
length of sentence at all, but modify the conditions of im-
prisonment, as by ordering a transfer from the penitentiary
to the reformatory or to an asylum for the insane.

A commutation of sentence to the period already served
and thus requiring immediate release has the same immedi—
ate effect as a full pardon, but is still distinguishable in
legal theory because a commutation, unlike a pardon, does
not legally imply forgiveness and does not restore civil
rights.57 Such commutations are sometimes given to pa-
rolees, to terminate the parole period.

The word “commutation” is also used in another sense, to
refer to laws providing for a scale of reduction of sentence

 

55 State ea: rel. Murphy v. Wolfer, 127 Minn. 102, 148 N. W. 896, L. R. A.
1715B 95 (1914). Accord: Mullen v. U. 8., 212 U. S. 516, 521 (1908) ; Opinion
of the Justices, 210 Mass. 609, 611, 98 N. E. 101 (1912); Eco parte Warren,
39 Okla. 348, 265 Pac. 656 (1928). See also In re Opinion of the Justices,
190 Mass. 616, 78 N. E. 311 (1906) where it was said: “The commutation
of a sentence is a pardon upon condition that the convict voluntarily submits
to a lighter punishment.” See also Opinion of " the Justices, 14 Mass. 472
(1787).

5° Chapman v. Scott, 10 F. (2d) 156 (1925), aff’d. 10 F. (2d) 690 (1926),
cert. denied 270 U. S. 657 (1926).

57 “Although power to commute is logically derivable from power to par-
don, on the principle that the greater includes the less, commutation is
essentially different from pardon. Pardon exempts from punishment, bears
no relation to term of punishment, and must be accepted or it is nugatory.
Commutation merely substitutes lighter for heavier punishment * “ ‘. It
removes no stain, restores no civil privilege, and may be effected without
the consent and against the will of the prisoner.” In re Charles, 115 Kan.
323, 222 Pac. 606 (1924). See also Stone v. Burch, 114 Fla. 460, 463, 154
So. 128, 129 (1934). This distinction is probably incorrect, however, in
saying that a pardon requires acceptance.

210

for good behavior in prison. These will be discussed under
the name of “good time” laws.

Power to grant commutation—In 36 States 58 the power
to grant commutations is specifically included in the pardon-
ing power conferred by the constitution, although of these
the Virginia and West Virginia constitutions refer only to
power to commute capital punishment. It is held, however,
that even though not expressly conferred, power to grant
commutations is included in the general grant of power to
pardon, on the theory that the greater power includes the
lesser.59

The question has sometimes been raised whether this
power to substitute a less for a greater punishment- includes
power to change the nature and character of the punish-
ment, as by substituting life imprisonment for a death sen-
tence. It is held that inasmuch as life imprisonment is
generally understood to be a less penalty than death that
such a substitution is a proper commutation.60 In Maryland,

“Ala. Const. art. V. § 124; Ariz. Const. art. V, § 5; Ark. Const. art. VI,
§ 18; Cal. Const. art. VII, § 1; see In re Bogden, 192 Cal. 163, 218 Pac. 1017
(1923) ; Colo. Const. art. IV, § 7; Del. Const. art. VII, § 1; Fla. Const. art.
IV, § 12; Ga. Const. art. V, § 1, par. XII; Ga. Code (1933) § 27—2701; Idaho
Const. art. 4, § 7; 111. Const. art. 5, § 13; Ind. Const. art. V, § 17; Iowa
Const. art. IV, § 16; Ky. Const. § 77; La. Const. (1812) art. III, § 11; Me.
Const. art. V, part 1, § 11; Mich. Const. art. VI, § 9; Mo. Const. art. V, § 8:
Mo. Stat. Ann. (Vernon, 1932) § 3798; Mont. Const. art. VII, § 9; Mont.
Rev. Codes Ann. (Anderson and McFarland, 1935) § 12247; Neb. Const. art.
IV, § 13; Neb. Comp. Stat. (1929) §§ 29-2602, 29—2604; Nev. Const. art. V,
§ 14; Ea part6 Jones, 1 Nev. 319 (1865); N. Y. Const. art. IV, § 5; N. C.
Const. art. III, § 6; N. D. Const. art. 3, § 76; Ohio Const. art. III, § 11;
Okla. Const. art. VI, § 10; Ore. Const. art. V, § 14; Ore. Code Ann. (1930)
§ 13—1801; Pa. Const. art. IV, § 9; S. C. Const. art. 4, § 11; S. D. Const.
art. IV, § 5; S. D. Comp. Laws (1929) §§ 5310, 5311; TBY. Const. art. IV,
§ 11, as amended 1936; Tex. Laws 1935, p. 1237; Utah Const. art. VII, § 12;
Utah Rev. Stat. Ann. (1933) § 67—0-1; State ex rel. Bishop v. Board of Cor-
rections, 16 Utah 478, 52 Pac. 1090 (1898); Va. Const. art. V, § 73; Wash.
Const. art. 3, § 11; W. Va. Const. art. VII, § 11; Wis. Const. (1848) art. V,
§ 6; Wyo. Const. art. IV, § 5.

‘9 Ex parte Wells, 18 How. 307 (U. S. 1855) ; In re Charles, 115 Kan. 323,
226 Pac. 606; McDowell v. Conch, 6 La. Ann. 365 (1851) ; State er rel. Daniel
V. Rose, 29 La. Ann. 755 (1877) ; In. re Opinion of the Justices, 210 Mass. 609,
98 N. E. 101 (1912) ; In re Opinion. of the Justices, 190 Mass. 616, 78 N. E.
311 (1906) ; In re Kennedy, 135 Mass. 48, 51 (1883) ; In re Court of Pardons,
97 N. J. Eq. 555, 562, 129 At]. 624, 627 (1925) ; Cook v. Freeholders of Mid-
diesear, 26 N. J. L. 326, 329 (1857). Contra: Ea: parte Jones, 1 Nev. 319
(1865) ; and see State v. Twitty, 11 N. C. 193 (1825).

60Biddle v. Perovich, 274 U. S. 480 (1926) ; People em rel. Patrick v. Frost,
133 N. Y. App. 179, 117 N. Y. Supp. 524 (1909) (resting in part on a statute) :
see also State v. Olander, 193 Iowa 1379, 1382, 186 N. W. 53 (1922).

This is supported by the decisions that change of punishment ea: post facto
from death to life imprisonment is valid, becauSe it does not increase the

211

the Governor is expressly authorized by statute to commute
a death sentence to banishment for any period he may think
expedient.61 There is some authority, however, that a prison
sentence cannot be commuted to one of fine.62

The Governor may commute a definite sentence to an in-
definite term, and in such case the provisions governing
indeterminate sentences come into operation even though the
offense was not one for which an indeterminate sentence
could have been imposed by the court; also that the Gov-
ernor may commute to a minimum term of less than 1 year,
although so short a term is not permitted under the inde-
terminate sentence law. In such a case, a prisoner is
eligible for parole upon serving the minimum fixed by the
Governor.”

The power to commute is not limited to a single act;
there may be commutation of a sentence already previously
commuted.64 ‘

Attempted legislative restrictions on power to grant oom-
mutation.——Sometimes statutes are found attempting to re—
strict this power. Thus the Colorado Legislature has pro-
vided that the Governor may commute death sentences to
imprisonment for life or for a term of not less than 10
years.65 The Colorado constitution gives the Governor
power to commute sentences without restriction,66 and it
would seem therefore that he may commute death sentences
to any lesser punishment, including imprisonment for less
than 10 years.

punishment. 0'. v. Wyman, 12 Cush. (Mass) 237 (1853); McGuire v. State,
76 Miss. 504, 25 So. 495 (1899). Contra: Shepherd v. People, 25 N. Y. 406
(1862).

But a commutation reducing the punishment for murder from “life sentence
to manslaughter” is void: (1) As an attempt to change the judgment of the
court; and (2) because it does not fix a period less than the original sentence,
since the punishment for manslaughter may be life or any number of years.
People v. Jenkins, 322 Ill. 33, 152 N. E. 549 (1926).

61LMd. Ann. Code (Bagby, 1924) art. 41, § 51.

6’ Opinion Att’y Gen. of New Mexico, 1912—1913, p. 83. But the same result
can be accomplished by a pardon conditional upon paying a fine. And where
the sentence is for both fine and imprisonment, the Governor may commute
either, in whole or in part. Ibid.

°3 Opinions Att’y Gen. of Wisconsin, vol. 20, p. 1050 (1931).

“People v. Jenkins, 325 111. 372, 156 N. E. 290 (1927).

‘5 Colo. Stat. Ann. (Michie, 1935) ch. 131, § 117.

“Colo. Const. art. IV, § 7.

212

The Tennessee statute also undertakes to authorize the
Governor to grant commutations with certain restrictions.67
While the Tennessee constitution does not expressly em-
power the Governor to grant commutation, it does empower
him to grant “reprieves and pardons,” 68 and we have seen
that this is generally held to include power to grant com-
mutation. It would seem, therefore, that the legislature
is without power to restrict this constitutional prerogative.

A restriction in the Kansas statutes that the Governor
may commute capital sentences to imprisonment for life or
for a term of not less than 10 years 69 may perhaps be
valid, because the Kansas constitution makes the Governor’s
pardoning power subject to “regulations and restrictions
prescribed by law.” 7°

Purposes.—(1) To permit parole.—The most frequent
use of commutation is to make the prisoner eligible for
parole. This may be necessary or desirable in two types of
cases: (1) To parole persons excluded from the parole law;
(2) to parole persons who under the law are not eligible
yet, but would be later.

The first type of case is occasionally met with in Iowa,
among other States. The Iowa parole law excludes those
serving life sentences. It has not been uncommon for the
board of parole to find in one of the penal institutions a
“lifer” who seemed to be one of the best parole risks of all
the prisoners there. The board has not been hasty to act
in such a case, but after such an inmate has served long
enough so that his provisional release would not disturb the
community’s sense of justice, it has recommended to the
Governor that the sentence be commuted to a term of years
in order that a parole might be granted. The practice has
been to change the sentence to a rather long term. Since

0? Tenn. Code Ann. (Williams, 1934) §§ 174, 11839, 11840, 11820. This
provision limits the Governor’s power to commute to two situations: (1)
Commutation of a death sentence to life imprisonment when he believes the
facts do not warrant a pardon or when the supreme court certifies that in their
opinion there were mitigating circumstances and that the punishment ought
to be commuted; and (2) remitting a portion of a sentence of a penitentiary
convict upon written recommendation of the commissioner of institutions.

”Tenn. Const. art. III, § 6.

“Kan. Gen. Stat. Ann. (1935) § 62—2220.

7° Kan. Const. art. I, § 7. The restriction is at all events not important
since the death penalty is now attached to only one crime, treason. Kan.
Gen. Stat. Ann. (1935) § 21—201.

 

 

213

eligibility for parole is not dependent on having served any
stated portion of the sentence, this device permits reincar-
ceration for the probable duration of the prisoner’s life,
should it be necessary to revoke his parole, without delaying
the time of his original release. Such recommendations
. have usually been followed by the Governor. The board
and the Governor seem to feel that they are 'in a better
position to pass upon the problem of provisional release of
an inmate when they are considering the case of a particular
person, with the facts of the crime and his case history
before them, than the legislature was when it was dealing
merely with abstractions. And when they feel that this
device should be employed for this purpose they resort to it.
Furthermore, they seem to have been rather fortunate in
the selections they have made, and have had little trouble
from parolees who have been released by this procedure.

The second type of case is found in most of the States
where the parole law requires that the prisoner serve his
minimum sentence (as in Missouri) and where it is felt
that the particular prisoner is safe and worthy to be
paroled before that time. In States where pardon and
parole are administered by the same body, this use of com-
mutation practically avoids the restrictions of the parole
law. If a parole is deemed advisable, but the law renders
the prisoner ineligible, he is given a commutation and then
immediately paroled.

A particular need for this practice seems to exist in
Arizona, and commutations are common in that State. The
reason seems to be that the judges of the State often im-
pose minimum and maximum sentences without any ap-
parent understanding of the operation of the two kinds of
good-time allowance which will work to reduce the maxi-
mum sentence; and often fix a minimum so near to the
maximum that the maximum with good-time deductions
will be less than the minimum. And since the convict is
not eligible for parole until expiration of the minimum,
often the convict is entitled to full release by expiration
of the maximum sentence with good-time deductions before
he is ever eligible for parole.71 Therefore the board in such

71 See, for example Clark, v. State, 23 Ariz. 470, 204 Pac. 1034 (1922). For
a detailed discussion of this problem, see the Arizona digest on Parole, vol. I.

214

cases frequently commutes the minimum sentence, in order
to allow the prisoner to be released on parole for a period
before he is entitled to absolute discharge.

Usually when the board recommends a commutation of a
minimum sentence, they also include the recommendation
that when the commutation becomes effective on approval
of the Governor, that the defendant be granted an immedi-
ate parole. Commutations in Arizona are in effect a com-
bination of executive clemency action and parole. The
very purpose of the recommendation of a commutation of
the minimum sentence is to effect a parole. While the
Governor usually approves the recommendations of the
board in executive clemency cases, he does not always do so.
Recently there has been considerable public criticism in
Arizona of parole and the release of prisoners. In several
cases where the board has recommended commutations, the
Governor because of this criticism has refused his approval.

(2) To avoid death sentence.—A second important use of
commutation is to reduce a death sentence to imprisonment.
In some States, e. g., Nevada and Washington, commutation
is seldom used except in such cases.

An interesting situation arose soon after Oklahoma was
admitted to the Union, when the Governor took the position
that the death penalty was wrong, and that he would com-
mute all death sentences to life imprisonment. The crim-
inal court of appeals undertook to deliver a long
denunciation of the Governor’s attitude, and held that the
Governor was precluded “from commuting a death penalty,
in a single case, upon the ground of his alleged conscientious
scruples * * * he is positively forbidden by law to
allow his scruples to influence him in the least in his
action.” 72

A Florida act of 1935 provides that whenever a person
is convicted of a capital offense, and upon appeal the
supreme court is equally divided, the board of pardons shall
immediately commute the sentence to life imprisonment.73

(3) Miscellaneous.——Where newly discovered evidence
tends to mitigate the degree of guilt, this is a valid ground

"Henry v. State. 10 Okla. Cr. 369, 136 Pac. 982 (1913).
"Fla. Laws 1935, c. 16810, 5 1.

 

 

 

 

 

215

for commuting the sentence. Similar is the case where
under aroused popular passion the defendant was given an
abnormally severe sentence, which calmer judgment later
reveals as unjust. The Governor of Oregon in recent years
has granted commutation in a number of cases changing the
punishment from imprisonment in the penitentiary to im-
prisonment in county jails where persons had been given
penitentiary sentences for offenses usually punished by a
jail term.

In Oklahoma a great many commutations have been
granted by the present Governor (800 in 1935) to allow the
time served by a defendant in jail, and the court costs, to
apply on his penitentiary sentence.

The Pennsylvania board since 1929 has adopted a policy
of recommending commutation instead of pardon as much
as possible. Before 1929 commutation was exercised only
to reduce a death sentence to life imprisonment. In 1929 a
statute was passed empowering the board to hear applica-
tions for commutation and make recommendations to the
Governor thereon.” Since 1931 the board has recommended
pardon in only 154 cases, and commutation in 971.

Procedura—In most States, the procedure for applying
for commutation is the same as for pardon, although in
some States a separate procedure is provided for by statute.
Application for commutation of a death sentence especially
is sometimes separately provided for, and in some States the
usual requirements of notice are waived.75

In Kansas, prior to 1921, there was no provision requiring
notice for applications, for commutation. The practice of
granting commutation without notice grew up, until in
1921 the legislature enacted a law requiring notice to the
trial judge and prosecuting attorney, as well as publication,
the same as in pardon cases.76

Conditional commutation—Commutation may be granted
conditionally; any conditions may be attached that are not

7‘ Pa. Stat. Ann. (Purdon, 1930) tit. 71, § 299.

75 See, for example, Iowa Code (1935) § 3817.

76 Kan. Gen. Stat. Ann. (1935) § 62—2216. A commutation granted without
the required notice is void. Jamison v. Flam/nor, 116 Kan. ‘624, 646, 228
Pac. 82, 93 (1924).

7 3115—39—v0L. III—15

216

illegal, immoral or impossible of performance.77 In Oh
it 'has been said that While conditions to a pardon may

precedent or subsequent, conditions to a commutation mt
be precedent.78 But this does not seem to be true. T
most usual conditions are subsequent—that the conv'
commit no further crimes, that he behave as a law-abidii
citizen, etc. Such conditions are valid.79 So also is a 001
mutation for a convict wanted in another State for murd
conditional upon his conviction in the demanding State
Moreover, the conditions may be indefinite in duration

The Governor of California has at times commuted
death sentence to life imprisonment without possibility
parole. The question may arise whether this limitation
binding on the parole board. It could be argued that sin
the administration of parole is vested in the board, it is fr
to decide when and to whom parole should be granted.
the other hand, since, as we have said, the Governor in
attach any condition not illegal, immoral, or impossibl
there would seem no reason why such a condition is not
be regarded as legal and binding.

Acceptance not 72ecessary.—Although as we have seen,
there have been numerous dicta to the effect that a pardo
requires acceptance, in the case of commutations it hc
always been generally agreed that a commutation to a less
punishment may be imposed upon the convict without 11'
acceptance and against his consent.” In a leading Feder

”In. re Prouf, 12 Idaho 494, 86 Pac. 275 (1906); People v. Moore, 6
Mich. 496. 29 N. W. 80 (1886) ; Ex parte Strauss, 320 M0. 349, 7 S. W. (2d
1000 (1928); Ea: parte Webbe, 322 Mo. 859, 30 S. W. (2d) 612 (1929)
People ea: rel. Brackett v. Kaiser, 209 App. Div. 722, 205 N. Y. Supp. 31
(1924); Hammond V. Long, 212 App. Div. 213, 207 N. Y. Supp. 788 (1925
(semble); People v. Burns, 77 Hun 92, 28 N. Y. Supp. 300. afi’d. 143 N.
665, 39 N. E. 21 (1894); People cw rel. Marks v. Lawes, 131 Misc. 426, 22
N. Y. Supp. 196 (1926) ; In re Houghton, 49 Ore. 232, 89 Pac. 801 (1907).

73 Opinion Att’y Gen. Ohio (1927) No. 1425.

7" Em parte Kelly, 155 Cal. 39, 99 Pac. 368 (1908); In re Wilson, 29 Ca
App. 702, 157 Pac. 529 (1916); Stone Y. Burch, 114 Fla. 460. 154 So. 12
(1934) ; People ea: rel. B-I'ackett v. Kaiser, 209 App. Div. 722. 205 N. Y. Supp
317 (1924) ; People v. Burns, 77 Run 92, 28 N. Y. Supp. 300. afi’d. 143 N. Y
665, 39 N. E. 21 (1894) (condition of abstaining from intoxicants).

SOReport Att’y Gen. Idaho (1931—2) p. 42.

81Ea: parte Kelly, 155 Cal. 39, 99 Pac. 368 (1908).

52 Ante, ch. V.

83Bz'ddle V. Perov-ich, 274 U. S. 480 (1926) ; Chapman v. Scott, 10 F. (2d)
156, aff‘d. 10 F. (2d) 690 (1925) cert. denied. 270 U. S. 657 (1926); In re
Charles, 115 Kan. 323, 222 Pac. 606 (1924) ; Ex: parte Webbe, 322 M0. 589, 30

mun-a aI—L‘H’ < ..,

 

217

case, the President commuted a sentence to a term already
served by the convict in order to permit his prosecution and
punishment in a capital case in a State court. The convict
refused the commutation and urged that the exercise of the
power to commute was but the exercise of the pardoning
power in a lesser degree, and that since a pardon required
acceptance the same was true as to the lesser grant; but the
court answered that even though it be admitted that a par-
don required acceptance there was a distinction between
pardon and commutation, and the law was well settled that
a commutation did not need acceptance by the convict in
order to be operative.84

In the leading case decided by the United States Supreme
Court, it was argued that where the President undertOok to
commute a death sentence to life imprisonment the consent
of the prisoner was necessary because to his mind the im-

' prisonment for life might be a worse rather than a lesser

punishment. The court disposed of this contention by say-
ing, “by common understanding, imprisonment for life is
a less penalty than death.” Furthermore, instead of being
content to distinguish commutation from pardon, the court
denied generally the proposition that acceptance was neces-
sary for the validity of any form of executive clemency.85
Abuse of the power to commute—Criticism has arisen
from time to time of the administration of the commuting
power. In Minnesota in recent years the pardon board has
tended to make more and more use of conditional com-
mutation. Of the 721 cases in which the board granted
clemency during the years 1921—36, 88.2 percent were com-
mutations. Moreover, many of these were conditional com—
mutations (31.2 percent of the 459 commutations granted
from 1926 to 1936). And the use of commutation and the
attaching of conditions to such commutations have both
been increasing. Of 336 commutations granted from July

S. W. (2d) 612 (1929); People er rel. Patrick v. Frost, 133 App. Div. 179,
117 N. Y. Supp. 524 (1909) ; Lee v. Murphy, 22 Grat. 789 (Va. 1872).
Conditional commutation has been held to require acceptance. Ex parte
Strauss, 320 Mo. 349, 350. 7 S. W. (2d) 1000, 1001, (1928). But this seems
unsound, for the reasons stated in connection with conditional pardon.
840'hapman v. Scott, 10 F. (2d) 156, afli’d. 10 F. (2d) 690 (1925), cert.
denied, 270 U. S. 657 (1926).
35 Biddle V. Perom'ch, 274 U. S. 480 (1926).

218

1, 1925, to December 31, 1934, conditions were attached
only 56, or 16.7 percent. Of 137 commutations grant
during the two years 1935 and 1936, conditions were
tached in 97, or 71.3 percent. This, it was felt, invaded
field belonging to the State parole board. The members
the board of pardons themselves have been critical of t.
liberal use they have made of their power to commute se
tences. S0 strong was this opinion that, in 1934, upon t
recommendation of the Minnesota Crime Commission t
legislature passed the following bill:

“That the function of the board of pardons shall be cc
fined to such cases as do not come within the statuto
jurisdiction of the board of parole, except that the boa
of pardons shall retain its present jurisdiction in relati
to life sentences and to claims of innocence and to sentenc
imposed through clerical error.” The late Governor Flo
B. Olson vetoed this measure. It is said that after he 11:
become more familiar with the work of the pardon boar
Governor Olson was sorry for his adverse action on t1
legislation.

In 1926, the Missouri Crime Survey commented critical
on the use of commutation in that State and presented i
teresting figures on the operation of this procedure.
quote from the Missouri Survey report:

“To make a reliable test of the effect of commutatio
upon severe and long sentences, the outcome of all seve
sentences and of sentences of 25 years or more in lengt
imposed upon criminals committed to the Missouri Penite
tiary in the 5-year period from 1905 to 1910, was studie
and tabulated. In this period 138 sentences of this cha
acter were imposed; 68 prisoners received sentences rangin
from 25 to 60 years in length; 29 received 99-year sentence
28, life sentences; and 13 were sentenced to be executed.

“First, of the group of 68 whose original sentences range
from 25 to 60 years in length—only two are still serving
.54: received commutations of sentences. The average lengt
of their original sentences was 32.05 years—the average tim
:served, 8.75 years. In other words, their sentences were 01
':by commutation to one-fourth of the original sentence. A
:to the other 12 in this group, 3 were transferred to an asylui
:for the insane, the sentences of 2 were reversed and re

219

manded by the Supreme Court, 1 was released from the
institution to be executed on another charge, 5 died at the
institution and 1 escaped.

“Second, the sentences of 25 of the 29 prisoners who re-
ceived 99-year sentences each were cut by means of commu-
tation to 11.19 years of service in the institution, one-ninth
of the original sentence. The other four in this group died
at the institution. None of the 29 prisoners receiving a 99-
year sentence are in the institution now.

“Third, of the 28 receiving life sentences, 5 died at the
institution, 4 were transferred to state hospitals for the in-
sane, 3 are still serving time, and records are incomplete as
to the outcome of 1, but the life sentences of the other 15
prisoners were commuted to an average of 10.89 years.

“Finally, in regard to the 13 who were sentenced to be
executed, whose sentences were commuted to life imprison-
ment, 1 was transferred to a state hospital and 4 died, but
the sentences of the other 8 were commuted to an average
of 10.44 years of service in the institution. Of the 18 origi-
nally sentenced to hang, not one was hanged, not one has
had to serve a life sentence. In fact, not a single one is in
the institution now. Before final conclusions are drawn, it
should be noted that 80 percent of the 138 criminals in-
cluded in this tabulation under discussion were convicted
of murder.” 3“

Eflect 0 f commutation—A commutation substitutes a new
commuted punishment for the original sentence, for all legal
purposes. Thus a statute requiring the death penalty for
anyone committing first—degree murder while serving a
sentence of life imprisonment was held applicable to a
prisoner whose sentence had been commuted from death to
life imprisonment.87 In another case a statute provided
that applications for a new trial had to be made within 1
year after judgment, except in case of a death sentence,
when the motion might be made at any time before execu-
tion; the defendant had been sentenced to death for first-
degree murder, but on the day set for his execution the
Governor had commuted his sentence to life imprisonment.

“Missouri Crime Survey, part XI, pp. 67—69.
37 Johnson v. State, 183 Ala. 79, 63 S0. 163 (1913).

220

More than a year later the defendant moved for a new tr
on the ground of newly discovered evidence, contendi
that the original sentence of death excepted him from
statutory limitation. It was held that the defendant '
subject to the sentence as modified, including the limitati
on application for a new trial.88

Eligibility for parole is also determined according to t
new. sentence,89 and, as we have seen, one of the main p
poses for which commutation is used is to hasten the ti
when the convict may be released on parole. The Illin
and Kentucky courts, however, have held cont/m on t
question, construing the statute which makes a priso
eligible for parole upon serving the minimum sentence “i
posed by law,” strictly and literally so as not to per
parole upon expiration of the minimum imposed by t
Governor by commutation.90 It would seem sounder to ho
that the Governor’s power to commute a minimum senten
makes the new sentence the complete substitute for the o
for every purpose, including parole.

Efleot on good—time allowance.—A question which 11
sometimes arisen involves the effect of the commutation
sentence upon the computation of good-time allowan
The problem is best illustrated by a concrete example:
eman is sentenced to life imprisonment; after serving
years of this sentence he is granted a commutation reducii
the sentence to a term of 30 years. At the end of 191/2 yea
he petitions for release on writ of habeas corp-us, allegin
that with the good—time allowance provided by statute o
a sentence of 30 years, he is now entitled to an absolute di
charge. Is this contention correct or should the commut.
tion to 30 years be interpreted to mean that he should serv
the full 30 years without deduction for good time, or pe
haps a third solution, that good-time allowance shoul
begin to accumulate from the time the commutation wa
granted but not before?

It has been held in at least two cases that the convict i
entitled to good-time allowance on the full sentence be

88People v. Larkman, 137 Misc. 466, 244 N. Y. Supp: 431 (1930); 31 Co]
Law Rev. 165.

8"Duehay v. Thompson, 223 Fed. 305 (1915).
90People v. Jenkins, 325 I11. 372, 156 N. E. 290 (1927); Alford v. Hines
189 Ky. 203, 224 S. W. 752 (1920).

221

ginning from the time he was first incarcerated. “After
commutation,” the Minnesota court has held, “the commuted
sentence is the only one in existence, and the only one to be
considered. After commutation, the sentence has the Same
legal effect, and the status of the prisoner is the same, as
though the sentence had originally been for the commuted
term. * * * It should logically follow that when a
prisoner’s sentence is reduced from a life sentence to ‘a
definite term other than life’ he is brought within the
language of the statute allowing a diminution of such a
definite term for good time.” 91

On the other hand, the North Carolina court has held that
where a sentence is commuted from life to a term of years,
the convict is entitled to good-time allowance, but only from
the date of the commutation,92 while in a Nebraska case the
court held that in such a case the commutation indicated
that the prisoner was to be kept in confinement until the
date mentioned, and so should not be allowed good time at
all.”

Revocation—Revocation of commutation is governed by
the same rule as revocation of pardon. Once delivered, a
commutation cannot be revoked, except for violation of con-
ditions. And ordinarily delivery to the convict’s attorney
or even to the prison warden is sufficient.94 In an Oklahoma
case, the Governor commuted a life sentence to a term of 6
years, but 2 months later he undertook to revoke his action.
Upon expiration of the 6 years, it was held the convict was
entitled to his release.95

REPRIEVES

“A reprieve, from reprendre, to take back,” says Black-
stone, “is the withdrawing of a sentence for an interval of

 

91 State ea; rel. Murphy v. Wolfer, 127 Minn. 102, 148 N. W. 896, L. R. A.
1915B 95 (1914).

93 In re McMahon, 125 N. C. 38, 34 S. E. 193 (1899). This is specifically
provided by statute in South Carolina. S. C. Code (Supp. 1936) § 1578.

98 In re Hall, 34 Neb. 206, 51 N. W. 750 (1892) (order of commutation re-
duced sentence to 9 years “actual time”). Accord: Opinions Att’y Gen. of
South Dakota (1927—28) p. 245.

04Opinions Att’y Gen. of Colorado (1925—26) p, 129. Contra: People ea: rel.
Presser v. Lawes, 221 App. Div. 692, 225 N. Y. Supp. 53 (1927), holding that
the governor “may revoke a commutation, once granted, any time prior to the
actual discharge of the prisoner.”

9'5an parte Warren, 39 Okla. Cr. 348, 265 Pac. 656 (1928).

222

time, whereby the execution is suspended.” 9“ It “is merel
a respite, a postponement of the execution of the sentence
* * * usually granted in order that time and oppor
tunity may be obtained for the final action * * * on a
application for pardon.” 97

The term “respite” is nearly synonymous with “reprieve.’
“Either signifies the suspension, for a time, of the execution
of a sentence which has been pronounced.” 98

At common law it was at least dubious whether the term
applied to anything other than capital sentences,99 but in
most States today the constitutional grant of power to “re-
prieve” is construed to apply to all offenses regardless of the
sentence imposed. The historical correctness of this view
has been well stated by the “Test Virginia court:

“The power to pardon necessarily includes the power to
reprieve or suspend the sentence until the matter can be
inquired into and determined. At common law the power
to reprieve was lodged in the courts, as the representatives
of the king, he being considered the very fountain of jus-
tice; and he was never called upon to exercise it except in
capital cases of necessity. All offenses were deemed offenses
against the kincr. ‘It is reasonable that he only who is
injured should have the power of forgiving.’ 1 Cooley, Bl.
(3d ed.) 268. Because the king was never personally called
upon to exercise the power of reprieve, owing to the author-
ity delegated by him to his courts, except in capital cases,
has grown up the theory that he had no such power. Al—
most all offenses in England in its early history were capi-
tal, the number being not less than 160. The. king was kept so
busy in capital cases that minor offenses or misdemeanors
were intrusted to his courts, justices, and magistrates. That
he had the power to reprieve or suspend sentence in any
case of necessity, there cannot be the least doubt. The gov-
ernor of this state is clothed with the king’s prerogative
in this respect, except wherein it is plainly limited by the

90B]. Comm. 394; Ea: parte United States, 242 U. S. 27, 37 (1916); In. re
Buchanan, 146 N. Y. 264, 273, 40 N. E. 883 (1895); Sterling v. Drake, 29
Ohio St. 457 (1877).

97 State ex rel. Daniel v. Rose, 29 La. Ann. 755, 759 (1877). Accord: Gore
v. Humphries, 163 Ga. 106, 135 S. E. 56 (1926).

98 Bishop, Criminal Procedure (3d ed.) vol. I, § 1299.

99 Ibid.

223

constitution. Hence he has the power to reprieve in all
cases of felony where necessity requires his intervention.
Of this necessity he is the sole and final judge, and his
conclusions are not reviewable by the courts.” 1

The power of the courts temporarily to suspend sentence
is sometimes referred to as a power to reprieve, but such a
judicial “reprieve” should not be confused with reprieves
under the pardoning power of the executive.2

Power to grant—In most States the constitutional pro-
visions for the pardoning power expressly mention power
to grant reprieves among other types of clemency. It is
held, however, that even without such express words, the
general power to grant “pardons” includes the lesser power
to grant reprieves.3 The New Hampshire court has held
contra, however, holding that the constitutional power to
grant pardon does not include power to reprieve, but that
there exists a class of reprieves etc necessitate logic, and that
power to grant such reprieves is vested in the Governor as
chief executive magistrate.4

The power to reprieve carries with it power to fix a later
date for execution. “A subsequent execution takes place
not by virtue of a new sentence, but by reason of the ex-
piration of the temporary suspension of the original sen-
tence which was caused by the respite.” 5 In the States
where the Governor’s pardoning power must be exercised
in conjunction with a board of pardons, it is common to
provide that he may grant reprieves without obtaining the
recommendation or consent of the board.6 Limitations are
sometimes placed upon this power, however. In Idaho,

 

1State ea: rel Stafl‘ord- v. Hawk, 47 W. Va. 434, 34 S. E. 918 (1900);
Accord: Opinions Att’y Gen. (South Dakota 1925—26), p. 145; Opinions Att’y
Gen. (Washington 1821—22), p. 392. But see Sterling v. Drake, 29 Ohio St.
457, 461 (1877); State v. Finch, 54 Ore. 482, 103 Pac. 505 (1909); In re
Dormitzer, 119 Ore. 336, 249 Pac. 639 (1926).

2A statute which confers upon the courts power to suspend sentence is not
invalid as an invasion of the executive power to reprieve. Fuller v. State,
57 So. 6 (Miss. 1912).

'Ew parte Fleming, 60 Miss. 910, 912 (1883); State cw rel. Stafford v.
Hawk, 47 W. Va. 434, 34 S. E. 918 (1900).

4 Ea- parte Howard, 17 N. H. 545 (1845).

5E4!) parte Fleming, 60 Miss. 910, 912 (1883) Accord: Sterling v. Drake,
29 Ohio St. 457 (1877).

“This is true in Delaware, Florida, Idaho, Iowa, Louisiana, Montana, New
Jersey, North Dakota, Pennsylvania, South Dakota, Texas, Utah, and
Washington.

224

Nebraska, North Dakota, and Utah the Governor may gran
a reprieve not extending beyond the next session of th
board of pardons, and in Nebraska there is a Jfurther limi
tation in that the reprieve can in no case be for more tha
30 days.7 In at least four other States specific time limit
are stated. Thus in Delaware, the Governor may not gran
a reprieve longer than 6 months without obtaining th
recommendation of the board; 8 in Florida he may repriev
for not more than 60 days; 9 in New Jersey for not mor
than 90 days after conviction; 1° and in Texas he may gran
only one reprieve of not more than 30 days, without obtain
ing the consent of the board.11 Where there is no expres
limitation on the number of successive reprieves that ma
be granted, any number of repeated reprieves may b
given.12 In one Arizona case there were seven successiv
reprieves extending over a period of 21/2 years.13 Also
where there is no limitation on the length of any reprieve,
it seems a reprieve may be given for any period, no matter
how long—even indefinitely. And in States where the
death warrant must be issued by the Governor, he may in
effect grant an indefinite reprieve by merely refraining
from issuing a warrant. In one Pennsylvania case, involv-
ing a woman sentenced to death in 1902, the board of
pardons thrice refused to commute the sentence to life im-
prisonment. Nevertheless, Governor Pennypacker never
reissued a death warrant and the woman remained in the
county jail.14 Governor Pennypacker was a learned jurist

"Idaho Const. art. IV, § 7; Neb. Const. art. IV, § 13; Neb. Comp. Stat.
(1929) § 29-2630; N. D. Comp. Laws Ann. (1913) § 11100, as amended
N. D. Laws 1935, ch. 248; Utah Const. art. VII, § 12; Utah Rev. Stat. Ann.
(1933) § 67—0—2.

3Del. Const. art. VII, § 1.

“Fla. Const. art. IV, § 11.

1° N. J. Const. art. V, par. 9. “Conviction” means the sentence of the trial
court. Clifford v. Heller, 63 N. J. L. 105, 42 Atl. 155 (1899).

11 Tex. Const. art. IV, § 11, as amended Tex. Laws 1935, p. 1237.

12This is true even Where it is provided that the governor may not grant
a reprieve for more than a stated number of days; he may still grant suc-
cessive reprieves aggregating mOre than that number of days. Advisory
Opinion t0 the Governor, 62 Fla. 7, 55 So. 865 (1911); Simmons v. Fenton,
113 Neb. 768, 205 N. W. 296 (1925).

13 Rodriguez v. State, 18 Ariz. 74, 156 Pac. 94 (1916). See also Peralta
v. State, 18 Ariz. 79, 156 Pac. 96 (1916); Chavez v. State, 18 Ariz. 80, 156
Pac. 97 (1916) ; Berez v. State, 18 Ariz. 81, 156 Pac. 97 (1916).

1‘ Kate Edwards, IV Pardon Rec. 403.

226

have been especially important in Oklahoma, because of an
inconsistency in the statutes. One statute provides that in
a case resulting in a death sentence, the judge shall fix the
time for execution at a date not less than 60 nor more than
90 days after entry of judgment?0 But elsewhere it is

provided that in all cases of conviction of felony, the de- ‘ .

fendant shall have 6 months in which to perfect his ap-
peal.21 To protect the defendant in his right to 6 months’

 

time in which to appeal, the Governor in practically all 1

capital cases grants a reprieve as a matter of course, post-
poning execution until after the 6 months’ period.22

Where, on the other hand, the law does not permit the
court to fix the time of execution sooner than 1 year after
judgment, as in Iowa, there is little need of reprieve for
this purpose.

“Reprieve” as a release procedure—In a number of States
the term “reprieve” is not used in the sense we have used it
here—a mere postponement of execution—but to refer to a
form of temporary release. A similar form of release is
found in other States under the name of “furlough.” We
shall discuss it under that name.

REMISSION OF FINES AND FORFEITURES

Power to grant—Remission at common law means the act
by which a forfeiture or penalty is forgiven.23

In most States the constitutional provision conferring the
pardoning power upon the executive specifically includes
power to grant remission of fines and forfeitures; but even
without such express authorization, power to grant such
remissions is included in the power to pardon. The United
States Constitution does not expressly authorize the Presi-
dent to make such remissions, but refers only to “reprieves
and pardons,” yet this power of the President has always
been construed to extend to the remission of fines, penalties
and forfeitures accruing to the United States, for offenses
against. the United States.24

2" Okla. Stat. (1931) § 3170.
’1 Id. § 3192.

2’ Opinion of the Judges, 26 Okla. Cr. 41, 221 PM. 1041 (1924); Opinion -

of the Judges, 33 Okla. Cr. 354, 244 Pac. 50 (1926).
23 Bouv. Law Diet. p. 2871.

3“ Osborn v. U. 8., 91 U. S. 474, 478 (1875).

 

 

 

 

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227

Under this power, the Governor may remit a portion of a
fine?5 He may also relieve sureties on an appearance bond,
even though the forfeiture has been reduced to judgment.26
However, as has been said with respect to pardon gen—
erally,27 the executive cannot in the exercise of the pardon-
ing power interfere with vested rights. Thus the interest
or share due to an informer may not be remitted.28 The
same has been held as to fees due to officers of the court?9
On similar reasoning it is held that costs may not be re-
mitted.30 However, the fact that the fine, when collected,
was to be paid into the county treasury for the use of the
schools, has been held not to deprive the Governor of his
power to remit.31

Limitations on power to grant—In some States the Gov-
ernor’s power to remit fines and forfeitures is made subject
to greater restrict-ion than his power to grant other forms
of clemency; while in other States it is less restricted. In
Alabama, Texas, and West Virginia the Governor may re-
mit fines and forfeitures “in such cases and under such
regulations as may be prescribed by law,” while he may
grant pardons, reprieves, and commutations without any
express provision for regulation.32 On the other hand, in
Pennsylvania and Delaware the Governor’s power to grant

5’5 State v. Twitty, 4 Hawks 193 (N. C. 1825).

’3 Harbin V. State, 78 Iowa 263, 43 N. W. 210 (1889). In Nevada, power
to remit fines and forfeitures does not include power to discharge from
liability on a bail bond. Nev. Comp. Laws (1930) § 11578, added by Nev.
Stat. 1933, p. 187. In Maryland, where a recognizance has been forfeited,
the Governor may remit it in whole or in part providing the trial Judge shall
so recommend. Md. Ann. Code (Bagby, 1924) art. 41, § 20.

27 Ante, ch. IV.

28U. S. v. Harm's, 1 Abb. 110, Fed. Gas. No. 15,312 (1866); Rucker v.
Bee-worth, 7 J. J. Marsh, 645 (Ky. 1832); Shoop v. Comm., 3 Pa. 126
(1846); State v. Williams, 1 Nott. & McC. 26 (S. C. 1817); Rowe v. State,
2 Bay 565 (S. C. 1804). Contra: U. S. v. Thomasso'n, 1 Biss. 336, Fed. Gas.
No. 16,479 (1869). Md. Ann. Code (Bagby, 1924) art. 41, § 21.

”State v. Mooney, 74 N. C. 98 (1876) ; Cope v. Comm, 28 Pa. 297 (1857').

at’Holliday v. People, 10 I11. 214 (1848); Ryan v. State, 176 Ind. 281, 95
N. E. 561 (1911); State v. Mateer, 105 Iowa 66, 74 N. W. 912 (1898);
M-ikesell v. Board of Commissioners, 82 Kan. 502, 108 Pac. 829 (1910); In
re Boyd, 34 Kan. 570, 9 Pac. 240 (1886). Bishop, Criminal Law (6th ed.)
{3 910.

31 Baldwin v. Scoggin, 15 Ark. 427; State v. Simpson, 17 S. C. L. (1 Bailey)
378 (1830); Comm. v. Denn-iston, 9 Watts 142 (Pa. 1839). Cf. Shoop v.
Comm., 3 Pa. 126 (1846).

32Ala. Const, art V, § 124; Texas Const., art. IV, § 11, as amended
1936; W. Va. Const, art. VII, § 11. Under this authorization, the West
Virginia legislature has provided that remissions may be granted in the
following cases only: (a) when judgment has been rendered against any

230

sons have vested, these cannot be impaired by the Governor’s
action.41

Under the provision of the Federal Constitution that “no
money shall be drawn from the Treasury but in consequence
of appropriations made by law,” fines paid into the Federal
Treasury cannot be refunded, upon a pardon by the Presi-
dent, without authority of Congress.42

Remission of nonpoounz'ary penalties—“The word ‘for-
feiture’ has a broad and general significance, comprehending
many things, and is not restricted to forfeiture of money,
goods, and other property.” 43 Thus the power to remit for-
feitures has been held to include power to remit a forfeiture
of the right of suffrage}:4 The United States Supreme
Court has held that property forfeited because permitted to
be used to aid the Confederacy was restored by a general
pardon, as to that part which had accrued to the United

States.45
FURLOUGH

A practice found in 9 or 10 States is that of releasing
convicts temporarily for short periods of time, or even in-
definitely. This is called a furlough in most of the States
Where the practice is found (Arkansas, Louisiana, Texas),
although other terms are also used in some States, as “tem—
porary parole” (Alabama), “reprieve” (Idaho, Louisiana,
Minnesota, Wyoming), “leave of absence” (Washington),
“definite or indefinite suspension” (Mississippi) or “emer-
gency removal” (Wisconsin.)

By whatever name it is called, it has the characteristic of
having no statutory or constitutional authorization, but
rests upon custom merely, in every State except the emer-
gency removals in Wisconsinr"6 The legality of the prac-
tice has been questioned,47 but in the few cases where the
question has been raised, the courts have upheld it. The

‘1 Cook V. F-recholders of Middlcsew, 26 N. J. L. 326 (1857), afi’d., 27 N. J. L.
637 (1858) (money had been turned over to county) ; Dudley v. Washington
County, 39 Pa. Co. Ct. 377 (1911).

”Knote v. U. 8., 95 U. S. 152 (1877); Mitchell’s Fine, 16 Opinions Att‘y
Gen. 1 (1877).

“In re Court of Pardons, 97 N. J. Eq. 555, 564, 129 Atl. 624, 630 (1925).

“In re Court of Pardons, supra.

‘5 Armstrong’s Foundry, 6 Wall. 766 (U. S. 1868).

‘5 Wis. Laws 1921, c. 389, § 2.

‘7 See Stanley, “Pardons, Paroles and Reprieves,” an address delivered before
the Louisiana State Bar Assn, April 24, 1936.

 

 

 

 

231

Arkansas Supreme Court has held that an “indefinite fur-
lough” granted on certain conditions of maintaining good
behavior was valid as an exercise of the power to grant
commutation, even though the instrument used the phrase
“indefinite furlough” and not “commutation.” 48 The Texas
court, on the other hand, has held that a 90-day furlough
merely postpones the date when execution of sentence is
to begin and therefore has the attributes of a reprieve.49

Purposes.—Furloughs have been extensively used in some
of these States. In Louisiana, approximately 1,400 indefi—
nite reprieves were granted during the five years 1931—35.
In 1936, the Governor discontinued the practice and ordered
all prisoners out on furlough whose terms had not expired
to be returned to prison. In Texas, about 3,200 were
granted between January 1, 1923, and June 1, 1936.

The most usual purposes for which short, definite fur-
loughs are used are to allow the convict to obtain spe-
cial medical care not available at the prison, and to attend
funerals. Out of 45 “reprieves” granted in Minnesota be-
tween July 1, 1925, and December 15, 1936, 41 were granted
upon some such condition. In some of the southern States
they are frequently granted to permit convicts to return
home to harvest crops.

The Alabama pardon rules emphatically state that “tem-
porary paroles” will not be granted to make or gather crops,
nor for any reason except cases of “extreme emergency,”
and then only as a reward for good behavior. But in spite
of this stern warning, Alabama has in fact been especially
prolific in devising novel types of furloughs, granted for
novel or questionable reasons. Every Christmas from 200
to 250 prisoners are given a 10-day furlough for the holi-
days. Trusties working at the capitol building are allowed
to go at liberty for their week ends. As pernicious and
unsavory a practice as can be found in the country is Ala-
bama’s system of “temporary paroles.” These are short-
term releases, which may be as short as 2 days or as long
as a year, but are usually for 30 or 60 days. Although called
“temporary parole,” they do not rest upon the parole statute

‘3 Williams v. Brents, 171 Ark. 367, 284 S. W. 56 (1926).
”Ea: parte Black, 123 Tex. Cr. 472, 59 S. W. (2d) 828 (1933).

73115—39—v0L. m 16

 

232

at all. They are not handled by the parole board, but are
granted by the Governor directly, apparently by the same
vague reference to the clemency power as is generally true
of furloughs in other States. In practice, they are granted
almost wholly upon political considerations in the worst
sense of the word. A convict seeking such a “parole” must
hire a lawyer, preferably one with the proper political
connections. The lawyer’s services consist in approaching
a member of the legislature—almost any member will do—
who, in consideration of a “cut” of the lawyer’s fee (or a
promise of the lawyer’s political support), makes the neces-
sary deal with the Governor, i. e., promises to support cer-
tain of the Governor’s legislation in return for the granting
of the release. Since the parole must be renewed at short
intervals, the system offers opportunities for repeated mulct-
ing of the convict, limited only by his financial resources.
It is not surprising that this so—called “temporary parole”
is commonly spoken of in Alabama as “political parole.”
Indefinite furlouglzs.—Indefinite furloughs are used actu-
ally as a form of release. If the releasee is not discovered
to have violated the conditions regarding good behavior,
which are usually attached, he is never returned to serve
out his sentence. In some States, such furloughs are
granted even before the person ever enters the prison. They
differ little in practical effect from conditional pardons.
Furloughs are sometimes used to relieve overcrowded pris-
ons where other release procedures are not available. In
Arkansas and Louisiana, the furlough system seems to have
grown up partly as a result of restrictions on parole eligi-
bility. The Louisiana indeterminate sentence law requires
service of two-thirds of the maximum sentence before a
convict is eligible for parole, but under the good-time law,
a prisoner’s maximum sentence, less deductions for good
time, may expire before two-thirds of the sentence has been
served. Therefore, indefinite reprieves were granted in
meritorious cases to allow conditional release prior to the
time for absolute release under the good-time law. In Ar-
kansas, the present parole practice is not to allow the pris-
oner to apply for parole until one-third of the sentence has
been served. But this rule is self-imposed by the board,
and may be changed. “7e believe it would be much better

 

 

 

 

 

233

to liberalize the parole law and release such prisoners on
parole instead of on indefinite furlough.

We have here another example of what we have pointed
out before: That restrictions on parole eligibility often result
merely in the release of prisoners on some type of clemency,
with less supervision than they would have under parole.

Lack of supervision—The reason for saying that it would
be better to release convicts on parole rather than on fur-
lough is that there is more likely to be some sort of super-
vision of parolees than of persons at liberty on furlough.
Most States now have some sort of parole supervision, but
nowhere are there any officers specially charged with the
duty of checking the actions of convicts on furlough. It
follows that the likelihood of the furlough’s being revoked
for violation of conditions is slight. In Mississippi, out of
318 indefinite suspensions granted in the fiscal years 1933-35,
only three violators were returned to the penitentiary.50
Unpublished statistics for the year 1935—36 indicate that of
264 suspensions granted, only 7 violators had been returned.
Yet on November 13, 1936, there were 178 definite suspension
violators who had not been returned to prison. This indi-
cates that violations rarely result in revocation, and that
revocation rarely results in re—imprisonment. From the
viewpoint of public protection, even an inadequate and un-
der-manned parole system is definitely preferable to release
on furlough.

MISCELLANEOUS RELEASE PROCEDURES

Merit commutation in Missoum’.—There has been devel-
oped at the Missouri prison since 1918 a combination of the
principle of the good-time law and the principle of com-
mutation know as a merit commutation. This form of
release has become so popular that by the biennium 1923-24
over 80 percent of all releases from the Missouri peniten-
tiary were by merit commutation. Although termed a com-
mutation, it is really a form of good-time law, and will be
considered in that connection.51

”Biennial Report of Superintendent of Miss. State Penitentiary, 1933—35,
pp. 46, 51.
51 See Vol. IV, chapter XII.

234

Empimtz’on pardon in 0klahoma.—A curious practice has
grown up in Oklahoma by which each prisoner discharged
from the penitentiary gets an arbitrary reduction of his
sentence, amounting to 30 days in the case of a first offender
and 7 days in the case of a “second offender” (which term
seems to apply-to all repeaters). This is known as an “ex-
piration pardon,” although as used today it is not a pardon
at all. It is really a form of good—time allowance, and will
be discussed under that heading.”

Ten-day pardons in Wisconsin—Since 1871, the Governor
of Wisconsin has had authority by statute to grant special
pardons 10 days prior to the time when the convict would
otherwise be discharged.53 The statutory procedure gov-
erning applications does not apply to such pardons, nor
have any rules or regulations concerning them been promul-
gated. The practice of the executive office is to require
nothing but a verifying statement of the reasons and a
notification to the trial judge and district attorney.

CONCLUSION

The most significant thing revealed by our examination
of the various minor forms of clemency is the extent to
which they are used to supplement or substitute for parole.

Conditional pardon and furlough, we have seen, are used
to permit the conditional release of convicts not eligible for
parole. Commutation is commonly used to make convicts
eligible for parole who otherwise would either never be
eligible or not be eligible for some years to come. Reprieve
and remission of fines and forfeitures are not really release
procedures at all, and have been treated in this chapter
merely because they are forms of executive clemency found
in every State, even though they do not ordinarily operate
to release from prison.

The lesson to be drawn seems to be that rigid eligibility
restrictions in the parole laws often result not in keeping
convicts in prison, as is assumed, but in causing them to
be released by some other procedure usually less desirable
and more dangerous to the public than parole. “7e have

52Ibid.
“Wis. Laws 1871, ch. 56.

 

235

here an example of how a “hard boiled” attitude toward
parole often defeats itself. By restricting parole releases,
we merely cause prisoners to be released on some less satis-
factory basis, with less supervision and with less—often no—
possibility of rearresting and recommitting them upon fur-
ther wrongdoing.

The first answer, therefore, is to liberalize the parole laws.
Pending that, we should say that if some of the devices
discussed in this chapter must be used, by far the least
objectionable is that of commuting the sentence so as to
permit release on parole—but not so as to require absolute
discharge. Under minimum and maximum sentence laws,
where parole is permissible only after serving the mini-
mum term, this can be done by commuting the minimum but
not the maximum sentence. This means of liberalizing the
parole law is always available, for the power to commute
exists in every State, and where the parole restrictions
seem too strict, it is far better to commute sentences to
enable convicts to be released on parole than to release them
on some other and less satisfactory basis.

 

CHAPTER VIII
AMNESTY

An amnesty or general pardon is rarely used as a release
procedure in the United States. Nevertheless a survey of
the law of pardon and of pardon procedures should not
overlook the origins, historical development, and influences
of amnesty as a release procedure. This chapter is devoted
to a discussiOn of the historical development of the legal
doctrines and administrative practices of amnesty.

Terminology—Although amnesty is a pardon release pro-
cedure most common to the countries of continental Europe,
it is not unknown to the law of England and America. Eng-
land’s last “amnesty” is officially named “An act for the
king’s most gracious general and free pardon.” 1 An am-
nesty is a general pardon, an act pertaining to a multitude,
without consideration of the special circumstances of in-
dividual cases.

Origin of amnesty.——Amnesties have been known in an-
tiquity. All of them—the amnesty of Solon 2 and the am-
nesty of the Thirty 3 (403 B. C.), the amnesties of Samos 4
(411 B. C.), and the Megara Amnesty 5 (424 B. C.), as far as
we can conjecture, had clauses exempting certain groups
from the benefit of the amnesty. The exceptions rest upon
religious rather than on practical reasons. The man who
had shed blood 6 could not be pardoned by men. Absolu-
tion from this stain belonged to the sphere of religious
purification and somewhat, too, to the pardoning consent of
the relatives. - .

1Stat.20.Geo.II,ch.51 and 52 (1747).

2 Plutarch, Solon 19.

3Aristoteles, Ath. Politeia 39.

4 Thucydides 8, 73.

51d. at 4, 74.

6All the exceptions quoted in both amnesties pertain directly or indirectly
to unjustified killing.

(237)

238

The term has only been used in later times. The older
authors applied the expression “not remember anything
angrily.”7 But Plutarch8 speaks of a “vote. of amnesty,”
and Cicero 9 has explained the later meaning of the term in
a famous passage. We see that real and absolute oblivion
was meant and that the Latin translations, quoted by Cor-
nelius Nepos,10 Vellejus Paterculus 11 and Valerius Maxi-
mus 12 convey the same idea.

We know that the Greek amnesties under Solon and
Trasybul were proclaimed to restore the social peace in great
political and economic crises of Athens.

Scope of subject matter. Sometimes the preamble of a
law of amnesty is quite plain about its aim; usually the
whole situation accounts for the collective act of leniency.
When Charles II of England returned to his country he was,
according to his own later words, “permitted to come
here.” 13 His promise of amnesty given in the famous decla-
ration of Breda was therefore nothing but a symptom of his
own insecurity 1“ and it had to be expected that he would
try to avoid his promises as soon as his power had grown
stronger.

Napoleon I granted a general amnesty on March 13, 1815,
after having escaped from the Isle of Elba.15 He was fight-
ing for his head, and it is understandable that he used all
means to win popularity. The amnesty was one of his
measures of mobilization.

In the last great general pardon issued in England, the
reasons are enumerated in detail. It runs: “The King’s

 

7Thalheim in Pauly-Wissowa, Realencyclopaedie (Stuttgart, 1894), vol. I,
p. 1870.

8Plutarch, Praec. Pol. 17.

9 Cicero, Phillipz‘ka I, 1.

1° Trasybul 3, “Lex oblivionis.”

11 Cap. 20, “Decretum oblivionis.”

12IV, 1, 4, “plebiscitum ne qua preateritarum rerum mentio fiat.”

13 Quoted by Airy, Charles II (New York, 1904) p. 150.

14 “Had the Restoration been the work of a victorious royalist movement,
the passions aroused would have been quenched, the accumulated injuries of
years avenged in torrents of blood. But it was primarily the re-establishment
of parliamentary government; and thus it was that the Declaration granted
a general pardon to all who by any open act, returned to loyalty and obedi-
ence within forty days, excepting only such persons as shall hereafter be
excepted by Parliament.” Id. at 151.

1”There were only 13 people excepted, among them Talleyrand.

 

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239

Most Excellent Majesty having already shewed his royal
Inclination 1‘0 Mercy, by many particular Instances of
Grace to such as had tendered themselves obnoxious to the
Laws, and subject to the highest Penalties, by being con-
cerning in the late unnatural Rebellion; and His Majesty,
being desirious of quieting the Minds of his Subjects in
general, hath, upon mature deliberation, resolved and deter-
mined to grant his general and free pardon in a. large and
bountiful manner; not doubting but that, however it may be
received by those who are obstinately bent on the ruin of
their Country, it will raise a due Sense of Gratitude in all
who have been artfully misled into treasonable Practices
against his Person and Government, and preserve them and
others from standing in need of the like Mercy in the future,
when such Clemency may not be so expedient for the pub-
lick Welfare, as it would be agreeable to His Majesty’s In-
clinations; and hoping that all his Subjects, by this Act of
grace, will be induced henceforth more carefully to observe
the Laws, and live in a loyal and dutiful Obedience to His
Majesty, therefore His Majesty is well pleased and con-
tented that it be enacted * * *.” 1"

This amnesty of 1747 marked the repression of the second
Jacobite rebellion. It is noticeable that an undertone of
pessimism runs through the preamble. The author of the
amnesty appears to be satisfied in having divided and sep-
arated his foes.

In two proclamations, dated December 8, 1863, and
March 26, 1864,17 Abraham Lincoln had offered pardon and
specified the exceptions which he wanted to be made. In
the proclamation of 1863, he stated briefly the reasons:
“Whereas,” he said, “a rebellion now exists, whereby the
loyal State governments of several States have for a long
time been subverted, and many persons have committed and
are now guilty, of treason against the United States and
* * * Whereas it is now desired by some persons hereto-
fore engaged in said rebellion to resume their allegiance to
the United States, and to reinaugurate loyal State govern-
ments within and for their respective States; therefore I,

16 Stat. 20, Geo. II, ch. 52, in The Statutes at Large (1811) vol. V, p. 590.
1'7 Facsimilies of both proclamations are to be found in J. G. Randall, The
Civil War and Reconstruction (Boston, 1937), pp. 696, 697.

240

Abraham Lincoln, President of the United States do pro-
claim, declare and make known * * *,” 18

This general pardon, which restored all rights of prop- _ '

erty, except as to slaves, demanded the taking and subscrib—
ing of a new oath of allegiance. It had a preventive pur-
pose, but we may doubt whether it was very effective. Ac-
ceptance of the pardon would expose one to the revenge of
the party one had quitted and which could possibly be vic-
torious. General pardons of this kind, granted at such a
time and demanding the signing of an incriminating docu~
ment cannot and will not work, before a decisive military
advantage has been won.

It may be added further that the group excluded from
the amnesty was too large, but the question of the amnesty
exceptions shall be discussed shortly.

It is a pity that a legal and political history of all the
pardon proclamations under President Lincoln and Presi-
dent Andrew Johnson has never been written.19 The great
lesson taught to future amnesty—givers by the many procla-
mations is that it is the part of wisdom to grant a full
“general” pardon at the right moment instead of excluding
certain groups, insisting on exceptions and conditional
clauses. The proclamation issued by President Johnson of
September 7, 1867, is quite plain in this respect. “ * * *
Whereas,” it says, “a retaliatory or vindictive policy, at-
tended by unnecessary disqualifications, pains, penalties,
confiscations, and disfranchisements, now, as always, could
only tend to hinder reconciliation among the people and
national restoration, while it must seriously embarrass, ob-
struct, and repress popular energies and national industry
and enterprise. * * * ” 20

But this was still a conditional pardon. He did not pro-
claim a general pardon “unconditionally and without reser-
vation to all and to every person who directly or indirectly
participated in the insurrection or rebellion,” until Christ-

mLincoln seems to have been aware of these unwise provisions. “Prisoners
excluded from the amnesty offered,” he said in the Proclamation of 1864,
“may apply to the President for clemency "‘ * * and their application
will receive due consideration.”

19 Some historical material is mentioned by Randall, The Civil War and
Reconstruction (Boston, 1937), p. 711.

30U. S. Stat. at Large, vol. 15, p. 700.

 

 

 

 

241

mas day of 1868.21 When President Johnson called his
previous conditions and reservations “prudential,” he was.
more right in declaring that he had now “wisely and justly”
renounced them.

We have mentioned in a previous chapter the habit of the
old English kings of granting pardons to all who decided
to take up arms in his favor. The World War saW a.
return to this ancient mobilization measure. Germany, as
well as France, inflamed with frequent amnesties the war—
readiness of the population. The first of these amnesties
applied to individuals who were liable to military service.
The terrible economic distress of the later period favored
amnesties which included political and common crimes.22

Every revolution is brought about by acts and omissions
which are technically political crimes. The first step of a
victorious political revolution is, therefore, to grant their
adherents, first, security of judicial persecution, and sec-
ondly, something more positive: rewards. Such amnesties
were issued after the victory of the German socialist revo-
lution of November 1918,23 and after the appointment of
Hitler by President Hindenburg in March 1933.24 The first
amnesty pardoned every political crime, regardless of po-
litical tendency; the amnesty of 1933 was more selective.
It pardoned all sorts of crimes, including murder, which
had been committed “in the struggle for the national revo-
lution of the German people, to its preparation or in the
fight for the German soil.” This amnesty covered National
Socialist adherents exclusively.

 

21 The preamble merits being quoted: “* * * And whereas the authority
of the Federal Government having been re-established in all the States and
Territories within the jurisdiction of the United States, it is believed
that such prudential reservations and exceptions as at the dates of said
several proclamations were deemed necessary and proper may now be wisely
and justly relinquished, and that a universal amnesty and pardon for partici-
pation in said rebellion extended to all who have borne any part therein tend
to secure permanent peace, order, and prosperity throughout the land, and
to renew and fully restore confidence and fraternal feeling among the whole
people and their respect for and attachment to the National Government,
designed by its patriotic founders for the general good.” (U. S. Stat. at
Large. vol. 15, p. 711.)

22Uhle, Die Amnestz‘c Nach Alten und Neuem Gnadenrecht (Breslau,
1935), p. 23.

23Amnesty of November 12, 1918. For text, see Kuss, Die Materielle Prob-
lematik der politischen Reichsamnestieen (Breslau, 1934) p. 13.

2‘ Amnesty of March 21, 1933. For text, see Kuss, op. cit. supra, at 69. The
constitutionality of this decree seems dubious.

242

Amnesties are good barometers of social and political
tensions. When such measures heap up and when their
rules are far-reaching there is storm in the atmosphere. In
pre-war times the German amnesties, for example, as was
true also of the French or the Italian, extended to minor
offenses. They were granted at the beginning of an acces-
sion, at the birth of a successor to the throne, etc. They have
been called acts of a patriarchic benevolence and promoted
the popularity of the dynasty.25 Certainly they were more
than that, and had a restricted but definite political aim. In
granting a general pardon for all the oifenses of lesé majesté
the king performed an act of personal generosity and politi«
cal wisdom.

In past times there were still other reasons for granting
amnesties. Thus in 1466, King Louis XI of France, want-
ing to counteract the depopulation of the City of Paris
caused by an epidemic, proclaimed an amnesty. The
remedy was more dangerous than the evil, remarks an old
author.26

A century later some provinces of France rebelled. The
repression was extremely cruel. The poor inhabitants took
refuge in emigration and left the country in masses. To
stop the emigration Henry II of France granted a general
pardon.27 Many rulers did not handle the instrument of
amnesty so sagaciously.

Legal nature of amnesty—In an attempt to classify the
institution of amnesty, we may state that it belongs to the
upper concept of pardon. It is a plurality of pardoning
acts, and its main feature is that the amnesty determines
the conditions and the extent of the pardon by groups of
persons or groups of crimes or by certain general attitudes
of the individuals concerned. There is a pronounced pre-
dilection to lay stress on the motive. Even the exceptions
and limitations in an amnesty are generally given by groups,
regardless of the merits of the single case.

25Kuss, op. cit. supra, at 10, 11.

23 “In 1466, an epidemic disease produced a considerable depopulation of the
capital. This king (Louis XI) wanted to replenish the city and therefore
proclaimed a general pardon for all sorts of crime, offenses of high-treason
excepted, even to individuals who had been repeaters and invited them to
come back and to dwell in Paris.” M. B. Saint-Edme, Dict-ionnaire de la
Pénalité (Paris, 1824) vol. 1, p. 313.

27 St. Edme, op. cit. supra, vol. I. pp. 313—214.

243

Amnesty belongs as well to the sphere of criminal as of
constitutional law. The more amnesties are granted by
acts of doubtful constitutional validity or mere preparatory
proclamations, the weaker is their foundation and their
practical value. The Declaration of Breda, issued by
Charles II of England, was such a “promise”, which was
only half kept; the Charter of Louis XVIII of 1814 was
such an act; the “counter—charter” of Napoleon, invading
France in the same year, had the additional deficiency of
being issued by a de facto usurper, whose constitutional
status was dependent on his military success.

Sometimes amnesty-granting definitions are included in
international agreements, mainly peace treaties. A We find
such stipulations in the Treaty of Versailles,28 the Treaty of
St. Germains,” and the Treaty of Trianon.30 The problem
whether such clauses lose their legal validity when the peace
treaty itself is no longer enforced may confront jurispru-
dence some day.

The amnesty-granting power—There is little doubt that
the first amnesty-like agreements came about in primitive
societies by common consent and a kind of intertribal peace
treaty. The Eklesis (éKKNyaLs), a treaty of forgiving and
forgetting which we meet after the slaughter of the suitors
for the hand of Odysseus and which was meant to avert
a civil war on the peaceful island of Ithaka,31 is to all
probability the prototype of the later constitutional insti-
tution.

The power to grant amnesty may or may not be vested in
the same agency as the power to grant individual pardons.
In imperial Rome, the emperor could grant a general am-
nesty, or as it was called, an “indulgentia generalis,” or
“beneficium generale.” 32 In Republican Rome such broad

28Art. 78 (2): “A11 judgments given by German courts since August 3,
1914, against Alsace-Lorrainers for political crimes or misdemeanors shall
be regarded as null and void.”

29Art. 45 (2): “All decisions rendered for political crimes or ofienses
since August 4, 1914, by the judicial authorities of the former Austro-Hun-
garian monarchy against Italian nationals, including persons who obtain
Italian nationality, shall be annulled.”

8°Art. 40 (identical text as above).

31 Odyss. XXIV, 484.

asCod. IX, 22, 9: “Criminaliter coeptum interventu indulgegntiae s0pitum
est.” Dig. XXVIII, 3, 6, 12: “si quis damnatus capite indulgentia principis
sit constitutus.”

244

power was unknown.33 Three great nations have given their
chief executives this power of the Caesars—England, the
United States, and Italy. In France, on the other hand,
the president can grant individual pardons, but amnesties
can be granted only by legislative act.

England—In England Parliament and the Crown each
have power to grant both individual and general pardons.

Since Parliament can do anything “except making a
woman a man, or a man a woman,” 34 there has never been
any question of its power to grant pardons, individual or
general. Of course a bill of this kind would require the
king’s assent, the same as any other act of Parliament. But
for the king to refuse to sign any act of Parliament would be
a very serious step, which has not been taken for the last
230 yearsf”5 The sudden outbreak of a war or some other
unforeseen emergency is the only situation suggested by
Maitland 3“ where the king’s ministers might advise him to
refuse consent without general condemnation.

Without pursuing this delicate topic, we may mention two
occurrences in English constitutional history where, during
the reign of an insane king, the royal assent was fictitiously
given to a bill of regency by commission under the great
seal. In the first case, in 1788, before the bill was passed
the king recovered, and no further proceedings were neces—
sary. But in 1810, “the king became incapable, this time
for good and all.” “The Houses agreed that the Parliament
should be opened by commission under the Great Seal, and
the Chancellor aflixed it. A regency bill was introduced; it
was carried through both houses and a. fictitious royal assent
was given to it by commission under the Great Seal. The
commission asserted that it was issued by the king himself,
by and with the advice of the lords spiritual and temporal
and commons in parliament assembled.” 37 In case of emer-

33 There was no other amnesty-like measure but a general quashing of pending
prosecutions. The customary legal formula was: “Ne cui fraudi esto.” See
Livy III, 54, 15, and Sueton, Caesar 57.

34Quoted from DeLolme Constitution of England, 17 Am. Law Reg. 520
(1869).

35 In 1707, Scotch Militia Bill. F. W. Maitland, The Constitutional History
of aggriizand (Cambridge, 1931), p. 423.

l .

37 Id. at 346.

245

gency and an “incapable” king this precedent could be fol:
lowed with an act of amnesty.

While the power of Parliament to grant pardon by legis-
lative act is clear, it is equally clear that the king may
grant pardons. In practice, a sort of compromise procedure
has grown up during recent centuries. A legislative pardon
has broader legal effects in certain respects than one granted
by the Crown,38 and the practice is to bring a bill before
Parliament. It contains the royal assent already granted.

Since it “originally proceeds from the crown,” 39 an act of
grace “is received with peculiar marks of respect, is read
only once by the Lords and once by the Commons, and must-
be either rejected altogether or accepted as it stands.” Mac—
aulay has, in his H istory of England, related these peculiar
marks of respect, with which an act of grace is received by,
the Houses of Parliament. “Each house stands up uncov-
ered while the act of grace is read.” 40 The clerk veils the
sanction of both houses in a pronouncement of gratitude of
the subjects and utters these words: Les prelats, seigneu-rs
et commons, en oe present pavrlement assemblees, au nom de
touts nous autres subjects rememz'ent tres humblement ootre
majeste, et pm'ent a Dieu nous donner en sante bonne rvie et
Zongu (The prelates, lords and commons, in this present

33“It cannot be questioned that a general pardon by act of Parliament,
applicable to whole classes of the community, is more beneficial than a special
pardon by the king’s charter to a particular person of one of those classes,
or that it has always been so regarded. The courts must take judicial notice
of such a general pardon when it is full and unqualified, as of any other
public act of Parliament; and a man is not bound to plead it, neither can
he lose the benefit of it by his own laches or negligence, as he may of the
king's charter of pardon. A pardon by act of Parliament usually, though
not necessarily or invariably, contains clauses restoring the blood, when
corrupted, and taking away all the other consequences of attainder, if ap-
plicable to any persons attained, which the king’s charter of pardon could
not do; and where it is full and absolute, or without qualification or excep-
tion, the courts are obliged to take notice of it, even though the party
waives it or does not plead it. The king’s charter of pardon, on the contrary,
must be specially pleaded, and that at a proper time; and if not so pleaded,
the benefit of it is thereby waived and lost. So if a pardon by act of Parlia-
ment contains exceptions of otfences or persons, the court cannot take notice
of it, neither can the party have the benefit of it, unless by pleading he shows
that he is not one of the persons excepted, though commonly advantage is
given to the offender by the act itself without pleading. For these reasons a
pardon by act of Parliament is more beneficial and desirable than a pardon
by the king’s charter; and hence the occasion of pardons by act of Parlia-
ment.” 17 Am. Law Reg. 520, 521 (1869).

39Blackstone, Commentaries, vol. I, p. 184.

40Quoted in 17 Am. Law Reg. 522 (1869).

246

parliament assembled, in the name of all your other subjects,
most humbly thank your majesty, and pray to God to grant
you in health and wealth long to live) .41 The granting of
a general pardon under and by acts of Parliament indicate,
therefore, mostly a proceeding, which the king selected to
establish the functioning of his royal privilege on a firm
ground, and in conformity with public opinion.

An elaborate enumeration of the English general pardons
from the year 1376 to the time of the American Revolution
is given in the American Law Register of the year 1869. In
every one of these acts, a general and free pardon is granted
(although they contain exceptions and conditions), and “in
every one of them this pardon is recognized as proceeding
from the king in the exercise of his royal prerogative. The
participation of Parliament in the act is merely in confir-
mation of the royal grace and favor so as to make it more
effectual and beneficial * * * than the king’s charter
of pardon.” 42

The United States.——The Constitution of the United
States 43 provides that the President “shall have power to
grant reprieves and pardons for offenses against the United
States except in cases of impeachment.” A similar power
is granted in State constitutions to the Governor or to a
board.“ The question therefore is presented whether or not
the power to grant pardons includes the right to proclaim
general pardons or amnesties.

In 1862, Congress, in an act entitled “An act to suppress
insurrection, to punish treason and rebellion, to seize and
confiscate the property of rebels, and for other purposes,”
provided as follows:

SEC. 13. And be it further enacted that the President is here-
by authorized, at any time hereafter, by proclamation, to ex-
tend to persons who may have participated in the existing rebel-
lion in any state or part thereof, pardon and amnesty, with

such exceptions and at such time and on such conditions as he
may deem expedient for the public welfare. ‘5

.flBlackstone, Commentaries, vol. I, p. 184.

“17 Am. Law Reg. 523, 525 (1869).

“Art. 2, par. 2.

“See vol. I, passim.

‘5 Pub. Acts, 37th Congress, second session, ch. 195; U. S. Stat. at Large,
vol. 12, p. 592.

247

This act has been later called a “suggestion of pardon by.
the Congress,” ‘6 but we camiot help noticing that the act-
does not suggest anything but “authorizes” the President to
issue a proclamation of general pardon. It is one of the
very rare occasions that we meet in an American law the
term amnesty.

The further developments are told in the decision of the
Supreme Court as follows:

The suggestion of pardon by the Congress * * * remained
unacted on for more than a year. At length however, on the
8th of December 1863,‘7 the President issued a proclamation, in
which he referred to that act, and offered a full pardon, with
restoration of all rights of property, except as to- slaves and
property in which rights of third persons had intervened, to all,
with some exceptions, who, having been engaged in the rebellion
as actual participants, or as aiders or abéttors, would take and
keep inviolate a prescribed oath.‘3

In his message to the Congress, transmitted on Decem-
ber 8, 1863, President Lincoln had laid stress on the point
that “the Constitution authorizes the Executive to grant or
withhold pardon at his own absolute discretion.” ‘9 But
this contention was apparently abandoned by his successor,
President Johnson. In January of 1867, Congress enacted
a bill repealing section 13 of the act of July 17, 1862.50
President Johnson permitted this bill to become law by
failing to return it within the 10 days prescribed by the
Constitution. If he had felt that the granting of pardons
was vested in the absolute discretion of the Executive, he
might- have vetoed the bill on the ground that it was un-
constitutional for invading that discretion.

Although a subject of hot debate during and immediately
after the Civil War, the power of the President to grant
amnesties is unanimously conceded today.51 Probably a

 

“United States v. Klein, 13 Wall. 128, 139 (1871). “The suggestion of
pardon by Congress, for such it was, rather than authority ‘ ‘ ‘.” The
decision does not explain why this suggestion was repealed by a law, which
took efl‘fect on January 19, 1867.

“U. S. Stat. at Large, vol. 13, p. 737.

‘8 United States v. Klein, supra, at p. 140.

49Ibid.

5° Pub. Acts, 39th Congress, second session, ch. 8.

““The President may also grant general amnesties to classes of indi-
viduals.” Charles K. Burdick, The Law of the American Constitution (New
York, 1933) p. 69. “The pardon may be granted by general proclamations.”

7 3115—39—v0L. III 17

 

248

similar powerwould be conceded to the Governor of the
States under the power to pardon, except where the con-
stitution limits the exercise of this power to cases “after
conviction.” Also, of course, where certain crimes such as
treason or cases of impeachment are excluded from the
Executive’s pardoning power they cannot be the subject of
amnesty any more than of individual clemency.“ Whether
or not Congress or the legislature has a similar power is
the subject of more doubt. We shall deal with it later.

Shortly after the Civil War another possibility was dis-
cussed and upheld by the Senate Judiciary Committee.
This committee concluded that the President has no power
to grant a general pardon or amnesty for ofl'enses against
the United States, by proclamation, without the authority
or assent of Congress.

The arguments in favor of this conclusion were: (1)
“That the power of general pardon by proclamation did not
exist, and was not claimed by any English sovereign, after
Great Britain had a constitution and a settled jurispru-
dence; ‘although it was frequently exercised under and by
acts of Parliament from the earliest years of the reign of
Elizabeth (1535), until after the American Revolution,’
from which ‘the clear conclusion is, that under the English
system of government, no power, either of amnesty or gen-
eral pardon’ sic ‘existed in the king;’ and, (2) That the
knowledge of these legal terms, amnesty and pardon, and
of their settled meaning and effect, must have existed in the
Constitutional Convention of 1787, and that the convention,
by not using the word amnesty in the article conferring
power on the President ‘to grant pardons,’ must be under-
stood as intending not to invest him with any power to
grant amnesty for offences against the United States.” 53

Thomas M. Cooley, A Treatise of the Constitutional Limitations (Boston,
1927) p. 218.

52 As shown in chapter IV, only the Constitution of the United States and
the constitutions of Connecticut, Illinois, Kansas, Montana, and Wash-
ington, contain no such limitations. In all other States, treason or cases of
impeachment or both are excluded from the governor’s pardoning power.

5317 Am. Law Reg. 518 (1869). The author of this paper says (p. 519)
that the word “amnesty” is not to be found in any statute, but we have

already emphasized that the act, approved July 17, 1862, speaks of “pardon
and amnesty.”

249

It is true that the exercise of the English king’s preroga-
tive of pardon has never been left “to his own absolute
discretion.” We have already touched upon these restric-
tions 54 and they are discussed at length in the American
Law Register of 1869. The king’s power can thus be con-
trolled and restrained by act of Parliament, and several
acts have been passed for this purpose. When it is pointed
out, however, that “no act of Parliament was ever passed
to restrain or to limit the king’s prerogative to grant a
general pardon,” 55 the explanation is very simple. Since
the king wrapped his action into the forms of a bill and an
act of Parliament, and thus subjected his action to check
by Parliament, antecedent limitations were unnecessary.
This might even have been one of the main reasons in select-
ing the device of legislation instead of a simple proclama-
tion.

English constitutional conditions cannot therefore decide
the issue in this country. There are no acts of attainder in
the United States which could be quashed only by a legis-
lative pardon. The power of the legislature is not unlim-
ited and sovereign in this country. No act of Parliament
can be unconstitutional—an act of Congress may be. We
are therefore compelled to the conclusion that the pardoning
power of the executive includes the power to grant an
amnesty, and that the President or a Governor invested
with this prerogative does not need the authority or the
assent of the Congress or legislature in the exercise of this
power. The English king, for special reasons, demanded
the cooperation of the Parliament, but he did not require it
theoretically.

Legislative power to grant amnesty—In chapter IV, the
conclusion is reached that the power granted to the chief
executive by the Federal and State constitutions to grant
clemency is not exclusive, and that the legislature has a con-
current power in that regard—dicta to the contrary notwith-
standing. But amnesty might perhaps be deemed something
different from a general form of pardon, and we are there-
fore compelled to return to the problem.

 

5‘ See 17 Am. Law Reg. 526 (1869).
55 17 Am. Law Reg. 527 (1869).

250

As a matter of fact, no legal distinction has ever bee
made by our courts between amnesty and individual pardon
and it is universally taken for granted that power to pardo
includes power to grant general pardons or amnesties
Many of the cases discussed in chapter IV involved genera
acts of legislation. In considering whether they invade
the pardoning power, no distinction is suggested in any 0
these cases between the power to pardon and the power t
proclaim an amnesty.

Nevertheless, one rather obvious distinction immediatel
suggests itself. Amnesties are ordinarily granted befo
prosecution and conviction, and to prevent such prosecu
tion. Since in most States the governor’s pardoning powe
may be exercised only “after conviction,” it is clear that thi
power cannot cover the real function of amnesty—to preven
conviction from ever occurring. Such amnesties can only 1)
granted by the legislature, if at all.

This brings us back to the question, is there any power i
the legislature to grant amnesty, or is the grant of the par
doning power meant to exhaust the subject of clemency

And the Supreme Court of the United States has said tha
Congress has power to enact laws of general amnesty. I
Brown v. Walker,“ the court construed the Federal im
munity statute involved in that case as being virtually a
act of “general amnesty.” “Although,” the court said, “th
Constitution vests in the President ‘power to grant repriev
and pardons for offences against the United States, excep
in cases of impeachment,’ this power has never been held t
take from Congress the power to pass acts of general am
nesty, and is ordinarily exercised only in cases of individ
uals after conviction,57 although, as was said by this cou
in Ea: part6 Garland, 4 Wall. 333, 380, ‘it extends to ever
ofl'ence known to the law, and may be exercised at any tim

5“ 161 U. S. 591 (1896).

‘7 W. W. Willoughby, Constitutional Law of the United States, vol. III. p
1492, says: “Though the Congress has thus no power to limit in any way th
exercise of the pardoning power by the President. it may itself exercise tha
power to a certain extent, if exercised prior to conviction." No reasons ar
seen which could support this viewpoint, and in Ea: parte Garland nothing 0
that sort is mentioned. The power of pardon may be exercised at any tim
before and after conviction, since it is expressly emphasized in Brown v
Walker, 161 U. S. 591, 601 (1896) that the “distinction between amnesty ant
pardon is of no practical importance.”

 

" 3"“ WW.

 

 

251

after its commission, either before legal proceedings are
taken, or during their pendency, or after conviction and
judgment.’ ” ‘8

Whether or not the United States Supreme Court is
“correct” in thus conceding Congress a concurrent power
with the President to grant amnesties may be considered
in the light of historical basis, doctrinal soundness under
the concept of separation of powers, and political expedi—
ence. Historical arguments are to be used cautiously; their
application sometimes offers serious obstacles. “Numerous
authorities,” the United States Supreme Court has said
elsewhere, “hold that the test of what may be done under
the power of pardon granted by our Constitution is what
the king of England could do by virtue of his pardoning
power at the time of the separation from that country.” ‘9
By this test it can also be argued that the powers of Par-
liament have been transferred to the legislatures of this
country. But the English dualism is the product of a
century-long development and hardly an ideal solution. Nor
is it entirely applicable to the American system of gov-
ernment. The powers of our chief executives are not the
same as those of the crown in England; nor are the powers
of our legislatures the same as those of Parliament. Par-
liament is supreme; but our legislatures are limited by
written constitutions.

The doctrine of separation of powers represents a gen-
eral principle, but it is not a rule of thumb. Before evalu-
ating the American rule with regard to the power of grant-
ing amnesties in the light of this doctrine or of considera-
tions of political expediency, it may be well to observe
the solutions which have been adopted in other countries.

European nationa—Fear of the friction which might re-
sult from vesting the power of amnesty in two independent

 

“Brown v. Walker, 161 U. S. 591, 601 (1896).

“The Laura, 114 U. S. 411, 416 (1885). The advantages of having the
pardon power vested in a single individual were stressed by Hamilton: “It is
not to be doubted that a single man of prudence and good sense is better
fitted, in delicate conjunctures, to balance the motives which may plead
for and against the remission of the punishment, than any numerous body
whatever.” The Federalist, No. 74. What would Hamilton have said of
the States where the pardoning power is vested in a board? Would he think
such a numerous body to be fit to balance motives, and to grant not only
a single pardon, but wholesale amnesties?

252

branches of the government has induced the Europeai
democracies, mainly France, to choose a different solution
Behind the French plan stands more than a century of po
litical life, enormous social changes and a rather frequen
use of the pacificatory measure of amnesty. France is th
most experienced country in the world in this respect.

In France every amnesty must be enacted by the regular
process of legislation. The president is entitled to gran
individual pardons, but the legislature alone can proclaim
an amnesty, after having deliberated it in both chambers.
The German Republic, short lived as it was (1918-33) ,
had adopted the same distinction. An amnesty covering the
Whole German empire, as distinguished from a single state,
demanded the extraordinary majority of two-thirds of all
members of the Reichstag, the same majority which was
needed for a change of the constitution. This requirement
had an unexpected but most salutary effect. As a two-thirds
majority was very difficult to obtain, an amnesty could
not easily be enacted except with the concurrence of several,
and usually opposing, parties. The amnesties, therefore,
usually had to include the political prisoners of both ex-
treme wings. It was “just” as far as we can apply this
idea and this term to a political measure. In any case it
contributed to lengthen the political strife and to give the
aggressors a feeling of security.

The German system of 1918—33 carried the French solu-
tion to an extreme. The French people have tried, in its
turbulent political history, the most diverse methods. As
long as the king concentrated in his hands both executive
and legislative powers, he proclaimed so-called Zettre d’abOv-
lition gene-mks. The most elaborate enumeration of these
old amnesties is given by Saint-Edme.60 After the revolu-
tion the privilege of pardon was abolished for a short
period, as we have seen,61 but the institution of amnesty was
retained and frequently exercised by the legislative assem-
blies.62 During the monarchical governments which fol-

“0 Diotionnaire de la Penalite (Paris, 1824), vol. I, pp. 311—317.

61 See p. 23.

”“The assemblies of the Revolution have proclaimed diverse amnesties
(Laws of Sept. 4, 1791, and of 4 Brumaire year IV). Since the Constituante
and the Convention were sovereign aSSemblies, they conceived this power in

253

lowed the revolution of 1789 and preceded the revolution of
1848, there was no fixed rule; but in practice the chief
executive exercised the right.63 By Article 55 of the consti-
tution of November 4, 1848, it was laid down that an am-
nesty could be granted only by special law. In contrast, the
senate-consulte of the 25th and the 30th of December 1852,
gave this privilege to the emperor. The last change oc-
curred in the present French constitution of February 25,
187 5, which runs: “The President of the Republic has the
right to grant pardon; amnesties cannot be granted but by
a law.” 6“

From 1875 to 1914, there were 11 amnesties, and Gar-
raud laments that amnesty tends to become a normal insti-
tution instead of a measure of exception.65 What would
Garraud have said if he had known that the German Re-
public was to proclaim more than 30 amnesties from 1918
to 1933? 66

The example given by the ancient absolute French kings
and by the two Napoleons has been followed lately by the
German dictatorship which started in 1933. An amnesty
can be granted at any stage of judicial proceedings by the
chancellor. This power surpasses by far the privileges
held by the former kaiser and the former German princes
who were not entitled to grant single or collective aboli-
tions, i. e., a quashing of pending proceedings.

This extremely extended power, exercised in numerous
cases and without any control or publicity, paralyzes the
work of the courts and creates a general feeling of inequal-
ity,67 since it favors only adherents of the ruling party.
There is another interesting result: criminal statistics are

this very sovereignty. During the Directory and the Consulate, several
amnesties were accorded by simple authority of the executive.” See Garraud,
Droit Pénal Franc-(1178 (Paris, 1914), pp. 624 et seq.‘

““The tests which gave the executive power privilege of pardon were
silent about the amnesty. After long theoretical discussions, there was a
conformity reached in the direction that the privilege of pardon included
naturally the right of amnesty." Ibid.

“Ibid.

“Ibid.

MUhle. Die Amnestio Nach Altem and Neuem G-nadenrecht (Bresiau,
1935), p. 24. Hitler, who combatted violently the amnesties of the Republic,
started with three amnesties in one year (1933). Id. at 27.

a When a murderer can be pardoned or amnestied by a simple stroke of
the pen, murder becomes a safe job, even an institution, meant to keep in
check all opponents.

254

not reliable any more. When further proceedings are
dropped by a secret order, no sentence is recorded and the
statistics present marvelous results of crime reduction.

Pleading and proofi—Amnesties do not apply to indi—
viduals, but to whole classes or groups of perpetrators.
A pardon specifically names the person to whom it is
granted and the punishable deed, and no room is left for
doubt. In contrast, the very structure of an amnesty tends
to involve generalities, groups of persons, groups of crimes,
groups of exceptions.68 Amnesty, therefore, needs a further
procedure for applying the general proposition to the
specific cases. What is a “political” crime? Was an indi—
vidual who can prove that he waged guerilla warfare a
soldier? 69 What is the meaning of crime “committed in
favor of the national resurrection”? 7°

Between amnesty and the person or act to which the
amnesty could be applied, an operation of interpretation
has to take place. The courts are not busy with decisions
concerning pardons, but every amnesty places on their
shoulders an enormous amount of interpretive work.

The perpetrator under English law must specially plead
the king’s charter of pardon and a king’s charter of amnesty.
It is different with a pardon or an amnesty granted by act
of Parliament. “For if the act be a public act, a man is not
bound to plead it, but the court must ea: 07730270 take notice
of it.” 71 Stress is not to be laid on the publicity, but on the
character of the act as being a law—an act of legislature.
The amnesty granted by the executive would have to be
pleaded; the amnesty accorded by law would not. The
United States Supreme Court held, however, that the Presi-
dent’s proclamation of amnesty following the Civil War was
a public proclamation having the force of public law, of
which the courts would take judicial notice."2

”See the unsatisfactory definition in Knote v. U. 8., 95 U. S. 149, 152.

“9“The amnesty act of 1867 does not apply to guerillas 'and other un-
licensed trespassers liable under the act of 1864 to pay double the value of
property unlawfully taken.” Haddia: v. Wilson, 3 Bush (Ky.), 523.

7° German amnesty of March 21, 1933. See Kuss, Die Matcrielle Problematik
der Politischen Reiohsamnests'een 1918/1933 (Breslau, 1934), p. 69.

“S. Stephen, Commentaries on the Laws of England (London, 1903), vol.
IV, p. 422.

‘3 Jenkins v. Collard, 145 U. S. 546 (1891) ; Armstrong 17. U. 8., 13 Wall.
154 (1871).

255

Necessity of acceptance—It is generally agreed that an
amnesty cannot be refused. The problem is not at all an
easy one. Amnesties pertain not only to people who have
been sentenced after due trial, but also to those against
whom no criminal proceedings have been had. They might
be innocent and they ought to be able to refuse an act of
pardon and to ask a trial and an acquittal.

The French theory has set forth that the persons who are
included in an amnesty cannot refuse its benefits. But as
has just been pointed out, these “benefits” are a grave injus-
tice to the innocent. The French legal theory says: “What
he attempts to obtain by trial, he obtained by the amnesty.” 73
This does not ring true at all, since there is a censiderable
difference in law and in fact of being acquitted or having
been amnestied.

The highest French court—there seems to be no English
or German decisions—has fluctuated in the last hundred
years.“ The opinion that the amnesty, being an act d’ordre
public at politigue cannot be rejected, has prevailed.75 The
best solution would be that laid down in a late French am-
nesty.m It says that individuals who had entered proceed-
ings before the proclamation to bring about a revision of
their sentence are not included in the amnesty. The rule
could be extended to any person who persisted in being
tried instead of being amnestied.

Scope—There has never been an amnesty without some
restrictions as to time, or to persons involved, or to the
crimes pardoned. Even the “forgetfulness” 0f the Amnes-
ties of Solon or the Thirty did not forget all the individuals
who had shed blood.

The great final amnesty of 1868, issued by President
Andrew Johnson, was unconditional and contained no res-
ervation, but it extended the general pardon only to “all
and every person who directly or indirectly participated in

'3 Garraud, Draft Pénal Francais, pp. 624 et seq.

74 A decision of the Cour de Cassation of November 25, 1826, conceded the
party the right not to invoke the amnesty. A decision of June 10, 1831,
arrived at the Opposite result and ordered the courts to apply the amnesty
in any case.

75 Cour de Cassation, January 22, 1870, quoted by Faustin Helie, Pratique
Criminelle des Cows et Tribunaua: (Paris, 1912) vol. II, p. 118.

“Article 2, Amnesty of June 19, 1909.

256

the insurrection or rebellion.” 7" Two amnesties of recent
times were probably the most extensive ever issued. The
first was the amnesty proclaimed on November 12, 1918, by
the German revolutionary council. It said: “Amnesty is
granted for political crimes.” Since the Criminal Code of
Germany did not know the concerpt of political crime and
since generally accepted interpretation could not be found
in criminal science, the courts had to go back to the treaties
of extradition, which contained similar phraseology. But
these treaties of extradition employed a comprehensive defi-
nition of “political” crime. They generally added the so-
called coherent crimes,78 deeds which are coherent or con-
nected with political crimes. They were mostly crimes of
common law committed to attain a political aim.

This amnesty covered every political activity, regardless
of the opinion of the persons involved. It pardoned right-
ists and leftists, adherents of every party color.

The second amnesty decidedly abandoned such a liberal
attitude. This is the amnesty granted by decree of Presi-
dent Hindenburg, March 21, 1933. This amnesty pardoned
everyone who had committed a crime “in the struggle for
the national resurrection of the German people, to its prep—
aration or in the struggle for the German soil.” 79 It in-
cluded every type of crime, from murder down. The term
“preparation” gave the amnesty retroactive validity back to
the troubled times following the revolution of 1918. By
the wording “struggle for the German soil” was meant the
revolutionary activity, fostered by the Nazi movement,
which spread from 1927 on through the agricultural prov-
inces of North and East Germany. Bombs were exploded,
resolutions were adopted to pay no taxes, a reign of terror-
ism was established and innumerable common crimes were
committed. As the refusal to pay taxes had nothing to do
with national resurrection, “the struggle for the German
soil” had to be included.

This amnesty covered only the adherents of the party
which granted it after having seized power. But it shel-

77 U. S. Stat. at Large, vol. 15, p. 711 (1869).

73 Sometimes called relative political crimes. See Lammasch, Das Recht der
Auslieferung Wegen POZit-ischer Verbrechen (Wein, 1884) pp. 53—55.

”For the text of this amnesty, see Kuss, Die Materielle Problematik der
Politischm Reichsamnesteen 1918/1983, p. 69.

257

tered even the gravest crime, if committed by this privileged
group.

The amnesty could be extended only to the day it was
issued. But the period of turbulence continued during the
whole year 1933 and longer. Many crimes were committed
and the courts could not but investigate some of them.
Therefore, wrapped in the middle of a general pardon,
which covered but small offenses, a new amnesty was
granted to the party followers the following year.80 It
pardoned any crime to which the perpetrator had been
impelled in the struggle for the national-socialist idea by
fervor.81 Again every type of crime was included; excluded
were all individuals who had shown fervor in the struggle
for opposing ideas.

There are amnesties of a more complex structure. Gen-
erally the crimes or special groups of crimes are indicated;
sometimes an objective condition is added.” Its best proto-
type is the new oath of allegiance to be taken after deeds of
high treason or rebellion.83

Amnesties generally state the period which they intend to
cover.84 The farthest point is the date of their proclama-
tion; it is much more difficult to fix their beginning. Prob-
lems arise in regard to the continued crime or the habitual
or professional crime, as far as these forms of criminality
have been the object of a special legislation.85 '

 

8°Amnesty of August 7, 1934, discussed by Uhle, Die Amnestic Nach Altem-
and Neucm Gnadenrecht, pp. 82 et seq.

81“Strattaten, zu denen sich der Taeter durch Uebereifer im Kampfe fuer
den National-Sozialistischen gedanken hat hinreissen lassen.” See Uhle, op.
cit. supra, p. 96.

83“A general pardon to all who by an open act returned to loyalty and
obedience within forty days." Declaration of Breda (1660).

83 See, for instance, the oath contained in the Proclamation of September 7,
1867: “I ‘ " ‘ do solemnly swear (or affirm) in the presence of Almighty
God, that I will henceforth faithfully support, protect and defend the Constitu-
tion of the United States, and the Union of the States thereunder; and that
I will in like manner abide by and faithfully support all laws and proclama-
tions which have been made during the late rebellion with reference to the
emancipation of slaves: So help me God.” U. S. Stat. at Large, vol. 15, p. 700.

34 The “Act of free and General Pardon, Indemnity, and Oblivion” (12 Chas.
II, c. 11) covered “All Treasons, MiSprisons of Treason, Murders, Felonies,
Offences, Crimes, Contempts, and Misdemeanors, counselled, commanded, acted
or done by virtue or Colour of any Authority or the existing Government of
England, Scotland and Ireland, and the Dominions and Territories thereto
belonging, since the 1st January 1637, before and unto the 24th day of June
1660.” Statutes at Large of England and Great Britain, (London, 1811)
vol. III, p. 5. Further, see 20 Geo. II, ch. 52.

85 For a discussion of these problems, see Uhle, op. cit. supra, at 91.

258

It might even be that difierent moments are established
for the pardon of a crime already tried, and cases where
there has not yet been a conviction.“ In this case the law
wants to punish crimes committed and not punished during
the time of its parliamentary discussion and perhaps com-
mitted in expectation of such an immunity.

Exempted types 0/ crime.—The Greek amnesties excepted
“murder or bloodshed 8' or being banished on account of
tyrannizing the people,” 83 or those who had shed blood.
The amnesty of Charles II (1660) mentions murders, but
thiswas not cold-blooded murder but every kind of killing
during the civil war, including the revolutionary juris-
diction.”

The general amnesty of George II grants a pardon which
excludes numerous crimes and a long list of individuals.”
The German amnesties of August 4, 1920, exclude crimes
against the person and arson.91 The German amnesty of
July 21, 1922, multiplies these exemptions 92 as is the case in
the amnesty of August 17, 1925.93 The amnesty of July 14,
1928, includes crimes against the person; they are not par-
doned but receive a considerable reduction of penalty,“ but
under strong political pressure these crimes were included
in the later amnesty of October 24, 1930.95 One exception
was left: the murder of a member of the Republican gov-
ernment.

93 In the German amnesty of 1932, the date of the abolition was shoved
back by 3 weeks (November 30, 1932), while crimes c0mmitted and tried up
to the proclamation of the amnesty (December 21, 1932) were included.

"Aristoteles, Ath. Politeia 39.

”Busolt, Die Gficch'ischen Staats and Rechtsaltertuemer, (Muenchen, 1892)
p. 133.

89Otherwise the bill of attainder against the regicides would not be under-
standable.

9°Stat. 20, Geo. II, ch. 51 and 52 (A. A. 1747).

mKuss, op. cit. supra, at 22.

93 Id., at 37.

931d" at 48. In this amnesty, robbery and crimes committed by means
of explosives to attain a political end are excluded. We remember that
the first Hitler amnesty brought these crimes into the orbit of his pardon
by laying stress on the subjective side of the problem and omitting objective
criteria: be pardoned all crimes committed during the struggle for the
German soil.

“Confinement was reduced to half of the original length and commuted
into prison, if penitentiary. See Kuss, op. cit. supra, at 55. The whole amnesty
was drawn in greatest haste and is full of contradictions.

9“This Amnesty of 1930 included all political murders committed before
September 1, 1924. Kass, op. cit. supra, at 56.

259

Most amnesties are granted to pardon acts of high treason
and rebellion, as the great American amnesty of December
25, 1868. After the successful revolution of 1933, and after
the death of President Hindenburg had given Chancellor
Hitler the Opportunity to combine the power of the Reichs-
president and the Chancellor, a great amnesty was pro-
claimed (August 7, 1934) , which we have already mentioned.
This amnesty excludes all acts of high treason and all of-
fenses committed by word or writing and directed against
the welfare of the empire,“ as far as they arose from a
frame of mind hostile to the people and commonwealth.

Emempted motivations—The introducing of political be-
lief as a criterion in a legal problem conveys us to the am-
nesties which do not exclude certain groups of men or
certain crimes distinguished by objective criteria, but
to exceptions which are based on purposes and intentions.
It is obvious that in these cases all means, however criminal
they may have been, vanish before the approved motive, for
example the victory of a political movement.

Until recently amnesties rested on objective criteria. The
exceptions were enumerated by crimes, by persons. A kind
of subjectivity was introduced by the selection of the polit-
ical crime, instead of quoting positive articles of the crim-
inal code. The political crime could only be established by
examining the purpose which the perpetrator aimed at.

After the Trojan horse of motive had been introduced
into the walls of amnesty practice, developments went
quickly downhill.

The German amnesty of August 4, 1920, was the first to
thin the mass of the crimes being “coherent” to high trea-
son by exempting all deeds committed “purely by brutality,
self-interest, or other nonpolitical motives.” '7

Another amnesty, of August 17, 1925, exempted all polit-
ical crimes committed merely “by mean motives.” ’3 Politi-
cal crimes committed “by self-interest” are met in the

”“Die nicht aus volks-oder staatsfeindlicher Gesinnung entsprungen sind."
Text, see Uhle, op. cit. supra, at 95. The Courts had to search this sentiment,
this forum internum, in order to concede the pardon.

"Kuss, 0p. cit. supra, at 22.

“Id. at 48.

260

amnesty of July 14, 1928.99 And finally some forms of high
treason did not come within the amnesty1 if, again, com-
mitted by self-interest.-

This intrusion of pure subjective conditions and restric-
tions into an old institution which is meant to “renew and
fully restore confidence and fraternal feeling among the
whole people” 2 transforms the measure of pacification into
a weapon of suppression and a license to one’s adherents.
These amnesties cannot but fail.

Exceptions on an objective Maia—All amnesties have
some kind of exceptions. Their technique is sometimes not
to name the exceptions, but to lay stress on the limited
sphere which they apply to. When they name “political
crimes” they exclude all other types of crime. When they
except crimes which should be punished with confinement
of not more than 6 months, the more serious crimes are not
affected. But all honest amnesties name plainly the groups
and the crimes they want to be exempted from their benefits.
Charles II granted a general pardon “excepting only such
persons as shall hereafter be excepted by Parliament.” 3
George II of England included in his “Most Gracious Gen-
eral and Free Pardon” 4 a nearly endless list of crimes and
persons, which were not to benefit by his measure. The
American amnesties previous to December 1868 made what
they called “prudential reservations.” The last German
amnesties excepted either the authors and leader of the en-
terprise,5 or recidivists,6 or criminal activities having dan-
gerous results." Exceptions can and have sometimes been

90Id. at 53. The crime had to be committed “preponderantly” by means of
self-interest. What an impossible task for a court to make these distinc-
tions.

11d. at 67. The German Supreme Court has decided that motives of self-
interest were not incompatible with “political motives.” Reichsgericht,
Entscheid‘ungen in Strafsachen, Vol. 66, p. 78.

_ aAmnesty-Proclamation of December 25, 1868.

8This exception took the form of “an act for the attainder of several per-
sons guilty of the horrid murder of His late Sacred Majesty King Charles the
First.” Stat. 12 Chas. II, ch. 30.

‘ Stat. 20 Geo. II, ch. 52.

5 Kuss, op. cit. supra, at 22. There has been an extended discussion about the
legal concept of “Urheber und Fuehrer des Uternehmens." See Reichsgericht,
E-ntscheidungen in Strafsachen, vol. 56, pp. 81 and 269.

6Kuss, op. cit. supra, at 49.

'Id. at 68.

261

made on the basis of time, so that a certain crime could be
prosecuted.8

When we regard amnesties as means of promoting social
peace, the exceptions made in the three forms—of exempted
crimes, of exempted motivations and of excluded groups of
persons—will always be their truest mark. It will be char-
acteristic whether these exemptions are clearly named or
hidden behind other formulations, mentioning perhaps only
the beneficiaries of the amnesty. Whenever the “general”
pardon pertains solely to the crimes of the conquerors of
the internal struggle, there is not the essence of amnesty
(oblivion) but remembrance and revenge.

T he efl'ects of amnesty—As will be set forth in chapter
IX, the problem of the effects of pardon is highly contro-
versial, especially in Anglo-American law. Accepting the
statement of the United States Supreme Court that the dis-
tinction between amnesty and pardon is one merely of philo-
logical rather than legal or practical importance,9 there is
no separate problem of the effect of an amnesty. An am-
nesty is the same in its effects as an individual pardon.

Under the theory of many European countries, however,
an amnesty is substantially different from individual par-
don, and may differ in its effects. It may be useful to
examine continental doctrines to see wherein they distin-
guish the nature and effects of an amnesty from those of
individual pardon.

The French amnesty doctrina—We have already men-
tioned that in French constitutional law the president has
power to pardon, but an amnesty can only be granted by an
act of the legislature. Far reaching differences of the ef-
fects produced by pardon or amnesty correspond to this

distinction.10

BId. at 45. In this amnesty (August 17, 1925), the time for going into
effect was drawn in such a way that a trial already pending against the com-
munist center could be carried on.

1’Brown v. Walker, 161 U. S. 591, 601 (1896).

1° The definition by Mr. Speed, in his opinion of May 1, 1865, quoted in
15 Fed. Gas. No. 8,128: “A ‘pardon’ is a remission of guilt; an ‘amnesty’ is
an act of oblivion or forgetfulness,” would add more to our knowledge it he
had developed the eflects, which he wants to be attributed to a remission of
guilt or to forgetfulness.

262

“The pardon,” says Garraud,11 “does not remove the con-
viction; it not only remains, but it continues to produce all
the eflects which the letter of pardon has not explicitly an-
nulled or which it was not able to annul * * *. When
the man who has been pardoned commits a new crime he is
a recidivist * * *. Finally, the pardon necessarily does
not interfere with the subsistence of the costs of compen-
sation awarded to the injured party and the costs of the
proceedings.”

Very diverse effects are attributed in the French doctrine
to the amnesty. “The amnesty extinguishes the public ac~
tion when it intervenes before the condemnation has become
irrevocable; it annuls the condemnation when it intervenes
later * * * the irrevocable condemnation is efiaced, so
that all the effects which it has produced are retroactively
annulled.

“The individuals who have been sentenced to confinement
are to be set at liberty immediately; fines and the costs of
the proceedings are to be restored” and whenever the amnes-
tied should commit a new crime, they would not be recidi-
vists.12 '

The highest courts of France have been constant in their
decisions on the effects of an amnesty: the crime is really
blotted out; it has never existed and it cannot be brought
up again.

This effect of a “general pardon” in contrast to the single
pardoning act is in accordance with the denomination and
the historical development of the institution. It would be
in accordance with wisdom as long as amnesties close the
prosecution of political crimes and crimes committed under
exceptional circumstances. It has been correctly said that
an amnesty presents a new will,13 a new start, which leaves

11 Garraud, Traité Théor-ique et Pratique, pp. 636 et seq.

1’ Id at 624 et seq.

13“La grace ne remet que la peine, elle maintient et le fait criminel et le
judgment; l’amnestie ne remet point, elle elface elle retourne vers le
passe et y détruit jusqu‘a la premiere trace du ma]; elle arréte le cours de la
justice, quand elle entrevient avant 1e judgment; elle eflace a la fois et le
fait criminel et le judgment de condamnation, quand elle entrevient apres.
‘ ‘ * La grace est a miséricorde qui respecte la 101 et lui laisse toute
sa liberte d’action: l’amnestie est une volonté nouvelle qui se substitue a
la volonté de la loi.” Dupre, Enoydopedie du Draft, Art. Amnestie, quoted in
the “Gegenwart,” (Leipzig, 1849) vol. III, p. 719.

263

everything past behind it. Things are regarded as undone,
because only sucha complete forgetfulness is able to pro-
duce and guarantee the great goal of pacification.

The I talian doctrine—Before the new Fascist Code of
1930 went into effect, the Italian doctrine closely followed
the French. The genuine amnesty is still considered as ex-
tinguishing the crime.“ But the old type of amnesty now
has a competitor, with a different name and different effect,
in the shape of the so-called “indulto” or indulgence. The
“indulto” is an act of pardon, issued by the king, covering
an undefined multitude of individuals, While the “grazia,”
the simple pardon, is limited to one person.

The “amnestia” annuls every vestige of the criminal deed,
exactly as in French jurisprudence. The “indulto” releases
merely from punishment. The criminal act subsists and
may be taken cognizance of upon indictment for a second
offense.

It behooves the government to select this or that form of
general pardon, according to the groups and the occasions
they are dealing with. Naturally, the narrower form of
general pardon cannot be applied before trial, and it is
obvious that in all cases of “indulto” the costs of the pro-
ceedings have to be paid. A kind of fine remains, which
might be extremely grevious sometimes to the “pardoned”
individual.

The German doctrine—The German doctrine does not
discriminate between pardon and amnesty, regarding their
effects. In comparison with the French or Italian practice,
German experience with political amnesties did not start
until after the overthrow of the old monarchies. Germany
lacked the experience of the French people, which handled
these measures of social pacification for more than a cen-
tury. Germany was a newcomer in this field, and consid-
ered an amnesty just as an enlarged pardon. It did not
see the difference between political offenses, which had partly
been created by new legislation, and the small thefts and

 

“ “L’amnistia estingue il reato, e, si vi e stata condanna, fa cessare
l’esecuzione della condanna e le pene accessorie.” Article 151, Codice Penale
of October 19, 1930. That is exactly the opinion of the Spanish jurisprudence.
See Calon, Derecho Penal, Parte General, (Barcelona, 1930) vol. I, p. 540.

73115—39—v0L. III 18

 

264

frauds they were accustomed to pardon on the emperor’s
birthday or the silver-wedding of a king.

That is the reason the German amnesty doctrine is at the
same time undeveloped and extremely strict. The amnes-
tied can be sentenced as a recidivist, fines and costs of pro-
ceedings are not repaid, and in a suit for slander the plain-
tiff, who has been called a traitor, etc., cannot claim that
the amnesty has made him a new man in the sense that all
past things are really nonexistent and forgotten.

This severity, or better, this under-development of doc-
trine has an unexpected effect. Since only the penalty is
remitted and the crime subsists unchanged and untouched,15
proceedings to quash the sentence are admissible. A start-
ing point is left to the innocent wherefrom he might try to
obtain a new trial. This right to judicial redress is not
allowed by the French or the Italian doctrine 1" since no
crime, in fact or in law, exists any more which could be
the object of review.

It is noteworthy that the German legislation, which fa-
vors the idea of deterrence and of harsh repression, has
lately abandoned this principle in two amnesties by which
the government wanted to patronize its followers.17

00mlusz'on.——There are good and many reasons to treat
pardon and amnesty (general pardon) differently with re-
gard to their effects and to follow the French precedent.

A single pardon can only remove the consequences of a
crime committed. The individual case might be pardonable
for diverse reasons. It is and remains a single case, and
the pardoning power is usually represented by a single per-
sonality who sometimes is and sometimes is not subjected
to some means of control. Pardon can remove the conse-
quences of a sentence; it cannot be stronger than the law.
The law has been infringed, and this fact cannot possibly
be annulled and annihilated by a_letter of pardon.

15 See the discussion of the German doctrine in Uhle, op. cit. supra, at 116
ct seq.

"It is. obviously. in the case of “indulto.”

1' Amnesty of June 23, 1933, and amnesty of October 16, 1934. In these
cases the legislation of the Hitler government has fully accepted the French
doctrine, energetically combatted and rerSed till then. See Uhle, op. cit.
supra, at 119.

265

An amnesty has larger aims.18 It has to restore the social
peace of a nation. After all the strife, the moment arrives
when the whole people wants rest and unity. This great
task can only be accomplished by a radical and complete
clearing out of all past and half-dead things. An amnesty
should, therefore, be a really new start, blotting out the
entire mass of old guilt. We need not emphasize that an
amnesty should be entire and loyal, and if possible, not
weakened morally by exemptions.

This doctrine can only be maintained as long as amnes-
ties do not exceed the boundaries of political crimes and
crimes committed under exceptional and excusable circum-
stances.

‘—

 

18 Moreover, there are structural diversities. The pardon has mostly to do
with facts which have been established and proved. In contrast, an amnesty
refers to cases which have not been tried or even not yet been investigated.
The two classes, those already convicted and those merely suspected, cannot
be treated diiferently, and the guilty ones, by practical reasons, have to par-
ticipate in the doubt beneficial to the untried group. When we consider that
the great majority of the amnestied have not been tried at all, the voices in
favor or the acceptance-theory in amnesties become at least understandable
The innocent ought not to be compelled to accept the stamp of guilt, inherent
in any act of pardon. The best solution would be the insertion of a special
rule in the act of amnesty providing that the man who believes innocently to
be involved in an act of pardon should ask a trial. This provision would not
be as indispensable in pure political amnesties as in general pardons, which
grant immunity for common offenses.

CHAPTER IX

THE EFFECT OF A PARDON
“A NEW MAN”

In a leading case, the Supreme Court of the United States
has said:

“A pardon reaches both the punishment prescribed for
the offense and the guilt of the offender * *- *. It re-
leases the punishment and blots out of existence the guilt
so that in the eye of the law the offender is as innocent as
if he had never committed the ofiense * * *. It removes
the penalties and disabilities and restores him to all his
civil rights. It makes him, as it were, a new man and gives
him a new credit and capacity.” 1 Elsewhere the same
Court speaks of the “confession of guilt implied by the
acceptance of a pardon.” 2

Put these two statements together and we have a para-
dox indeed—“a confession of guilt” implied from the accept-
ance of a document which makes him “as innocent as if he
had never committed the offense.”

The paradox is not limited to these two cases. Other
courts, both English and American, have repeated again
and again the pretty sentiment that a pardon is a remis-
sion of guilt as well as of the punishment; that it blots out
the offense, so that in the eyes of the law the offender is as
innocent as if he had never committed it, and makes him,
as it were, “a new man”3--and yet, when they dislike the

 

1E2 pa/rte Garland, 71 U. S. 333, 380 (1866). ‘

'Burdick v. U. 8., 236 U. S. 79, 90 (1915).

‘Illinois Central R. v. Boswo-rth, 133 U. S. 92, 103 (1890) ; Ea: parte Hunt,
10 Ark. 284, 288 (1850); People v. Hale, 64 Cal. App. 523, 533, 222 Pac.
148, 152 (1923) ; In re Emmans, 29 Cal. App. 121, 154 Pac. 619 (1915); In
re Executive Communication, 14 Fla. 318, 319 (1872); Dade Goal Co. v.
Haslett, 83 Ga. 549, 10 S. E. 435 (1889); U. 8'. v. Athens Armory, 35 Ga.
344, 363 (1868) ; Kelly v. State, 204 Ind. 612, 185 N. E. 453 (1933); Gowan
v. Prowse, 93 Ky. 156, 19 S. W. 407 (1892); State v. Baptiste, 26 La. Ann.
134, 137 (1874); Penobscot Bar v. Kimball, 64 Me. 140 (1875); Jones v.
Board of Registrars, 56 Miss. 766 (1879); People v. Court of SessiOns, 141

(267)

268

results which this sweeping generalization would require,
they have blithely ignored it and held instead that a par-
don implies not innocence but guilt.‘

Does a pardon imply gnaw—The two statements are not
only inconsistent with each other; each is also inconsistent
with other facts and judicial decisions. Take first the state-
ment that a pardon implies guilt. Pardons are granted for
a wide variety of reasons. One of these reasons is inno-
cence. While it is true that the vast majority of pardoned
convicts were in fact guilty, yet in some cases pardons have
been granted on the ground of innocence. In such cases it
is wholly untrue to say that pardon implies guilt.

Does- a. pardon “blot out” guilt?—Equally untrue is the
generalization that a pardon blots out guilt and makes the
ofiender in the eye of the law “as innocent as if he had never
committed the offense,” and “makes him, as it were, a new
man.” No one, for example, would say that a pardoned
criminal has a right of action against the State or its ofiicers
for false arrest or false imprisonment, although a (truly)
innocent person who had not been convicted might have,
under similar circumstances. Having been legally con-
victed, he cannot be said to have suffered any wrong, for a
pardon does not “blot out” the conviction or render it er-
roneous.ls Again, if a pardoned criminal is truly innocent
in the eyes of the law, the fact of conviction should not be
available to discredit his testimony as a witness or serve as
a ground for disbarment or removal from office or denial of
naturalization; nor should it be counted as a prior convic—
tion under habitual criminal statutes. Yet we shall find
throughout this chapter that when it comes to such collateral
effects of conviction as these, the eyes of the law are not

N. Y. 288, 294, 36 N. E. 386, 388 (1894); State v. Keith, 63 N. C. 140, 143
(1868) ; Knapp v. Thomas, 39 Ohio St. 377, 381 (1883) ; Wood v. Fitzgerald,
3 Ore. 568 (1870); Diehl v. Rodgers, 169 Pa. 316, 322, 32 At]. 424, 426
(1895) ; Carr v. State, 19 Tex. App. 635, 661 (1885) ; In re Conditional Dis-
charge of Convicts, 73 Vt. 414, 428, 51 At]. 10, 14 (1901); Edwards v.
Comm., 78 Va. 39, 41 (1883); 4 B1. Comm. 402; Bacon, Abridgment, vol.
6, p. 144; Stephen, Commentaries on the Laws of England (14th ed.), pp.
4, 422.

‘Manlove v. State, 153 Ind. 80, 53 N. E. 385 (1899); Cook v. Freeholde‘rs
of Middlesem, 26 N. J. L. 326, 333 (1857) ; Roberts v. State, 160 N. Y. 217,
54 N. E. 678 (1899).

5Roberts v. State, supra.

_ _ “Maggi...“ b-da'.

 

 

,..___..~.....g....,,...-w 1

 

269

usually blinded by a pardon. If "the pardoned convict can
be said to be a “new man” he certainly carries a birth mark.

Historical background of dicta/m, that pardon makes one
a “new man.”—Although, as we have said, the language of
the Supreme Court of the United States is to be found in
many prior as well as subsequent authorities, Professor Wil-
liston has' pointed out 6 that the early English precedents
from whence the statement is derived have been misunder-
stood or departed from. The confusion has been caused by
the fact that certain punishments which the old law at-
tached to crime were of a general sort, affecting civil ca-
pacity. These consequences of the legal infamy of the con—
viction were disposed of by the pardon in the same way as
other punitive consequences of conviction. Perhaps the
phrase about a pardon making a “new man” of the convict
can be traced to Bracton, who said that a person duly out—
lawed “is not restored to anything except to the king’s peace,
that he may go and return and have protection, but he can-
not be restored to his rights of action and other things, for
he is like a new-born infant and a man, as it were, lately
born.” 7 It is clear, however, that Bracton’s idea was not
that the offense was regarded by the law as not having been
committed, or not even as no longer existing, but that the
offender regained the legal capacity which he had lost by
being outlawed. This was a very important matter, for out-
lawry meant literally what it said—an outlaw was a man to
whom no law applied and who had no legal rights or status.
There is nothing fictitious in Bracton’s statement, and in
view of the criminal law of the time his analogy of the new-
born infant is not inappropriate.

Far from the old law regarding the offense as not having
been committed, we know that Lord Coke in 1614 said that
a criminal who had been pardoned “is not a fit person to
serve on a jury,” and also “by the same reason the testimony
of such a one for a witness is in all cases to be rejected.” 8
And although the latter rule was later revised, and a par-
doned criminal permitted to testify, yet the fact of his con-

°Williston, Does a Pardon Blot Out Guilt! 28 Harv. Law Rev. 647 (1915).
7 Bracton, De Legibus (Twiss trans.), vol. 2, p. 371.
IiBro‘um. v. Crashaw, 2 Bulst. 154 (1614).

270

viction could be brought before the jury to affect his credi-
bility.9

Suggested distinctiom.—There is one ultimate cause to
which the confusion on this subject can be traced, and that
is the fact that “pardon” covers two wholly different fields.
A pardon granted on the ground of innocence ought to be
considered quite different in nature and effect from a pardon
granted for other reasons, and should properly be held to
relieve from guilt as well as from punishment. But par-
dons granted for other reasons obviously imply guilt rather
than innocence, and should not be given such effect.

Since only an insignificant fraction of pardons are
granted for reasons of innocence, it seems proper to con-
sider these the exception, and to frame our rule for the
usual case, where the pardon is granted for some reason
other than innocence. As to such pardons, the true line of
distinction would seem to be that suggested by Professor
Williston: “The pardon removes all legal punishment for
the offense. Therefore, if the mere conviction involves cer-
tain disqualifications which would not follow from the com-
mission of the crime without conviction, the pardon removes
such disqualifications. On the other hand, if character is
a necessary qualification and the commission of a crime
would disqualify even though there had been no criminal
prosecution for the crime, the fact that the criminal has
been convicted and pardoned does not make him any more
eligible.” 1°

\Ve shall proceed to consider the effect of a pardon as to
various concomitant-s of conviction to see whether those
suggested distinctions are supported by the cases.

SPECIFIC EFFECTS OF PARDON

Restoration of civil rights in general—“The doctrine has
generally been accepted by the courts that a pardon, unless
limited, restores one to the customary civil rights which
ordinarily belong to a citizen of the state. These are gen-

9 C'eh’er’s Case, T. Raym. 369 (1680) ; Rookwood’s Case, Holt 683 (1696).

10 Williston, op. cit. supra, at 653. See also Younger v. State, 2 W. Va. 579, 584
(1868), where the court said, quoting frOm Comm. v. Green, 7 Mass. 525
(1822): “Pardon may rescue him from the penitentiary or a halter, but it
cannot redeem him from the infamy of conviction.”

271

erally stated to be the right to hold office, to vote, to serve
on a jury, to be a witness, and, in earlier times, the return
of property forfeited by reason of, and punishment for,
conviction of crime. But it does not restore offices forfeited,
nor property or interests vested in others in consequence of
conviction..” 11

The reason for this doctrine has been well stated by the
Supreme Court of Mississippi: “It would be a subject of re-
gret if there were no means of absolution by which the
citizen could be restored to his rights. A man may be con-
victed wrongfully. Good men sometimes commit crimes or
misdemeanors. Provocation and passion are liable to occur
to all, and under their sway the best citizen might subject
himself to conviction for what the law denominates a crime
or misdemeanor. His guilt may be technical. There may
be much to extenuate his act in obedience to the promptings
of passion, under severe trial from provocation. He may
have universal sympathy from his fellow citizens, who
have known how well he discharged his duties in life, and
who make large allowance for his act, but the law demands
and secures his conviction. The Governor may pardon,
but henceforth this citizen is excluded from suffrage, while
thousands less worthy are allowed to exercise the right of
suffrage simply because it may be that justice has not over-
taken them.

“A frame of government which tolerates such a result
would be seriously defective.” 12

In some States, it is specifically declared by the constitu-
tion or by statute that a pardoned person shall be restored
to all civil rights and privileges.13 But the courts have
generally held this to be true without the aid of statutes.
And it has been held that no express recital to that effect in

11 State v. Hazzard, 139 Wash. 487, 492, 247 Pac. 957, 959 (1926).

1flJones v. Board, 56 Miss. 766 (1879). See also Wood v. Fitzgerald, 3 Ore.
568, 577 (1870). j

1“ Cal. Stat. 1933, ch. 945, p. 2476; Colo. Const., art. VII, § 10; Ga.
Const., art. II, §§ 2, 4; Kan. Const., art. VI, § 2; Kan. Gen. Stat. Ann.
(1935), § 21—121; Ky. Const., § 240; La. Code Crim. Proc. Ann. (Dart,
1932), i 736; Mo. Stat. Ann. (Vernon, 1932), § 4172; Mont. Rev. Codes
Ann. (Anderson and McFarland, 1935), § 12263; Neb. Comp. Stat. (1929),
§ 29-2624; Ohio Code Ann. (Throckmorton, 1936), § 13458—1.

272

the pardon is necessary. Such a recital is superfluous.“
Indeed, a full pardon has this effect even though the gov-
ernor adds a proviso that it should not relieve from legal
disabilities.15 This is not true in Alabama or Nevada, how-
ever. In these States, restoration to citizenship must be
specifically expressed in the pardon.16

A high percentage of pardons are today granted after
expiration of sentence, for the sole purpose of restoring
civil rights. Such pardons are in some States not granted
until some time after release (2 years in New Jersey), and
then only on evidence of present good behavior. In others,
e. g., Washington, they are granted automatically upon ex-
piration.

In England, pardons for this purpose are unnecessary,
because the Civil Rights of Convicts Act of 1828 provides
that service of sentence shall have the same effect as a par-
don under the great seal. Pennsylvania has a similar
statute.17 In Nebraska, the discharge warrant granted on
expiration of sentence restores civil rights.18

Right to room—One of the civil rights restored by par-
don is the right to vote. This effect of a pardon is almost
unanimously conceded,19 except in Connecticut and Rhode
Island, Where the right to vote can be restored only by act

1‘ Werner v. State, 44 Ark. 475, 40 S. W. 374 (1898). The same was
held in Yarborough v. State, 41 Ala. 405 (1868), but the rule in Alabama
has since been changed by constitutional amendment. Ala. Const, art.
V, § 124.

1‘ People v. Pease, 3 Johns. Gas. 313 (N. Y. 1803).

16Ala. Const, art. V, § 124; Ala. Code Ann. (Michie, 1928), § 365;
Nev. Comp. Laws (1930), § 11573.

17 See U. S. v. Hughes, 175 Fed. 238 (1892); U. S. v. Hall, 53 Fed. 352
(1892).

‘3 Neb. Comp. Stat. (1929), § 29—2634. See Farley v. State, 74 Neb. 471,
476, 104 N. W. 934 (1905).

19 In re Ewecutive Communication, 14 Fla. 318 (1872) ; Wood v. Fitzgerald,
3 Ore. 568 (1870); Opinions Att'y Gen. Wisconsin (1908) 293. In Maryland
the constitution provides that a pardon restores the right to vote to any-
one who has lost this privilege by virtue of having been convicted of an
infamous crime after reaching the age of 21. Md. Const., art. I, § 2. This
has been construed to mean that if the person was under 21 at the time
of conviction, a pardon is not necessary to restore the voting privilege. 15
Opinions Att’y Gen. Maryland 109 (1930) ; 20 id. 618 (1935).

 

.1... "51' 71\_..,.

 

 

 

 

273

of the legislature,20 and North Carolina, where such restora-
tion is by court order.21

A person convicted of a Federal offense and pardoned
by the President is restored to the right to vote in State
elections,22 and apparently this is the only way the right
can be restored in such cases.23

Right to hold Mica—Although restoration of the right
to vote and the right to hold office are usually mentioned
together among the effects of a pardon, there is more room
for doubt in the latter case. In accordance with the dis-
tinction we have suggested, it would seem that if good moral
character is one of the required qualifications it might be
held that conviction for crime proves lack of good moral
character even though the crime itself has been pardoned.
What little authority there is on the question seems agreed,
however, that a pardon restores the right to hold office.“

On the other hand, it seems equally well agreed that a
pardon does not automatically reinstate the person to an
oflice forfeited by the conviction. This was early held in
a Virginia case where a justice of the peace was convicted
of a malicious stabbing and sent to the penitentiary. He
was pardoned, and thereupon resumed the exercise of his
office. Upon guo warranto proceedings it was held that
conviction for felony forfeited the oflice and that a pardon

 

2°Conn. Const., amendment XVII; Conn. Gen. Stat. (Supp. 1935), §
787c; R. I. Const., art. II, 5 4. Under the Rhode Island constitution, an
executive pardon restores to all privileges except that of voting. Opinion of
the Judges, 4 R. I. 583 (1858). See also Foreman v. Baldwin, 24 III. 298
(1860), holding that under a statute providing that a person convicted of
certain named crimes shall be deemed infamous and shall forever after be
rendered incapable of holding any oflice of honor, trust, or profit, or voting
at any election or serving as a juror or giving testimony, cannot be over-
ridden by a pardon. But this case seems wrong. The pardoning power is
conferred by the constitution and cannot be limited by the legislature.

21N. C. Code Ann. (Michie, 1935), § 385. See also id., § 390.

22O'owan 'v. Prowse, 93 Ky. 156, 19 S. W. 407 (1892); Jones V. Board, 56
Miss. 766 (1879).

23 Report of Att’y Gen. Minnesota (1933—34), § 399.

=4 See Hildreth v. Heath, 1 111. App. 82 (1878), where the court said that a
Presidential pardon for a Federal ofiense would remove the disqualification,
if any, to hold the ofiice of alderman, although the city charter declared that
persons convicted of malfeasance, bribery, etc., should be ineligible. See also
general dicta to the efiect that a pardon restores one to all civil rights, in-
cluding the right to hold office. State v. Hazzard, quoted ante, note 1;
Opinions Att’y Gen. Colorado (1933—34), p. 159. In California, a “restora-
tion to citizenship” is distinguished from a full pardon. The latter restores
the right to hold oflice, but the former does not. Donham v. Gross, 210 Cal.
190, 290 Pac. 884 (1930).

274

does not restore such oflice. “When the people of Virginia
established their constitution,” the court said, “they never
intended that the bench of justice should be contaminated
by the presence of a convicted and attainted felon. Neither
did the legislature nor the executive ever intend that a.
judicial oflicer appointed under their authority should con-
tinue to hold the office after he should be sentenced to con-
finement in the penitentiary for a felonious offense. The
court is decidedly of the opinion that such judicial officer
forfeits his office by conviction and attainder of a felony;
that no pardon can restore him to his former oflice.” 2‘

This decision was followed in later Arkansas and Ten-
nessee cases involving similar facts.26

Competency to serve as flown—Although Coke said that
a pardoned felon “is not a fit person to serve on a jury,” 2’
this has since been reversed. A pardon restores compe-
tency to serve as a juror, petty 23 or grand.29 Here, as else-
where, the fact that the pardon was granted after sentence
had been fully served is immaterial.

Competency to testify as witness.—-By the old common
law, witnesses who had been convicted of murder, arson,
perjury, piracy, forgery, or other great and infamous
crimes or orimen falsi, were regarded as incompetent to
testify, on the theory that such conviction indicated moral
perversion to such degree that the person’s absolute inca-
pacity to tell the truth could safely be assumed; the man

 

2500mm. v. Fugate, 2 Leigh (Va.) 724 (1830).

90State v. Carson, 27 Ark. 469 (1872). State ex rel. Webb v. Parks, 122
Tenn. 230, 122 S. W. 977 (1909). A Florida statute expressly states that a
pardon does not restore oflices forfeited. Fla. Comp. Gen. Laws Ann. (Skill-
man, 1927). See also King v. Tamil, 1 Freem. 197 (1675), where it was
said: “In case of simony, though the King doth pardon the simony, yet the
disability remains still upon the person and renders him incapable of the
benefice”; Smith v. Sherbomm, Cro. Eliz. 685 (1598). But see Bonnet v.
Easedale, Cro. Car. 55 (1626), where it was held that a pardon of a sentence
in the spiritual court of fine, imprisonment, and deprivation, for bribery in
the office of chancellor of the archbishop of York, discharged not only the
sentence but the consequent disabilities, and enabled the person to continue
in the office. And Coke cites the case of a parson convicted of adultery and
later pardoned, who was held to be reinstated in his living, even though
another had meanwhile been admitted and inducted. 3 Coke 6, 14, cited in
In re Greathouse, 10 Fed. Gas. No. 5, 741 (1864).

”Brown v. Orashaw, 2 Bulst. 154 (1614).

’3 Easterwood v. State, 34 Tex. Cr. 400, 31 S. W. 294 (1895); Pumear v.
00mm, 83 Va. 51, 1 S. E. 512 (1887).

29 See State v. Lewis, 111 La. 673, 35 So. 816 (1904).

 

 

275

who has been guilty of a heinous crime cannot be trusted in
any respect, therefore he cannot be trusted in his testi-
mony.“o And Coke said this was true even though the
offense had been pardoned.81 But this was soon changed 1n
favor of the rule that a full pardon gives a person a “new
credit” and restores his capacity to testify, although the fact
of conviction might still be shown to affect his credibility.32

 

301 Wigmore, Evidence, 5 519. A person convicted in one jurisdiction was

held by the weight of authority not disqualified as a witness in another juris‘
diction. Id., § 521, note 3.

uBrown v. Crashaw, 2 Bulst. 154 (1614).

’3 U. S. v. Jones, 2 Wheeler Cr. C. 451 (1824) ; Boyd v. U. S., 142 U. S. 450
(1892) ; Yarborough v. State, 41 Ala. 405 (1868) (but this is apparently not
the rule today under Ala. Const. art. V, I5 124) ; Werner v. State, 44 Ark. 475,
40 S. W. 374 (1898) ; People v. Bowen, 43 Cal. 439 (1872) ; Traokman v. Peo-
ple, 22 C010. 83, 43 Pac. 662 (1896) ; State v. Grant, 33 Del. 195, 133 At]. 790
(1926) ; State v. Timmons, 2 Harr. (De1.) 528 (1833) ; Singleton v. State, 38
Fla. 297, 21 S0. 21 (1896); Roberson v. Woodfork, 155 Ky. 206, 159 S. W.
793 (1913); State V. Baptiste and Martini, 26 La. Ann. 134 (1874) ; State v.
Kirschner, 23 Mo. App. 349 (1886); State v. Blaisdcll, 33 N. H. 388 (1856) ;
Curtis v. Cochran, 50 N. H. 242 (1870) ; Terr. v. Chavez, 8 N. M. 528, 45 Pac.
1107 (1896); People v. Pease, 3 Johns. Gas. 333 (N. Y. 1803); Dtehl v.
Rodgers, 169 Pa. St. 316, 32 Atl. 424 (1895) ; Jones v. Harris, 1 Strobh. 160
(S. C. 1846); State v. Dodson, 16 S. C. 453 (1881); Watson v. State, 90
Tex. Cr. 576, 237 S. W. 298 (1922) ; Bennett v. State, 24 Tex. App. 73, 5 S. W.
527 (1887); Hunm‘cutt v. State, 18 Tex. App. 498 (1885); Rook/wood’s Case,
Holt 683, 685 (1696) ; Crosby’s Case, Skinner 578 (1695).

Where a person convicted of two offenses is granted a pardon for one of
them, he remains under the disability. State v. Foley, 15 Nev. 64 (1880);
Miller v. State, 46 Tex. Cr. 59, 79 S. W. 567 (1904).

In the older cases, there was some disagreement as to whether a perjuror
who had been pardoned was competent. See 2 Hawkins P. 0., ch. 37, § 52,
where the question is said to be “not clearly settled.” See also Thompson v.
U. S., 202 Fed. 401 (1913) (pardoned perjuror held competent); Anglea v.
Comm, 10 Grat. (Va.) 696 (1853) (contra, under statute).

The old English cases also disagreed on the question whether there must
be a burning in the hand as well as a pardon, to remove the disqualification.
See cases cited in 1 Wigmore, Evidence, § 523, note 2.

It was held in some cases that where the disability rested not upon common
law, but upon express words of a statute, it could not be removed by a pardon,
the pardoning prerogative of the sovereign being controlled by the authority
of the express law. Thus it was held in England that while a pardon will
restore to competency a person indicted at common law for perjury, it he is
indicted under the statute of 5 Eliz., ch. 9, which expressly declared that no
person convicted and attainted of perjury or subordination of perjury shall
be received as a witness, he will not be rendered competent by a pardon. Rea:
v. Ford, 2 Salk. 689 (1700); Dover v. Maestaer, 5 Esp. 92, 94 (1803), 3
Russell on Crimes (9th Am. ed.) 621. This rule was followed in a few
American cases. Foreman v. Baldwin, 24 111. 298 (1860); Hought'aling v.
Kelderhouse, 1 Park. Cr. 241 (N. Y. 1851) ; Evans v. State, 7 Baxt. 12 (Tenn.
1872). Contra: Diehl v. Rodgers, 169 Pa. St. 316, 32 Atl. 424 (1895). But
while this rule may have been sound in England, it seems inapplicable here.
In England, Parliament is supreme, and the prerogatives of the crown may be
limited by statute; whereas in this country, the pardoning power of the Execu-
tive is usually defined by the Constitution, and may not be restricted by legis-
lation. If a pardon, in the absence or legislation, has the effect of restoring
competency, no legislation should be able to deny this effect.

276

The fact that the pardon was granted for the sole and
express purpose of qualifying the person as a witness is
immaterial.83 It has even been held that a trial court may
properly postpone a criminal case from one day to the
next in order that a pardon might be procured by a pro-
spective witness, who at the time of the postponement was
incompetent to testify because of having been convicted of
a felony.34 '

A mere commutation or remission of part of a sentence
does not restore competency.35 “It is only a full pardon of
the offense which can wipe away the infamy of the convic-
tion and restore the convict to his civil rights. If a remis.
sion of part would restore competency, what part would
have that effect? Would the remission of a few days’ soli-
tary imprisonment restore a convict sentenced to the State
prison for life? ” 3"

Nor does a conditional pardon restore the competency of
a convicted felony.37 In California it has even been held
that a proclamation releasing a convicted felon before the
expiration of his term, because of good behavior, and re-
storing him to “all rights of citizenship possessed by him
before his conviction,” is not such a pardon as restores com-
petency as a Witness, since the executive act neither pur-
ported to remove the guilt nor wipe away the infamy by
merely restoring rights of citizenship to one who yet re-
mained a convicted felon.38

But where the act of the executive is construed to consti-
tute a full and unconditional pardon, it automatically has

33Boyd v. U. S., 142 U. S. 450 (1892); Flowers v. State, 66 Tex. Cr. 495,
147 S. W. 1162 (1912) ; Martin v State, 21 Tex. App. 1, 17 S. W. 430 (1886) ;
Hunnicutt v. State, 18 Tex. App. 498, 51 Am. R. 330 (1885).

“Miller v. State, 50 S. W. (Tex. Cr.) 704 (1899).

”State v. Timmons, 2 Harr. 529 (Del. 1833) (remission of “the fine, im-
prisonment, and corporal punishment”); Perkins v. Stevens, 24 Pick. 277
(Mass. 1833) (remission of “the residue of the punishment he was sentenced
to endure”); State v. Kirschner, 23 Mo. App. 349 (1886) (Governor dis‘
charged and set free the prisoner and granted him “all the rights, privileges,
and immunities which by law attach and result from the operation of these
presents”). See also Rittenberg v. Smith, 214 Mass. 343, 101 N. E. 989, 47
L. R. A. (n. s.) 215 (1913).

”Perkins v Stevens, supra.

3" Carr v. State, 19 Tex. App. 635, 53 Am. R. 395 (1885) ; McGee v. State,
29 Tex. App. 596, 16 S. W. 422.

38People v. Bowen, 43 Cal. 439 (1872); Blane v. Rodgers, 49 Cal. 15
(1874).

277

the eifect of restoring competency to testify, even though
the document does not expressly provide for this effect.89 It
has even been held that a full pardon has this effect, not-
withstanding a proviso attached to it that it should not
operate to relieve the person of civil disabilitiesflo ,

This rule, that infamy disqualified a witness, prevailed in
the common law at least from the end of the 1600’s until the
time of Bentham, whose lucid exposition of its shortcomings
and fallacies, however, proved irresistible.41 Legislation
today has almost everywhere abolished the rule, although
it remains in a few jurisdictions in full scope, and in others
it is retained for the crime of perjury.42 In most States
today, statutes make the testimony of convicted persons ad-
missible, but the fact of conviction may be shown to afiect
credibility; and it is held under such statutes that the fact
that the offense has been pardoned is immaterial; the par-
don may be proved, but the question of his credibility re-
mains one for the jury}!3

Here we see an example of the distinction we have drawn
between the legal eifects of a conviction and the fact of

 

39In a number of cases, the courts took a more liberal view than in the
cases cited above (notes 28, 31) and held that where the document was in-
tended to relieve the convict of all further punishment, it should be treated
as a full pardon, although not expressly so denominated. Thus in Jones v.
Harris, 1 Strobh. L. 160 (S. C. 1846), a remission of the remainder of a
term of imprisonment for a felony in terms that the prisoner “be forthwith
released from prison” was held to be a pardon, restoring the convict to
competency as a witness. And in Hoffman v. Caster, 2 Wharton 453 (Pa.
1837), the remission of the remainder of a sentence and liberating the con-
vict upon payment of costs, was held to remove incompetency to testify.

‘0 People v. Pease, 3 Johns. Cas. 333 (1803).

“Bentham, Rationale of Judicial Evidence, b. IX, pt. III, ch. III.

42 See statutes summarized in 1 Wigmore, Evidence, § 488.

43 Vcdin v. McConnell, 22 Fed. (2d) 753 (1927); Terry v. State, 25 Ala.
App. 135, _148 So. 157, cert. denied, 226 Ala. 685, 148 So. 159 (1932);
People v. Hardwick, 204 Cal. 582, 269 Pac. 427 (1928); State v. Taylor,
172 La. 20, 133 So. 349 (1931); State v. Scrfling, 131 Wash. 605, 230 Pac.
847 (1924); and cases cited in 59 A. L. R. 1480; 47 L. R. A. (n. s.) 215.
Thus where the credibility of a witness was attacked by proof of convic-
tion of a felony, it was held that evidence that pardon had been promptly
granted and the reasons therefore was admissible on the question of cred-
ibility. Sisson v. Yost, 58 Hun. 609, 12 N. Y. Supp. 373 (1890). Contra:
Gallegher v. Peeple, 211 Ill. 158, 71 N. E. 842 (1904), where the court
held that evidence of a pardon was inadmissible, saying, “Under the
statute, the guilt or innocence of the defendant of the crime for which he
has been convicted, his punishment, his term of service, etc., are wholly im-
material and incompetent. That he may have been pardoned proves nothing
as to his credibility, and to permit evidence of that fact would simply be
to introduce into the case a collateral issue”; Martin v. 00mm, 25 Ky. L. R.
1928 (1904).

278

character which the conviction establishes. If it were true
that a pardon makes a convict a “new man” and gives him a
“new credit,” proof of a pardoned conviction should be in-
admissible to affect a witness’ credibility; yet it has always
been and remains the law that conviction of crime may be
used to discredit a witness, in spite of a pardon, and prop-
erly so, for a pardon does not blot out the fact of criminal
conduct which conviction establishes and which may be ma-
terial in gauging the Witness’ credibility.

Efl'eets upon private rights. Costs, fines, forfeitures.—A
pardon does not affect rights which have become vested in
third persons. This rule has been sufficiently discussed in
chapter IV, where we pointed out that it has always been one
of the limitations upon the pardoning powers that it cannot
be used to affect private rights. Thus costs due to prose-
cutors, sheriffs, or other officials cannot be remitted; and even
where the fee system of paying such officers has been abol—
ished it is still generally held that the right to such costs
is vested in the State and cannot be remitted.“ It has even
been held that a person unconditionally pardoned may still
be imprisoned for failure to pay the judgment for costs.“=5
But where the pardon is granted after verdict but before
sentence is imposed, the costs are discharged, or rather they
are never incurred.‘16

Penalties payable to a private individual, as an informer,
cannot be remitted?7 '

Private property rights of the convict himself may be af-
fected by pardon. It has been held that a certificate of
restoration to citizenship restored a right in a police pension
fund, forfeited because of the conviction.48 During the
Civil War, property of persons joining the rebellion was
made subject to confiscation. However, only a life interest

*4 See ante, ch. VII.

4‘ In re Boyd, 34 Kan. 570, 9 Fee. 240 (1886) : Spel‘lings v. State, 99 Tenn.
201, 41 S. W. 444 (1897) ; Bennett v. State, 8 Humph. 118, 126 (Tenn. .1847) ;
E23 parts Mann, 39 Tex. Cr. 491, 46 S. W. 828 (1898). Contra: Ea: parte
Gregory, 56 Miss. 164 (1878), holding that after pardon the judgment for
costs is a debt to be collected like any other judgment and Continued
confinement would constitute imprisonment for debt.

‘0 State v. Underwood, 64 N. C. 599 (1870); Comm. v. Hitchman, 46 Pa.
357 (1863). _

‘7 See ante, ch. VII.

‘3 People ea: rel. Stine v. City of Chicago, 222 Ill. App. 100 (1921).

279

in real estate was confiscated By the amnesty proclama-
tion, it was held, the owner recovered his ability to deal
with the remainder (although not the life estate of which
ownership had become vested in others) and not only could
he sell it after such amnesty, but any covenant of sale made
by him while under the disability became good by the
amnesty and title passed.49

02'sz death—By the ancient common law, conviction of
felony involved a more or less complete extinction of civil
rights, denominated civil death. There is some question
whether, strictly, civil death was not confined to the cases of
professed monks or nuns and persons who had abjured or
been banished from the realm.50 Whether or not the con-
victed felon was to be considered “civilly dead” in the strict-
est sense, however, it is clear that his rights and capacities
were largely, if not wholly, abolished. “He could be heard
in court only for the direct purpose of reversing the at-
tainder, and not in prosecution of a civil right; but although
he could not sue he might be sued, and his body could be
taken in execution, subject, however, to the paramount
claims of public justice. He was not incapacitated to make
a contract, but he could make no contract which he could
enforce in a court of justice. His property rights, moreover,
were unaffected by his civil death. He could be grantor or
grantee after attainder, and the grant would be good as
against all persons except the king. So, also, it seems that
he could devise his lands, subject only to the right of entry
for the forfeiture. And he could devise his lands before
office found. He was himself under the protection of the
law, and to kill him without warrant of law was murder.” 51

A pardon removed these disabilities, subject to the limita-
tion that it could not divest any person of any right or inter-
est which had been acquired and vested in consequence of
the civil death. It could not, consequently, annul or affect
the validity of. the second marriage of the felon’s wife, con-
tracted while he was under disability, nor the sale of any of
his property by the persons who had in the meantime been
appointed to administer his estate, nor the heirs of the

 

”Jenkins v. Collard, 145 U. S. 546 (1891).
5°11 0. J. 794—795.
‘1 13 O'. J. 913.

73115-—39—VOL. III—19

280

vested interest acquired in-his estate in consequence of his
civil death. But it was held that the pardon did restore him
to hisrelationship as father to his children and entitled him
to the cutsody of them as against the claim of a guardian
appointed during his civil death.52 And while a person un-
der such disability could not sue, if a personal wrong was
done to him and he was afterward pardoned, he might bring
an action for such injury.53

A number of the courts in this country have held that
there is no such thing today as civil death,54 although in
some States the concept still survives.“5

Right to contract or marry—In Idaho a convict, having
lost civil rights, may not contract.56 And the attorney gen-
eral has rendered an opinion that a convict on parole may
not marry, as marriage is a relationship arising out.- of a
civil contract.57 A pardon restores such rights.

Efl’eet in divorce eases.—Under a divorce law making con-
viction of a crime involving moral turpitude a ground for
divorce, a pardon does not destroy this ground, even
though the divorce action is brought after the pardon has
been granted.58 Certainly where a pardon is granted after
the divorce for such ground, the pardon does not vitiate the
divorce or restore marital rights.59

In Wisconsin and a few other States in the early days, a
sentence of life imprisonment absolutely dissolved the mar-
riage bonds without any divorce proceedings, and a pardon
did not restore the conjugal rights so lost.60

5217:. re Deming. 10 Johns. 232, 483 (N. Y. 1813).
”Bang/star v. Trussel, Cro. Eliz. 516 (1596). And see Planter v. Sherwood,
Johns. Ch. 118, 130 (N. Y. 1822).
r"Dude Goal Co. v. Haslett, 83 Ga. 549, 10 S. E. 435 (1889); State v.
Duket, 90 Wis. 272, 278, 63 N. W. 83, 48 Am. S. R. 928, 31 L. R. A. 515
(1895).

“See Cal. Penal Code, § 674; Mo. Stat. Ann. (Vernon, 1932), § 12968;
N. D. Comp. Laws Ann. (1913), § 10351.

“Idaho Code Ann. (1932), § 28—101.

57 Reports Att’y Gen. Idaho (1927—8), p. 34.

58Holloway v. Holloway, 126 Ga. 459, 55 S. E. 191 (1906). Where the
pardon is granted after divorce proceedings are begun, it does not destroy
the statutory ground. Davidson v. Davidson, 23 Dist. 578 (Pa. 1912).

“Statutes sometimes expressly so provide. Neb. Comp. Stat. (1929), § 29—
112; Wis. Stat. (1935), § 247.07 (3). See also S. D. Comp. Laws (1929), § 109.

60Wis. Rev. Stat. (1849), c. 79, § 7, repealed by Wis. Laws 1909, c. 323,
§ 1. This was held constitutional. State v. Duket, 90 Wis. 272, 63 N. W.
83 (1895).

O:

281

Second oflender or habitual criminal lama—There is a
clear split of authority on Whether a pardoned offense‘may
be counted in applying statutes providing for increased
punishment for a second or subsequent conviction. The
oeurts of Indiana, Louisiana, Ohio, Texas, and Virginia,
applying the proposition that a pardon completely blots out
the offense, hold that the law will not count as a previous
conviction under such laws one which has been uncondi-
tionally pardoned; 61 or else they hold that granting a par-
don does not completely blot out the offense, but only its
legal consequences, yet increased punishment for a subse-
quent offense is part of the legal consequences of the former
conviction, which a pardon blots out.62

On the other hand, the courts of Kentucky, New York,
and Washington have held 63 that although an uncondi-
tional pardon prevents further punishment and cancels all
other legal consequences of the conviction, the fact of con-
viction remains; that to take into account this fact in de-
termining the penalty for a subsequent ofiense is not a legal
consequence. of the former conviction, but is merely an indi—
cation of the defendant’s character, namely, that he is a
recidivist or habitual criminal; the punishment under the
second offender act is solely for the last offense, although
the fact of the defendant’s character as a recidivist may be
used as matter in aggravation in determining the punish-
ment.

 

61Kelly v. State, 204 Ind. 612, 185 N. E. 453 (1933) ; State v. Lee, 171 La.
744, 132 So. 219 (1931); State v. Martin, 59 Ohio St. 212, 52 N. E. 188, 69
Am. St. R. 762, 43 L. R. A. 94 (1898) ; State v. Anderson, 7 Ohio N. P. 562
(1896); Scriirnor v. State, 113 Tex. Cr. 194, 20 S. W. (2d) 416 (1928);
Freeman v. State, 118 Tex. Cr. 67, 39 S. W. (2d) 895 (1931); Edwards v.
00mm., 78 Va. 39, 49 Am. R. 377 (1883). And see Tucker v. State, 14 Okla.
Cr. 54, 167 Pac. 637 (1917) ; and notes in 14 Minn. Law Rev. 293 and 3 So.
Cal. Law Rev. 438.

62 Scrivnor v. State, supra.

63Hermlon v. Comm., 105 Ky. 197, 48 S. W. 989, 20 Ky. L. 1114, 88 Am.
St. R. 303 (1899); Mound v. Comm, 2 Duv. (Ky.) 93 (1865); People v.
Garlesi, 154 App. Div. 481, 139 N. Y. Supp. 309, aff’d. 208 N. Y. 547, 101
N. E. 1114 (1913); aff’d. 233 U. S. 51 (1914); People ea‘ rel. Malstrom V.
Kaiser, 135 Misc. 67, 236 N. Y. Supp. 619 (1929); People v. McIntyre, 99
Misc. 17, 163 N. Y. Supp. 528 (1917); Comm. v. Vitale, 35 Lack. (Pa.) 85
(1933); State v. Edelstein, 146 Wash. 221, 262 Pac. 622 (1927); see also
State v. Webb, 36 N. D. 235, 243, 162 N. W. 358, 361 (1917); 19 Opinions
Atty Gen. of Wis. (1930) 139; 22 id. (1933) 1009.

282

This conflict is somewhat more difficult to solve than som
of the others we have considered. It is true that most 0
the cases holding that a pardoned offense is not to be coun
in applying these habitual criminal statutes rest merel
upon the general proposition that a pardon completel
blots out the offense; an argument which we have answer
by pointing out that it is more correct to say that it blo
out only the legal consequences of the offense, but not th
fact; of its commission. The difficulty here is in decidin
Whether the increased punishment for the second offens
can be said to be a legal consequence of the former convic
tion. The View that it is has been forcefully stated by th
Texas Court of Criminal Appeals:

To hold on the one hand that a full pardon absolves its gran
tee from all legal consequences of the conviction, and on th
other that by virtue of the law, and with its sanction, the fac
of such conviction may be thereafter pleaded and proved i
order to increase such grantee’s punishment in a subsequen
case, and that such holdings are not in conflict, seems to us bu
a play on words, a sort of fraud on reason and logic. The e
hancement of the punishment in the second prosecution depend
on the former conviction; and of stark necessity, such enhance
ment is in consequence of such former conviction, and in stric
legal consequence thereof.“

The opposite View seems sounder, however. When th
question has arisen in other connections, the courts—in
eluding that of Texas—have agreed in holding that the in
creased punislmient under the second offender or habitua
criminal acts is inflicted not for the prior offense but solel
for the last one. Therefore, such a statute enacted afte
the first offense is not ea; post facto;65 nor does it place th
defendant twice in jeopardy for the same offense ;“6 there
fore, also the legislature may provide that a prior convic
tion in another State shall be counted.67 Not only in lega

 

”4 Scrimzor V. State, 113 Tex. Cr. 194, 20 S. W. (2d) 416, 417 (1928).

65State v. Norris, 203 Ia. 327, 210 N. W. 922 (1926); 12 Iowa Law
Rev. 299; Jones v. State, 9 Okla. Cr. 646, 133 Pac. 249, 48 L. R. A. (N. S.)
204 (1913); and cases cited in 58 A. L. R. 20; 82 A. L. R. 347.

0°Kinney v. State, 45 Tex. Cr. 500, 78 S. W. 225, 79 S. W. 570 (1904)
(“He is not again punished for the same offense, but that is used as evidence,
in the second and subsequent offenses, in order to increase his punish-
ment") ; and cases cited in 58 A. L. R. 23. '

(”Arnold v. State, 127 Tex. Cr. 89, 74 S. W. (2d) 997 (1934) (prior
conviction in a Federal court, though for a crime committed Within Texas) ;
and cases cited in 58 A. L. R. 34; 82 A. L. R. 347.

283

theory, but as a matter of policy, there seems no reason why
all previous convictions, even though pardoned, should not
be counted in determining whether the defendant is a re-
peater, deserving the stiffer penalty provided by law for
such offenders. In England this rule is adopted by statute.68

It must be conceded that this rule would work injustice
if applied in a case where the pardon was on the ground
of innocence. As a matter of fact, of course, very few par-
dons are granted on this ground and the question does not
seem to have been involved in any of the decided cases.
Probably all courts would hesitate to enforce the rule that
the prior conviction should be counted in such acase. The
difficulty could be obviated by a statute such as that found
in Iowa providing that a pardon for any of the previous con-
victions will not preclude a sentence for habitual criminal-
ity unless the defendant can show to the satisfaction of the
court that the pardon was granted for reasons of inno-
cence.69

Pardo’ned afie/nse as afleeting right to suspended sen-
tence—A question very similar to that involving second
offenders or habitual criminal statutes arises under statutes,
such as found in Texas, providing that a suspended sentence
should not be granted to any criminal defendant previously
convicted of felony. Suppose the defendant had been pre-
viously convicted but pardoned. Can he now say that he
had never been previously convicted? There is no express
decision on the question,70 but what has been said above
would apply here. In accordance with the opinion ad-
vanced above, it is submitted that such a person should not
be allowed to deny that he had been previously convicted;
the fact of conviction is not “blotted out” by the pardon.

 

“The Criminal Law Act of 1827, § 13, providing that a royal war-
rant under the sign manual has the eflect of a pardon under the great
seal, expressly provides that no such warrant shall affect the punish-
ment to which the offender might be liable on a subsequent conviction
for felony. Stephen, Commentaries on the Lam; of England (14th ed.), p.
420.

“Iowa Code (1935). 5 13402.

7° In Warren v. State, 127 Tex. Cr. 71, 74 S. W. (2d) 1006 (1934), the
question was raised, but the court found it unnecessary to decided it, be-
cause the pardon was held to be a conditional one merely, which con-
cededly did not have the effect of blotting out the offense.

284

Revocation of suspended sentence or parole on ground. 0
a crime subsequently pardoned—Suppose a person cor
victed of a crime is given a suspended sentence or placed 0
parole, revocable if he should commit another crime. H
does commit a crime which, however, is pardoned. Is thi
pardoned crime ground for revoking the suspension 0
parole? Here again the same principle should apply; an
presumably courts holding that a pardoned offense may b
taken into account in administering habitual criminal act
would also hold that such a pardoned offense constitute
grounds for revoking suspension of a sentence or parole.7
Only if the pardon had been granted upon grounds of in
nocence would there seem any reason for not counting th
conviction as ground for revocation.

E fl’ect upon privilege against self-incrimination.—Th
constitutional guaranty that no one shall be required to b
a witness against himself is limited to cases involving dan
ger of criminal prosecution. Where the testimony de
manded will not tend to subject the witness to criminal pros
ecution, but will at most tend to disgrace him, he has n
privilege of refusing to testify, as for example, where th
crime which his testimony will reveal has been barred b
the statute of limitations or prosecution has been preclude
by an immunity statute.72 Under the same principle, if th
offense has been pardoned, he cannot refuse to testify re
garding it.73

E feet under licensing laws—Under the distinction w
have suggested, where licensing laws are designed to re
strict certain occupations or privileges to persons havin
certain moral qualifications, and therefore disqualify per
sons convicted of crime, a pardon should not remove the dis
ability. Under a rule by the New York City licensing com
missioner that applicants for taxi licenses who had been con

T1In Texas, where it is held that a pardoned offense may not be counte<
in applying the habitual criminal act, the court has held that a pardone
offense is not ground for revocation of suspension of sentence. Sanders v.
State, 108 Tex. Cr. 467. 1 S. W. (2d) 901 (1928); 41 Harv. Law Rev. 918.
Award: Opinion Att‘y Gen. Pennsylvania, 27 Dist. 830 (Pa. 1918).

7’ Willoughby, Constitutional Law of the United. States, vol. 2, p. 1165 ft.

73 Queen v. Bayes, 1 B. & S. 311, 321 (1861). See also Brown v. Walker,
161 U. S. 591, 599 (1895) ; Hale v. Henlcel, 201 U. S. 43, 67 '(1905) ; Stephen,
Commentaries on the Laws of England (14th ed), vol. 4, p. 423.

285

victed of felony should be rejected, it was held proper to
deny a license to an applicant whose crime had been par-
doned.”

Certainly a pardon does not automatically restore a li-
cense which had been revoked on the ground of conviction
of crime. .In one case, a woman authorized to practice the
healing art was convicted of manslaughter and the medical
board thereupon revoked her license. Later she was par-
doned by the Governor and thereupon recommenced practice
on the theory that the pardon automatically restored the
license. The contention was rejected and she was convicted
of practicing without a license.75

Disbarment.—What has just been said of licenses gen-
erally applies to the license to practice law. Under the
power of the courts to disbar attorneys found to lack the
moral character required for that office, the court may, of
course, disbar for professional misconduct which culminated
in a conviction for crime. A pardon for such crime will
not prevent the disbarment proceedings "’6 nor will a pardon
granted after disbarment entitle one to reinstatement.77
The right to practice law is not a right of citizenship, and
restoration to citizenship therefore does not restore the right

 

“Baldi v. Gilchrist, 204 App. Div. 425, 198 N. Y. Supp. 493 (1923).
Contra: Hay v. Justices, 24 Q. B. D. 561 (1890), holdingthat under a statute
which read, “every person convicted of felony shall forever be disqualified
from selling spirits by retail, and no license to sell spirits by retail shall be
granted to any person so convicted,” a pardon removes the disqualification.

"5 State v. Hazzard, 139 Wash. 487, 247 Pac. 957 (1926). See also Opinion
Att‘y Gen. Wisconsin (1933) 942.

7° People ea: rel. Deneen v. Gilmore, 214 I11. 569, 73 N. E. 737, 69 L. R. A.
701 (1905); People ea: rel. Johnson v. George, 186 111. 122. 57 N. E. 804
(1900) ; Nelson v. Comm, 128 Ky. 779, 109 S. W. 337 (1908) ; In re Attorney,
86 N. Y. 563 (1881); Wolfe’s Disbmment, 288 Pa. St. 331, 135 Atl. 732, 50
A. L. R. 380 (1927). And see People ea: rel. Colorado Bar Assn. v. Weeber,
26 C010. 229, 57 Pac. 1079 (1899).

An attorney convicted of crime and pardoned in one State may nevertheless
be disbarred in another State on the ground of such crime. People ex rel.
Colorado Bar Assn. v. BurtOn, 39 C010. 164, 88 Pac. 1063, 121 Am. St. R. 165
(1907); People ea; rel. Deneen v. Gilmore, supra. Since a conditional pardon
admittedly does not have the effect of blotting out guilt, it is agreed that a
conditional pardon cannot prevent disbarment. In re Sutton, 50 Mont. 88, 145
Pac. 6, Ann. Cas. 1917A 1223 (1914); State ea: rel. McLean v. Johnson, 174
N. C. 345, 93 S. E. 847, L. R. A. 1918A 1189 (1917).

77 Cohen v. Wright, 22 Cal. 293, 323 (1863); In re Riccardi, 64 Cal. App.
791, 222 Pac. 625 (1923) ; Branch v. State, 120 Fla. 666, 163 So. 48 (1935) ;
Comm. v. Porter, 257 Ky. 563, 78 S. W. (2d) 800 (1935); Matter of E, 65
How. Prac. 171 (N. Y. 1879).

286

to practice.78 “While the effect of the pardon was to relief
him of the penal consequences of his act, it could not resto
his character. It did not reinvest him with those qualiti
which are absolutely essential for an attorney at law to po
sess. It could not rehabilitate him in the trust and con
dence of the court. Lawyers are officers of the court. Th
are agents through whom justice must be administere
They should always be worthy instruments of justic
Courts should never hesitate to disbar those who are morall
unfit to act as such agents.” 79

Although this proposition is concurred in by the gre
majority of the cases on the subject, there are some cas
where the courts, applying literally the maxim that a pa
don blots out the offense, makes the offender a “new man
etc., have found it difficult to avoid the result that a pardo
is a complete defense to disbarment proceedings based 0
the pardoned offense. Indeed, the case of Ea: part6 Ga:
land 8° itself, which we have cited as the leading case i
which this blotting—out dictum was laid down, concerne
the right of a pardoned offender to practice law before t
Supreme Court, and though the decision on its own fac
may be right,81 the broad dictum and some of the reasonin
in the case would support the conclusion that a pardon 8
far wipes out a crime that it cannot thereafter be the basi
for disbarment proceedings. At least one case actuall
seems to reach that result,82 and in several others the cou
avoided this result only by finding other facts 83 or by a
bigous reasoning.“ Thus the New York court, though di

“People cw rel. Colorado Bar Assn. v. Monroe, 26 C010. 232, 57 Pac. 69
(1899).

“'9 Comm. v. Porter, 257 Ky. 563, 78 S. W. (2d) 800, 802 (1935). See 2
Harv. Law Rev. 655; 21 Minn. Law Rev. 837.

304 Wall. 333, 380 (1866).

81 The only ground for holding that taking part in the rebellion (the offens
in question) would involve disbarment as a consequence was a statute whic
imposed as a penalty disability to practice before the court.

82 In re Emmons, 29 Cal. App. 121, 154 Pac. 619 (1915).

83Thus in a Maine case, the court indicated it would have held the pardo
sufficient to prevent disbarment, but it found that the attorney had been guilt
of another crime, which had not been pardoned. Penobscot Bar v. Kimball
64 Me. 140 (1875). The defendant had forged a deposition, been convicte
of forgery, and pardoned. The court found that the pardon did not excus
his guilt in offering the deposition in evidence, and disbarred him for th
latter offense.

3‘ See, for example, Nelson v. 00mm, 128 Ky. 779, 109 S. W. 337 (1908).

287

barring the offender, was itself guilty of what Professor
Williston termed unpardonable reasoning, as follows:

The pardon does reach the offense for which he was con-
victed, and does blot it out, so that he may not now be looked
upon as guilty of it. But it cannot wipe out the act that he
did, ‘which was adjudged an ofiense. It was done and will
remain a fact for all time.85

How a man who “may not now be looked upon as
guilty” of a crime, nevertheless did the act which was a
crime and must now be disbarred for it, comments Profes-
sor Williston, it is diflicult to imagine.83

In some States disbarment is by statute made one of the
penalties imposed upon an attorney convicted of a felony
and in such States it has been held that since disbarment
is specifically made part of the legal punishment for the
crime, a pardon wipes out such legal consequences and is,
therefore, a defense to a disbarment proceeding based upon
such conviction.87 Even under such statutes, however, the
better rule would seem to be that the disbarment is based
upon lack of moral character, a fact which is not wiped out
by the pardon.

Of course, the court in proceedings for disbarment or
upon application for reinstatement of a disbarred attorney
may take into consideration the fact that the crime involved
has been pardoned, especially if the pardon was granted on
the ground of innocence, and while this fact is not control-
ling, it may influence the court in deciding the case.88

Defamation—One of the most important of the early
cases upon which rests the dicta/m that a pardon “blots out”
guilt is Uuddington v. Wilkins,” decided in 1615. The de-
fendant in that case had said of the plaintiff “he is a
thief.” Upon suit for slander the defendant justified by
alleging that the plaintiff had stolen six sheep several years
before. The plaintiff replied that since the supposed felony,
a general pardon had been issued and made the usual aver-

 

35 In re Attorney, 86 N. 1'. 563, 569 (1881).

3'3 Williston, Does a Pardon Blot Out Guilt! 28 Harv. Law Rev. 647, 656.

”E9 parte Grisler, 159 Miss. 247, 132 So. 103 (1931); Scott v. State,
6 Tex. Civ. 343, 25 S. W. 337 (1894).

33 See, for example, In re Kaufman, 245 N. Y. 423, 157 N. E. 730 (1927) :
People at rel. Deneen v. Coleman, 210 Ill. 79, 71 N. E. 693 (1904).

89 Hob. 67, 81.

288

ment to bring himself within the pardon. On demurrei
judgment was given for the plaintiff. The court said th
felony was by pardon extinct; and though the plaintiff wa
a thief once, “yetwhen the pardon came it took away, no
only poenam but rectum.”

It is clear, however, that the court. meant only that th
legal infamy of the conviction was removed, not that th
offender was “as innocent- as if he had never committed th
offense.” It is said in the report: “It was said, that 11
could no more call him thief, in the present tense, than t
say a man hath the pox, or is a villain if he be cured o
manumised, but that he had been a thief or villian he migh
say.” 90

This distinction between the use of the present and th
past tense has been followed both in England and in thi
country. In a New York case decided in 1843,91 it wa
held that it was not actionable for one person to say tha
another had stolen an axe several years before, where thi
statement was true and the latter had been convicted bu
later pardoned. The court in this case said that if th
words had been “you are a thief,” or “he is a thief,” the
could not be justified by proving a felony for which th
plaintiff had been pardoned. So in England it has beer
held that for an editor to call a rival editor a “COIlVlCtGL
felon,” was not actionable where the rival had been con
victed of felony but later pardoned; but to call him a “fe101
editor” was libel.92

Eligibility to military gamma—Under the Federal law
providing that. “no person who has been convicted of a fel
ony shall be enlisted or mustered into the military service,”9
the Attorney General has given it as his opinion that z
pardon does not restore such eligibility. “An unconditiona
pardon abates whatever punishment flows from the com
mission of the pardoned offense, but can not in the natur-
of things eradicate the factum which is made a criterion 0
fitness.94 However, disqualification to receive benefits undei

m‘Id’. at 82.

91 Baum v. Clause. 5 Hill 106 (N. Y. 1843).

0‘~’L(-;1.Im4rm v. Latimer, 3 Ex. Div. 15, 352 (1877); 5 Cent. Law Jour. 74; 6
Cent. Law Jour. 181.

“3 U. S. C.. tit. 10, § 622.

94 39 Opinions Att‘y Gen... N0. 33 (1938).

289

the World War Veterans’ Act is made a “penalty” by the
act, and is removed by a pardon.95

During the W’orld \Var, regulations under the Selective
Draft Act placed men convicted of felony in a deferred
classification. It was held, however, that where the offense
had been pardoned, it was “blotted out” and the person was
to be classified as if he had not been convicted. “As a full
pardon restores one to all his civil rights and blots out
the existence of guilt, it is inconceivable that it was intended
by the regulations that a person who had received a full
pardon should be deprived of one of a citizen’s greatest
privileges, to bear arms in the defense of his country.96

It would seem, however, that it was the purpose of the
act to put convicted criminals in a deferred classification.
This was not a “punishment” or other legal consequence of
conviction, but a classification on the basis of character, and
the pardon (unless granted for innocence) should not have
been allowed to obscure the fact that the defendant was a
person of the type which Congress felt should be placed
in a deferred class.

Immigration and deportation. larva—The immigration
laws exclude from admission into this country aliens “who
have been convicted of or admit having committed a felony
or other crime or misdemeanor involving moral turpitude,”
and provide for the deportation of such aliens if they gain
entrance without immediate discovery. It is held that the
fact that the alien was pardoned of the crime does not wipe
out his disqualification.97

N aturaltzate'oa—Under a statute requiring as a condition
of naturalization that the alien seeking to be naturalized
must prove that he has behaved as a man of good moral
character during his residence in the United States, it has
been held that a pardoned convict is not eligible. The
court, after quoting the dictum in Em part6 Garland 9’5 that
a pardon blots out the offense and makes the offender a
new man, nevertheless concluded: “And yet I do not sup-

“ 36 Opinions Att’y Gen., No. 193, 195.

96U. 8'. ea- rel. Schwartz v. Commanding Officer, 78th Division, 252 Fed.
314 (1918). .

’7 U. 8. ex. rel. Palermo v. Smith, 17 F. (2d) 603 (1927) ; Weedin v. Ham-
pet, 28 F. (2d) 603 (1928).

934 Wall. 333, 380 (1866).

290

pose the opinion is to be understood as going the length 0
holding that while the party is to be deemed innocent o
the crime by reason of the pardon from and after the ta
ing effect thereof, that it is also to be deemed that he neve
Idid commit the crime or was convicted of it. The effect 0
the pardon is prospective and not retrospective. It remov
the guilt and restores the party to a state of innocen
But it does not change the past and cannot annihilate th
established fact that he was guilty of the offense.” 9"

This decision seems correct. Here again the question i
issue is not conviction, but character.

E #8025 on other crimes—A pardon applies only to th
offense therein mentioned. Obvious as this may seem, it h
been argued in some early cases that a pardon for one o
fense operates as a pardon of all other offenses theretofor
committed. Some historical basis for this view is found '
old English law. There the doctrine that conviction an
pardon of one felony merged all others previously commi
ted was founded on the concept of corruption of blood. Th
party having forfeited all his goods and chattels by the firs
conviction was not subject to the same punishment again.
But the concept of corruption of blood having no standin
in this country, this effect of a pardon is also denied.2

A question may arise as to the effect of a pardon fo
one crime upon other related crimes arising out of the sam
act. It has been held that a pardon for an assault, wher
the person assaulted later dies and the offense become
murder, does not operate to pardon the murder.3 However
a general pardon, covering all felonies and misdemeanor
committed before a certain day would pardon a homicid
from a wound given before the day, even though the deatl
occurred thereafter, for the homicide relates back to th
time of the criminal act which caused it. If the pardon ha
covered only misdemeanors, it would include the stroke, bu
not the murder, which is a felony.4

”In re Spenser, 5 Savvy. 195, 199, Fed. Gas. No. 13234 (1878).

14 B1. Comm. 336, 337, 375.

2Hawkins v. State, 1 Port 475 (Ala. 1835); State v. Foley, 15 Nev. 64
(1880) ; State v. McCarty, 1 Bay 334 (S. C. 1793) ; Em parte Woimer, 2 B183
321, Fed. Gas. No. 17,362 (1878).

3 00mm. v. Roby, 29 Mass. (12 Pick.) 496 (1832).

4 Bacon’s Abr., Pardon, vol. 6, p. 140.

291

E feet on other parties—Aoeessorie8.—Although all felon~
ies are several, yet the felony of one may be so far dependent
on that of another that the pardon of one necessarily inures
to the benefit of the other. Under the common law rule that
an accessory cannot be arraigned until the principal is con—
victed, a pardon granted to the principal prevents convic-
tion of the accessory.5 Under statutes making accessories
principals, however, an accessory to a crime may be con-
victed even though the principal has been pardoned.6 .

The pardon of a defendant discharges his sureties from
liability on a bail bond for the appearance of the de-
fendant."

E fleet in other jufisdiotiom.——A pardon granted by the
proper pardoning authority in one jurisdiction for a crime
pardonable by that jurisdiction will be given full force and
effect in every other jurisdiction. Thus a person pardoned
by the Governor of one State for a crime committed in that
State is competent to testify as a witness in a second State.8
The same rules applies as between State and Federal gov-
ernments. A person pardoned by the State authorities for
a State crime is competent to serve as a witness in the Fed-
eral courts.9 An alien convicted of a State crime and par-
doned is not subject to deportation by the Federal govern-
ment.10 Conversely, a person convicted of a Federal crime:
and pardoned by the President is restored to his right to
vote in State elections.11

Efleot of serving sentence—In England and in Pennsyl-
vania it is provided by statute that service of sentence shall

 

I‘IS'yer’a Case, 4 Coke 43 b (1589); Gofi' v. Byby, Cro. Eliz. 540 (1596); 2
Hawkins P. 0., ch. 37, § 22.

600mm. v. House, 10 Pa. Super. 259 (1399).

700mm. v. Hargis, 137 Ky. 1, 120 S. W. 294 (1910); 2 Hawkins P. 0., ch.
37, § 23.

8See State v. Foley, 15 Nev. 64 (1880) ; Neb. Comp. Stat. (1929) § 29—113.

9 U. S. v. Hughes, 175 Fed. 238 (1.892).

1" U. S. v. Perkins, 17 Fed. Supp. 851 (1936).

11C'owan v. Prowse, 93 Ky. 156, 19 S. W. 407 (1892); Jones v. Board of
Registrars, 56 Miss. 766 (1879). Contra: In a West Virginia case following
the Civil War, it was held that a Federal pardon restores only rights and
privileges derived from the Federal government, and that the President’s
amnesty did not relieve attorneys from complying with the State law requir-
ing an oath that they had not taken up arms against the United States. Ea:
parte Hunter, 2 W. Va. 122 (1867). But the United States Supreme Court
held such laws to be ea- post facto and therefore unconstitutional. Ea: part6
Garland, 71 U. S. 333 (1866).

294

It has been held that under the Selective Draft Act 0
the World War a pardoned criminal is to be classified as i
he had not been convicted, but this seems dubious.

B. A pardon does not have the following effects: It doe
not restore offices forfeited, costs and fines paid, and othe
interests which have become vested as a result of the con
viction. So, where, under the old common law, convictio
resulted in “civil death,” automatically dissolving the con
vict’s marriage tie and causing his property to pass by in
heritance, a pardon could not invalidate the second mar
riage of his wife nor divest his heirs of their vested interes'
in the estate. .

Where conviction of crime is made a ground for divorce
pardon does not vitiate this ground, even though the divorc
action is not brought until after the pardon is granted.

By the better rule, a pardon does not prevent the convic
tion from being counted as a previous conviction under sec
ond offender or habitual criminal statutes or similar acts
although the cases are not in accord on this.

Revocation or refusal of a license to practice law, medi-
cine, or other undertaking is not prevented by the fact of
pardon, where good moral character is made a prerequisite
to the license.

Naturalization may be refused to an alien on the ground

that conviction of crime shows he has not behaved as a man
of good moral character—and this even though the crime
has been pardoned. The deportation laws, however, ex-
pressly except a pardoned convict from the provision for
deportation of aliens convicted of crimes involving moral
turpitude.
- Efl‘ect of pardons granted for innocence—Pardons for
innocence should be given the full effect of a finding of
innocence, the same as a judicial acquittal. If necessary,
this distinction in effect between pardons granted for inno-
cence and pardons granted for other reasons should be clari-
fied by statute, which might also provide that the burden
of proving that the pardon was granted on the ground of
innocence should rest upon the person alleging the pardon.
There would seem to be no reason, however, why the courts
could not achieve this result without statutory help.

 

CHAPTER X

CONCLUSIONS AND RECOMMENDATIONS
INTRODUCTORY

Among release procedures, pardon is a patriarch. It is
the oldest of them all, and the direct or collateral ancestor
of most of them. It reaches back to those early beginnings
of human history when the father of the family or of the
clan exercised the power to forgive as part of his power
to punish. From the head of the family it passed natur-
ally to tribal chiefs, priests, princes, kings, and dictators.
It became an institution, not only vested in all absolute
rulers as a matter of course, but blossoming out also in a
myriad of surprising variations—customs and usages some-
times grim, like the practice of allowing one convict to earn
a pardon by acting as executioner of his fellows; and some-
times of a fairy tale quaintness, like the practice told of in
old German songs unearthed by Grimm, by which a virgin
could earn a pardon for a condemned man by scampering
nine times around the market-place in the nude.

Emerging from the field of mere arbitrary caprice or
Semimagical folklore, pardon has become an institution
which is a part of, and yet above, the legal system. It has
never been crystallized into rigid rules. Rather, its func-
tion has been to break rules. It has been the safety valve
by which harsh, unjust, or unpopular results of formal rules
could be corrected. The almost wholly unrestricted scope
of the power has been both its greatest weakness and its
greatest strength. In the hands of arbitrary rulers exer-
cising the power merely to indulge their personal whims,
it has been subject to the most flagrant abuses. On the
other hand, it has been the tool by which many of the
most important reforms in the substantive criminal law
have been introduced. Ancient law was much more static
and rigid than our own. As human judgment came to feel
that a given legal rule, subjecting a person to punishment

731 15—39—v0L. 111—20 (295)

296

under certain circumstances, was unjust, almost the on]
available way to avoid the rule was by pardon. Quickl
pardons on such grounds became a matter of course; an
from there to the recognition of such circumstances as c
defense was only a short step. This is what happened wit
self defense, insanity, and infancy, to mention only thre
well known examples.

Patriarchs do not usually retain the full vigor of thei
youth, and pardon is shrinking in impmtance. But it i
giving way only to its own offspring. Pa,role furloughs
and good- time laws can all be tiaced directly to pardon
Indeed even today “parole” in some States (e. g. Florida)
is legally merely conditional pardon.

WHY PARDON? A REEXAMINATION

The question may even be raised whether the ancient
institution has not outlived its usefulness. Is there any
valid reason why pardon should be retained? Are not ju-
dicial review and modern release procedures like parole
sufficient to do all that pardon ever did—and do it better?

To a large extent, the answer must be yes. Much, and in
some States most, of what is being done under the Gover-
nor’s pardoning power could and should be done either by
the courts or by a parole board. There remains a valid
field for the pardoning power to occupy, but it is a much
more restricted field than it occupies today.

This is perhaps the most important conclusion this. sur-
vey of pardon has to offer. Let us therefore state it e111-
phatically and in detail:

The exercise of the pardoning power should be restricted
from two sides:

1. 07iminal procedure should be liberalized so as to per-
mit reversal of a conviction urhere new evidence is found
indicating that the defendant was innocent—A pardon
granted on the ground of innocence is an anomaly at best.
Anglo-American law has been peculiarly indifferent to this
problem. Continental law has gone much further in per-
mitting judicial reconsideration of such cases. Obviously,
this is the only logical and satisfactory way to handle the
problem. A11 innocent man who has been wrongly c011-

297

victed is entitled to vindication, by reversal of the erroneous
conviction. To pardon him for being innocent is irony.
What is more, it creates confusion in determining the proper
efi'ect to be given to a pardon. As is pointed out in chapter
IX, a pardon for innocence should be given much broader
effect than other pardons.

The objection to permitting such reversal, of course, is
that it would render the law uncertain if there were not a
time after which a case was closed and the judgment final.
It may be conceded that some limits must be drawn, but
the fact remains that the right of appellate review is much
more restricted in this regard in most American States than
it is in England, where in turn it is more restricted than in
most continental countries. \Ve recommend a liberalized
procedure such as that of France or Germany. ~

2. All releases on condition of good behavior and under
supervision should be under the parole law, and not by
conditional pardon—This is the legitimate field of parole.
There is no reason for having similar types of releases
granted by two different agencies. Furthermore, the parole
organization has better facilities for determining when a
prisoner should be so released and for supervising him
thereafter. Even where the parole law is inadequate, the
proper approach is to strengthen it, rather than to handle
the problem by conditional pardon or other forms of
executive clemency.

This would mean the almost total elimination of condi-
tional pardons. Special situations may arise from time to
time where certain conditions may properly be attached to
a pardon, but the use of conditional pardon as a regular
procedure, in lieu of parole, should be abandoned. Even
the States having no separate parole system, and where
parole rests legally upon the Governor’s clemency power,
should enact a parole law resting upon the States power
to punish criminals and rehabilitate socially dangerous
persons, wholly divorced from the Governor’s power to
grant clemency.

To the same end, the parole laws should be liberalized so
as to give the parole board full discretion to parole any
prisoner it deems worthy. This means repealing all restric-

300

procedure should permit reprieves to be granted by th
courts. But while there is somewhat less logical reason for
retaining this power in the executive than can be found for
most of the other examples listed above, this last recourse
to the Governor in these cases is a benevolent power, which
we shall probably want to retain and it will no doubt con—
tinue to be a major part of the pardoning power.

SHOULD PARDON AND PAROLE ADMINISTRATION BE
COMBINED?

There is a growing tendency to combine the administra-
tion of pardon and parole in one board. About half the
States now have in greater or less degree combined the two.
Especially in recent years has this movement grown. In
the year 1937 alone four States—Arkansas, Michigan, Mis-
souri, and Tennessee—enacted laws which not only created
such consolidated boards of pardon and parole but also com-
bined probation administration.

Is this tendency sound?

What has been said in the preceding section about the
proper function of pardon as distinguished from parole
should help in answering this question. The main, if not
the sole, argument in favor of such consolidation is" that to
have two agencies performing such similar functions means
overlapping and duplication of efforts. But this assumes
that the two functions are similar. It is true that as long
as executive clemency is used to release persons on condi-
tional pardon and other forms of release similar to parole,
there is good reason to say that all these precedures should
be handled by one board. But the sounder approach would
be not to perpetuate the present misalliance of pardon and
parole by throwing them together into one board, but to
begin by defining the proper scope for each of them. Under
present practice in most States there is no clear differen-
tiation in nature and function between parole and condi-
tional pardon. Yet the line between the two can be clearly
and unmistakably drawn, as already stated; pardon should
not be in any degree a regular release procedure, but should
be restricted to the unusual cases of the types enumerated in
the preceding section. All regular conditional releases
should be under the parole law.

 

30.1

If executive Clemency would abandon the field which
rightly belongs to parole, we believe the reasons for con-
solidation of the two agencies would disappear almost
entirely. The field left for pardon would then be quite dis—
tinct from that covered by parole. The type of investigation
and the training required of the investigators would
be entirely different. Parole would depend upon the pris-
oner’s personality, upon his prison record, the degree of his
reformation, the environment into which he will return and
his chances 0f getting a job. The investigators to deter-
mine these factors should have social—service training, and
the parole board itself should have on its membership com-
petent penologists, psychiatrists, criminologists, and social
workers.

On the other hand, pardon in its properly restricted field
would depend upon wholly different considerations and
would have to be administered upon wholly different poli-
cies. The examples we have listed as properly coming
within the scope of the pardoning power all depend upon
political or judicial considerations. Whether political pris-
oners should be granted clemency is not a matter to be de-
termined from the social worker’s point of View, but from a
statesman’s. Whether a conviction is of a kind that popular
opinion denounces is properly addressed to political ofii—
cials. Whether a person is innocent though legally con-
victed is a judicial question which if too late to be reopened
in the regular courts must nevertheless be decided by an
investigation approaching as nearly as possible the judicial
fact-finding type of inquiry.

None of these are inquiries which a parole board is par-
ticularly fitted to determine.

Combining pardon with parole administration only tends
to perpetuate the present muddled situation, in which no
clear differentiation exists between the field properly cov-
ered by parole and that left to, executive clemency. This is
not only confusing but unfortunate in its results. In very
few States are any officers provided to supervise persons re-
leased on conditional pardon, indefinite furlough, or any
other type of executive clemency. The very definition of
parole, on the other hand, assumes the existence of a staff
of parole officers to supervise those paroled. And while in

302

fact such officers are sometimes nonexistent even unde
parole statutes, two facts remain true: (1) There are mor
likely to be parole officers than conditional pardon officer
(there are none of these in any State) ; (2) there is mor
possibility of reforming the parole law and obtaining a
adequate staff of parole officers than of obtaining a staff t
supervise persons at liberty on conditional pardon.

The goal to strive for then is not a consolidation of par
don and parole, but the utter exclusion of pardon fro
the field. Pardon should be restricted to special cases in
volving political or judicial considerations. The whole fiel
of conditional release as a regular penal practice belongs to
parole.

ORGANIZATION OF PARDON ADMINISTRATION

If not in combination with parole, how is pardon to be
administered 2

The obvious political implications and considerations in-
volved in most of the valid grounds for pardon indicate the
propriety of retaining this power in the hands of the chief
executive. The objection that this takes too much of the
Governor’s time from more important matters of state is
true today, when executive clemency is used in so many
States as a, regular and normal release procedure, handling
cases which should be left to a competent parole board, but
it should not be true if pardon were restricted to the excep-
tional cases as we have recommended. In the Federal Gov-
ernment, where this distinction is observed, there is no un-
due press of pardon cases burdening the President.

This does not mean that it would not be helpful to have
a pardon official or board to assist the Governor in this func-
tion. A board would seem preferable to one official, for
the determination of whether or not clemency should be
granted would usually involve considerations of policy upon
which it would be well for the Governor to have the views
of other executive officials of his administration, rather than
of a pardon attorney or other oificial who too often may be
merely a kind of secretary.

In most States the board might properly be composed
of such other executive officers as the attorney general and

303

the secretary of State. The attorney general should be in-
cluded because many of the cases will probably involve
legal implications.

Prison and parole officials should not be members of this
board. Considerations relevant in ordinary release proce-
dures should. not be interpolated into the deliberations, and
if the view-point of penal authorities were introduced into
clemency hearings, it would promote exactly the situation
we have tried to rectify—the usurpation by the executive
clemency power of the field belonging to parole and pe-
nology generally. Even such major penal officials as the
head of a department of correction or of public welfare
should therefore have no place on the pardon board.

It would be helpful for the board to have a secretary or
pardon attorney devoting all or a substantial part of his
time to his duties as such. Certainly in the larger States
this would be necessary. His duties might be patterned
after those of the pardon attorney of the United States.

The board may or may not be given some power beyond
merely advising the Governor. Three main alternatives
suggest themselves:

1. All applications must be brought before the board, but
the Governor may, after obtaining the board’s views, take
any action he wishes.

2. The Governor must obtain the board’s consent, and
cannot grant a pardon over the unfavorable action of the
board.

3. The ultimate pardoning power is in the board itself,
of which the Governor is only one member. The Governor
may have only one vote, as any other member, or he may
have a veto power.

It seems unnecessary to go beyond the first method. This
subjects the Governor’s action to control which is sufficient
to exert powerful pressure against abuse, and yet is re-
spectful and leaves full responsibility resting very directly
upon his own shoulders.

Vesting the pardoning power in a board, of which the
Governor is only one member with one vote (as in Idaho,
Nebraska, and North Dakota) scatters responsibility so
that it may be difficult for the public to place the blame
for abuse of the pardon power.

304

Of course it should be mandatory for the Governor t
report regularly to the legislature all cases of clemenc,
granted. This publicity, together with the requirement tha
he first submit all cases to the board, would seem to plac
sufficient checks upon the Governor to make abuse unlikely

PROCEDURE

Pardon procedure should be (1) simple, (2) thorough
(3) public, (4-) free of charge, and (5) adversary rathe
than ex parte in nature.

By a simple procedure is meant one which the averag
prisoner is able to handle without the aid of a lawyer. 0.
course, important or difficult cases probably will require
lawyer and certainly the right to counsel in all cases shoul
be allowed.

By a thorough procedure is meant one in which the fina
decision is reached not merely upon allegations stated i
the prisoner’s petition, or in court records, or upon recom-
mendations of the trial judge, prosecutor, or interested citi-
zens, but upon a careful investigation of the case. The par-
doning authorities should have available at least one office
to make such investigations.

Not every phase of the procedure can be public, but it is
proper that a. right to a public hearing be granted, in which
the whole case may be subjected to the full light of pub-
licity.

The granting of clemency in proper cases is a matter of
public interest, and not of interest to the prisoner alone.
There is, therefore, no reason for charging the cost to him.
The right to apply should be free of charge. The practice
of one State of charging $10 for the privilege of applying
for clemency is not to be commended.

By adversary proceedings is meant a procedure in which
the State is regularly represented at any public hearings.
The Michigan statute of 1937 is an excellent model in this
respect.

Application—The regulations found in most States con-
cerning the manner in which executive clemency may be
applied for are usually designed to accomplish two aims:
(1) To bring applications before the pardoning authorities
in an orderly manner, with at least a minimum of the neo-

 

305

essary facts in the case to permit intelligent disposition;
and (2) to provide notice to the prosecuting officials and
to the public generally of the fact that clemency is being
applied for.

While the first of these is a wholly proper purpose, in
many States too much reliance seems to be placed upon
it. It is proper to demand that the petitioner state the
grounds upon which he asks for clemency, but such state-
ments can never be sufficient to decide the case. The elab-
orate requirements found in some States, therefore, of afii-
davits of the trial judge and prosecutor and others, trans—
scripts of the evidence in the criminal trial, and even
copies of the indictment, verdict and judgment, prison rec-
ords, statements of the prosecuting witness and members of
the jury—all these are still inadequate and unreliable. No
multiplication of such documents will enable the board to
reach a sound result merely upon the papers in the case.
A personal investigation by the board itself is necessary,
and for this reason it is indispensable that the board have
at its command the services of an investigator to assemble
the facts.

Public notice of the fact that application has been made
is a wholesome requirement. Unfortunately, no method of
accomplishing this purpose adequate for modern society
has been devised. The requirement still found in some
States that such notice be posted in the courthouse was ef-
fective in the horse-and—buggy days, but it is practically
negligible in effect today. Not much better is the usual re-
quirement of publication in a newspaper. This problem of
oflicial public notice is, of course, not peculiar to pardon
cases; it arises in numerous other legal situations. It is,
however, probably somewhat more acute here than in other
connections. Building contractors have a business interest
in keeping themselves informed of advertisements for bids
for public work; the same is more or less true of tax sales,
etc. But no one has any specific interest in contesting par-
don applications. The victim of the crime may feel an in-
terest, but he will probably not make it a point to read
newspaper advertisements of pardon applications for years
after the crime.

306

Perhaps the laggard law will eventually adopt modern
publicity devices like the radio to replace outmoded methods
like posting in the courthouse or publishing a small notice
in an obscure journal.

One aid to publicity is to have pardon hearings held at
regular stated times. This, in itself, does not give notice
of the specific cases to be heard, but it is of some value.

Limitations on repeated applicatiom.—Surprisingly few
States have placed any restrictions on the right to petition
for clemency again and again. In New Jersey a convict
whose petition for clemency has once been refused must
wait 2 years before petitioning again; and in Florida,
Georgia, Nebraska, and Utah he must wait 1 year. In all
other States he can petition every 6 months or even oftener.

Apparently, pardon boards in most States have not felt
that this privilege was being abused, even though many of
them hear applications for parole as well as for pardon,
and may have a high percentage of all the prison inmates
applying for one or the other at a single session. At one
session of the Idaho Board of Pardon and Parole, in Oc-
tober 1936, there were pending 174 applications out of a
prison population of 271.

Investigation—As already said, in all too many States,
the pardoning authorities do not have the benefit of any
personal investigation of the cases coming before them, but
rely entirely upon the papers in their files. Only a few
States have an investigator available. Indiana in 1935
provided for such an oflicer to assist the Governor’s advis-
ory commission on clemency. In States where pardon and
parole administration is combined, the parole staff is avail-
able for pardon cases. The catch is that parole investi-
gations are often inadequate, too. Moreover, as we have
pointed out, pardon should be restricted to cases requiring a
different sort of investigation from that used in parole.

Hea7‘ings.——A formal, public hearing should be a pre~
requisite to the granting of any pardon or commutation.
This is granted in most of the States where a pardon board
exists.

Applicants should not only be permitted but requested
to be present, and should have the right to present any
relevant evidence. The pardon board should have power to

 

 

 

307

subpena witnesses and take testimony under oath. If cases
which should be handled by parole are excluded from
executive clemency, the remaining cases are likely to be of
greater importance than is now generally the case, and
so will probably require more elaborate consideration.

Attorneys should be permitted to appear before the board
on behalf of an applicant, as is true now in about half
the States where formal pardon hearings are held. How-
ever, it seems undesirable to permit attorneys to appear
without the prisoner himself. The objections sometimes
made that permitting prisoners to appear before the par-
don board disrupts prison discipline, and unduly influences
the board members in his favor, are without foundation.
Very often the prisoner’s personal appearance is unfavor-
able and influences the board to refuse clemency.

It is most important that the State be made a party to
all pardon cases, and that it be represented at the hearings
by the attorney general or a member of his staff, who should
oppose the granting of the petition where that course
seems proper. Merely notifying the prosecutor who tried
the criminal case and permitting him to be present if he
wishes (as in Louisiana and Massachusetts) is not suf-
ficient to protect the public’s interest. What is needed is a
statutory provision of the sort found thus far only in
Michigan, providing for the presence of the attorney general
or a member of his staff. The mere knowledge that the
State will be thus represented should contribute considerably
to reduce unfounded applications.

Function of the board—It is vain to insist, as the Illi-
nois, Massachusetts, and Nebraska statutes do, that the
board should in no case undertake to act as a court of re-
view, but should confine itself to a consideration only of
matters which “properly bear upon the propriety of extend-
ing clemency.” Necessarily the board will act more or less
as a court of review, not only in cases where the claim is
innocence, but in most other cases as well. Of course the
sort of cross-examining of the witnesses about the facts
of the crime in which lawyer members of the board are
prone to indulge are usually rather irrelevant, especially
where there is no claim that the applicant is innocent.
Throughout this volume we have pointed out that the rigid-

308

ity of the law or the fallibility of evidence sometimes de
mands the complement of the pardoning power to achiev
justice. Pardon is a corrective measure in such cases, an
the board is determining whether the penalty should b
dispensed with or mitigated is necessarily performing
function which is quasi—judicial at least.

Decisions.—While hearings should be public, decision
obviously should be arrived at in closed session. In som
States, such session is held immediately after the hearing
in others several days later. Where a great mass of case
is handled at one session, it is almost compulsory to dispos
of them at once lest the members forget the facts and cir
cumstances involved. If cases properly belonging to parol
were excluded, a plethora of pardon cases would be un-
likely, and it would probably be better to allow some day
for reflection between the hearing and the board’s decision.

In Nevada, although the board meets in closed session,
the vote of each member is a matter of public record, a fact
which has been said to obstruct the work of the board,
because the members, all of whom hold elective oflice, are too
concerned about popular reaction to their votes. There is
more reason for permitting public Opinion to influence the
granting of pardons than the administration of parole, and
if the Nevada board would so restrict itself (especially if
the State would adopt a probation law so that the practice
of granting conditional pardons in lieu of probation could be
abandoned), publishing the votes of the members might not
be objectionable.

Can a pardon be rejected?——It is commonly said that a
pardon must be delivered and accepted before it takes effect.
That delivery is necessary is conceded, but does a convict
have a right to reject a. pardon? Can a man condemned
to death insist on being executed even though the Governor
has granted him a pardon? Can a pardoned inmate of the
penitentiary refuse to give up his cell? It would be pre—
posterous to answer these questions in the affirmative. We
are therefore justified in saying that all the dicta to the ef-
fect that acceptance is necessary are wrong. In this View,
the United States Supreme Court concurs. As Mr. Justice
Holmes, speaking for a unanimous court, has said: “A par-

309

don in our days * * * is the determination of the ulti—
mate authority that the public welfare will be better served
by inflicting less than what the judgment fixed.” To per-
mit the prisoner to reject a pardon would deprive the Presi-
dent “of the power in the most important cases and require
him to permit an execution which he had decided ought not
to take place unless the change is agreed to by one who on no
sound principle ought to have any voice in what the law
should do for the welfare of the whole.” 1

Revocation of a pardon—After a pardon has once been
delivered, it cannot be revoked by the pardoning author-
ities for any reason, even for example if it was obtained by
fraudulent misrepresentations. However, it is agreed that
such fraud is ground for the courts to hold such a pardon
null and void, although there is a clear split of authority
as to the proper procedure by which this may be done. It
is agreed that upon a direct proceeding in equity brought
to have the document declared a nullity, the courts may
render a decree to this effect. The question upon which the
cases differ is whether a pardon may be attacked for fraud
in a habeas corpus proceeding brought by the prisoner to
effect his release. While the cases in which this question
has arisen are divided, it is submitted that the better rule
is that the courts do have power in such a proceeding to go
behind the face of the document and hear evidence on the
question of fraud in its procurement. There is no reason in
logic or analogy why this should not be done, first because
it can be done in a direct proceeding to attack the validity
of the document and the form of the action should not be
material; and second, because other collateral issues at
least as difficult to determine are often decided by the courts
upon habeas corpus proceedings.

It may be asked why the pardon authorities themselves
should not have power to revoke for fraud. The rule to the
contrary is based upon the conception that a pardon is in
the nature of a deed. This concept has led the courts into
one clear error, namely that like a deed a pardon cannot
be valid without acceptance; and the argument that like
a deed pardon may not be revoked may be said to be a sec-

lBiddle Y. Perovich, 274 U. S. 480, 486—487 (1936).

. 310

ond error. It would seem much sounder to provide that
pardon may be revoked by the pardoning authorities for
certain specified reasons such as fraud in the procurement,
leaving a right to judicial review of the question whether
in any given case there was in fact fraud justifying the
authorities in revoking the pardon. A statutory provision
to this effect should be held valid, although a court steeped
in the notion that a pardon is a deed might hold it unconsti-
tutional.
PARDONS BY THE LEGISLATURE

In February 1938, a bill was introduced in the California
Legislature to grant a pardon to Tom Mooney, the labor
leader convicted of murder for the death of nine persons in
the San Francisco preparedness parade bombing, July 22,
1916. The bill passed the lower house, but was defeated
in the senate. The attorney general of California gave it
as his opinion that such a bill would be unconstitutional.

This raises the interesting question of whether the legis-
lature has such power or not. Two objections may be
raised: (1) That the grant of the pardoning power to the
Governor or pardon board is exclusive, and leaves no con-
current power in this regard to be exercised by the legisla-
ture; (2) that at all events constitutional provisions in
most States, including California, prohibit the enactment
of special legislation, and therefore even if the legislature
has power to enact pardon laws, it may not grant a pardon
to one individual but may exercise the power in general
legislation only.

Of the two, the first is the more fundamental question.
If we rely on the great weight of judicial pronouncements,
the answer seems almost unanimous—the pardoning power
granted to the Executive by the Constitution is meant to be
exclusive, and may not be invaded by the legislature. It
is true that there is very little direct authority on the
question, i. e., very few cases in which the legislature actu-
ally and specifically undertook to grant a pardon. Most
of the cases discussing the question involved legislation not
specifically dealing with pardon at all, but which the courts
said in effect amounted to pardon. The courts have found
such inadvertent “invasion” of the executive pardoning

311

power in an amazingly diverse multitude of statutes,
including:

Parole laws—on the theory that parole is only a type of
conditional pardon and so beyond the control of the legisla-
ture;

Probation laws and laws authorizing the courts to sus-
pend sentence—on the theory that these wrongfully pur-
ported to delgate a pardoning power to the judiciary;

Laws authorizing courts to reduce a sentence within 30
days after its rendition; this was held bad as attempting to
authorize the courts to grant commutation;

Good-time laws, authorizing deductions from the sen-
tences of convicts for good behavior; I

Acts abolishing the rule that convicted felons are incom-
petent to testify as witnesses;

Immunity statutes, providing that no person should be
excused from testifying on the ground that his testimony
would tend to incriminate him, but that no person so re-
quired to testify should be punished for acts disclosed by
such testimony—held bad as attempting to grant a pardon
insofar as they applied to witnesses already convicted.

It has even been held unconstitutional for the legislature
to repeal a criminal statute and quash pending prosecu-
tions under it. This, in spite of the well-recognized rule
that upon repeal of a statute all pending prosecutions auto-
matically fall and all offenses not yet prosecuted are there-
upon wiped out.

American legislatures have not ordinarily undertaken to
grant pardon, but on the only occasion in American history
when a need for legislation on this subject arose—the re-
construction period following the Civil War—all acts of
amnesty which were passed both by Congress and by State
legislatures, were upheld by the courts;

In order to reconcile the idea of a generally exclusive
power in the executive with the hard necessity involved in
such amnesty cases, at least two compromise theories have
been evolved: (1) That the power is partially concurrent,
i. e., the legislature may enact general laws of amnesty, but
cannot grant individual pardons; and (2) that the legisla-
ture has only a supplementary power, i. e., it may act where

73115—39—von. m——21

312

the executive is forbidden to act, as before conviction and
in cases of treason, but insofar as the executive is given
power, it is exclusive.

It is submitted that there is no reason for denying the
legislature a fully concurrent power. In no State does the
constitution expressly say that the executive power shall be
exclusive; it merely provides that the Governor shall have
power to grant pardons, commutations, etc., subject to cer-
tain exceptions and restraints.

Historically, the Parliament of England had a concurrent
pardoning power with the crown, and a similar power has
been exercised by the legislatures in this country from time
to time, granting not only general amnesties but individual
pardons as well. Either these historical instances are wrong
or the exclusive power theory is wrong.

The power to grant amnesties is not only historically well
established, but is of the utmost political importance and
should not be denied to the legislature as a matter of policy.

As to whether the legislature may also grant individual
pardons, there seems no reason for denying this as a part
of the pardoning power, in the absence of express restric-
tion. If it is deemed undesirable to allow the legislature to
exercise such a power (and this view seems justified), this
can be, and in most States already is, taken care of by a
constitutional provision restricting the legislature to the
enactment of general laws. This is part of the modern tend-
ency to prohibit special legislation. It is not at all limited
to pardon. Thus it is felt in most States today that it is
undesirable for the legislature to legislate for local govern-
ments singly, for example. But there is no question of the
legislature’s power to do so unless restricted by a constitu-
tional prohibition against such local legislation. The same
is true of individual legislative pardons. The true rule is
that the legislature has inherent power to enact such par-
dons, and if this power is to be denied it must be by express
constitutional limitation.

CONCLUSION

It seems to be the twisted fate of the pardoning power
in the United States to be unduly extended in one direc-
tion and unduly restricted in the other. On the one side

313

the executive exercise of the power has been allowed to in-
trude itself into the penal system and usurp the functions
properly belonging to parole. On the other side, the courts
have denied to the legislature its historical power to grant
pardons and amnesties, a power which in times of political
upheavals is of the utmost importance and which preemi-
nently belongs to the legislative branch. A fuller under-
standing of the function of pardon should help us to rectify
the first mistake and resist the second.

This analysis of pardon and its administration in the
United States is presented in the hope that its findings will
make clear the true functions of pardon. It shows that
there is a great need for clarification and improvement in
the administration of pardon processes in many States.
Pardon as a legal device for seasOning justice with mercy
and for righting miscarriages of justice should be pre-
served. However, its use as a “political procedure” rather
than as a limited release procedure is to be condemned.
Under no circumstances should it be used as a substitute for
parole. All releases on condition of good behavior and
under supervision should be under the parole law and not
by way of pardon or conditional pardon.

APPENDIX A
EXTENT OF PARDON

Census statistica—The only available pardon statistics in thi
country, which are both comprehensive and accurate, are those pub
lished by the United States Bureau of the Census in its annua.
reports on prisoners. These figures give a clear picture of the relativ
importance of pardon as a release procedure.

Prior to 1937, conditional pardons have been combined with full
pardons, in the statistics compiled by the Census Bureau. However,
a special critical inspection was made of the 1937 reports, corrections
were made where needed, and separate statistics of full and condi-
tional pardons were compiled. The accompanying table is based
upon the census data concerning the prisoners in each State released
from State and Federal institutions in 1937.

One striking fact shown by this table is that full pardon accounts
for only a negligible proportion of releases. Only two-tenths of 1
percent of. the total releases were by full pardon. Even conditional
pardons, although more numerous, formed only 2.2 percent of the
releases. Full pardons and conditional pardons combined numbered
only 1,566, or 2.5 percent of the 62,783 releases covered in this table.

Another important fact brought out by this table is the wide
variation in the extent to which both full pardon and conditional
pardon are used in the various States. Idaho far exceeds all other
States in its use of pardon, with 30.2 percent released by full pardon
and 60.8 percent by conditional pardon. Full pardon releases were
given to 2.9 percent in New Mexico and 27 percent in North Dakota.
The other States had decidedly smaller percentages released by full
pardon, and in no less than 20 States and the District of Columbia,
there were no full pardon releases in 1937. In the use of conditional
pardon, Texas ranked next to Idaho, though at a far lower level,
with 25 percent of conditional pardon releases. Florida, New Mexico,
and Virginia also had comparatively high percentages of releases by
conditional pardon. In 33 States, the District of Columbia, and the
Federal institutions, there were no releases by conditional pardon in
1937.

(314)

 

315

TABLE A—Releases by pardon—Proportion of releases by full pardon
and by conditional pardon, of prisoners released from State and
Federal prisons and reformatortes, by States: Calendar year 1987

[Based upon information to be published by the U. S. Bureau of the Census, in “Prisoners
m State and Federal Prisons and Reformatories, 1937"]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Full pardon re- Conditional pardon
. eases re eases
Division and State Total
releases
Percent Percent
Number of total Number of total
United States- - - ______________________ 62, 783 155 O. 2 1. 411 2. 2
Federal InStltlltlnns 11’ 556
State Institutions _____________________ 51, 227 153 .3 1, 411 2. 8
New England:
Maine- - - - - 285 1 .4 ____________________
New Hampshire __________________ 125 1 .8 4 3. 2
Vermont 274 _ _
Massachusetts ____________________ 972 9 . 9 ....................
Rhode Island _____________________ 791
Connecticut 785 2 _ 3 ____________________
Middle Atlantic:
New ork -_ 2, 771 ________________ 11 .4
New Jersey _______________________ 1, 602 ....................................
Pennsylvania _____________________ 1, 889 4 . 2 ....................
East North Central:
mo. 2, 310 2 . 1 --
Indiana 1’ 507
Illinois 1, 199 ....................................
Michigan ......................... 2, 322 _ -
Wismnsin 2, 491 2 . 1 8 . 3
West North Central:
Minnesota ........................ 1, 104 1 . 1 ....................
Iowa _ _ - - 950
Missouri- - 1, 826 1 . 1 ....................
North Dakota -- 223 6 .7 ____________________
South Dakota ..................... 300 2 .7 ....................
Nebraska ......................... 666 2 . 3 ....................
”Kansas _--- -- 1, 237
South Atlantic:
Delaware ......................... 249
Maryland _ 2, 843
District of Columbia .............. 741 ....................
Virginia 1, 709 1 . 1 209 12. 2
West Virginia _____________________ 908 16 .8 ____________________
North Carolina ................... 1, 163 16 .4
South (lamlina 633 ..........
Georgia ........................... 0) (7) (9) (’)
Florida ............................ 1, 291 ________________ 197 15. 3
East South Central:
Kentucky _ 1, 979 ....................................
Tennessee ......................... 1, 501 ________________ 130 8. 7
Alabama ........ (3) (3) (I) 0)
Mississippi ........................ (3) (3) (’) (2)
West South Central:
Arkansas __________________________ 852 1 . 1 ____________________
Louisiana _________________________ 947 11 . 2 ____________________
Oklahoma 2,497 2 . 1 ____________________
Texas - _ - _ - - 2, 603 1 650 25. 0
Mountain:
Montana _ 274 1 - 4 -
Idaho- -_ 189 57 .2 115 60. 8
VVynming ______ 200 _ - - -
Calm-ado _ - 857 2 - 2 --------------------
New Mexico ...................... 346 10 .9 47 13. 6
Arizona- - 386
Utah 150 - _
Nevada _ _ 107 ................ 8 7. 5
Pacific:
Washington ----------------------- 622 1 . 2 25 4.0
Oregon_- - 561 ---------------- 7 1. 2
California ------------------------- 1, 990 1 . 1

 

 

 

 

 

 

1 Less than one-tenth of 1 percent.

3 No report received by the U. 8. Bureau of the Census.

316

Trend in use of pardon.—Although accurate and comparable nati
wide statistics are available only for a fairly recent period, it
apparent from the available data that in many sections of the Unit
States, the use of pardon as a release procedure has been decreasi
for many years. E. H. Sutherland, in Criminology cites ofiic
figures for several States bearing on this point~ For example, in N
Jersey releases by pardon formed 40.9 percent of the total num
released from the State prison in the decade 1850-59. The percenta
declined heavily during the next 40 years. Since 1900 less than 0
percent of New Jersey’s prison discharges have been by pardon.
Pennsylvania, the decline has gone on since 1835. The percentage
pardons to total discharges was 21.4 in the decade 1826 to 1835, b
dropped to less than 4 percent during each of the decades since 1
In Michigan, 24.6 percent of the penitentiary discharges from 18
to 1850 were by pardon. In the period from 1910 to 1916, the prop
tion of pardon releases had dropped to only one-tenth of 1 perce

The census statistics of pardon must be used with much caution f
purposes of historical comparison. However, if allowances are ma
for the defects of the census statistics of pardon, and especially f
the failure prior to 1937 to separate full conditional pardons, the
statistics do afiord useful indications as to the use of pardon as
release procedure. They show that in the country as a whole, mark
variations occur from year to year in the frequency with which pa
don is used. The census figures cover all the years from 1923
1937, except 1924, 1925, 1931, and 1932. In the other years of th
period, the percentage of pardons to total discharges varied betwe
the minimum of nine-tenths of. 1 percent in 1930, and the high poin
of 3.8 percent in 1923 and 3.3 percent in 1935. It is apparent th
since 1923 pardon has remained of slight relative importance as
release procedure, but that the picture is no longer one of continuo
decline, as was the case prior to 1920.

TABLE B—Releases by pardon—Proportion of releases by pardon to tot

releases from State and Federal prisons and reformatories by year
1923, 1936 to 1930, and 1933 to 1937 1

 

 

 

 

 

 

 

 

 

 

 

Pardon releases !
Total
Year releases Percent 0
Number total re-
leases
1923 (6 months) 3 18, 600 3 712 3
192 -- - 41, 927 1, 296 3
1927- -- 44, 208 1, 249 2
1928--- 48, 779 680 1
1929-- - 50,199 656 1
1930 58, 521 540
1933- -- 66, 495 1, 648 2
1934- - - 63, 319 1,735 2
19 5--- 62, 421 2 047 3
193g--- 64, 682 915 1
1931 - - - 62, 783 1, 566 2

 

 

 

 

1 Based upon annual census reports on prisoners.
I Including both full pardon and conditional pardon cases.
1 Figures for 1923 cover only the 6 months from January 1 to June 30.

APPENDIX B
BIBLIOGRAPHY

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318

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II. ARTICLES

Barnett, James D. “Grounds of Pardon,” 20 Yale Law Journal 131;
61 American Law Review 694.

“Executive, Legislature, and Judiciary in Pardon,” 49 Amer-
ican Law Review 684.

Berry, W. H. “The Indeterminate Sentence from the Standpoint of
the Board of. Parole,” Proceedings American Prison Association,
1913, p. 228.

Bruce, A. A. “The Power to Suspend a Criminal Sentence for an
Indefinite Period or During Good Behavior,” 6 Minnesota Law
Review 363.

Butler, P. “Contempt and Executive Power to Pardon,” 4 Notre
Dame Lawyer 443.

Carnev‘ale, E. “L’amnistia e gli speciali ad attamenti del diritto,”
35 Scuola P08. 289.

Cohen, G. B. “Is a Pardon Possible under Connecticut Law?” 5
Connecticut Bar Journal 148.

Crossley, F. B. “Executive Nullification of Judicial Decrees,” 4
Journal of Criminal Law 646.

Davis, F. H. “Function of the Pardon Board as a Part of Our
Legal System,” 4 Florida State Bar Association Law Journal 467.

Decursara, E. C. “Resultats des recherches statistiques sur les
effets de la loi d’amnestie,” 1 Bulletin Statist. Romaniei 125.

Frauenstaedt. “Das Begnadigungsrecht im Mittelalter,” Zeitschrift
fuer die gesamtte Strafrechtswissenschaft, vol. 12, p. 894.

Garofalo, R. “Criminalita e amnistia in Italia,” 259 N uov. Antol. 49.

Goodrich, J. P. “The Use and Abuse of the Power to Pardon,” 11
Journal Criminal Law 334.

Goodyear, J. M. “Executive Pardons,” 36 Dickinson Law Review 5.

Gray, Russell. “The Use and Abuse of the Pardoning Power,” 7
International Review 498.

Hale, Richard W. “Injunctions and Pardons,” 43 American Law
Review 192. . -

Hall, James P. “Constitutional Law—Separation of Powers—Power
of President to Pardon Criminal Contempt,” 20 Illinois Law Review
165.

Harker, Oliver A. “The Contempt Cases against the Labor Leaders
and the Power of the President to Pardon,” (An address delivered
before the College of Law and Department of Economics, Univer-
sity of Illinois, January 20, 1909).

Hill, David B. “The Pardoning Power,” 154 North American Re-
view 50.

 

322

Jenks, E. “The Development of Teutonic Law,” Selected Essays in
Anglo-American Legal History, vol. 1.

Lardner, R. “Executive Pardon for Contempt of Court,” 2 Rocky
Mountain Law Review 137.

Larremore, Wilbur. “Constitutional Regulation of Contempt of
Court,” 13 Harvard Law Review 615:

Lattin, N. D. “Pardoning Power in Massachusetts,” 11 Boston
University Law Review 505.

Mari, A. “Amnistia e diserzione,” 105 Review Penitentiary 461.

McCorkle, Stuart A. “Pardoning Power in Texas,” 15 Southwestern
Social Science Quarterly 218.

Miller, Justin. “The Compromise of Criminal Cases,” 1 Southern
California Law Review 1.

Neal, A., and Hager, B. “Summary of Provisions of Constitutions
and Statutes of the Several States Relating to Pardons,” 20
Journal Criminal Law 364.

Nicosia, S. “Enforceability of Prosecutor’s Agreement not to Prose-
cute,” 24 Journal Criminal Law 600.

Smithers, W. W. -“The Use of the Pardoning Power,” 52 Annals
of the American Academy of Political and Social Sciences 61.

“Nature and Limits of the Pardoning Power,” 1 Journal of
Criminal Law 549.

Stewart, W. S. “Abolish the Pardon Board,” 2 John Marshall Law
Quarterly 192.

Stoke, Harold W. “A Review of the Pardoning Power,” 16 Ken-
tucky Law Journal 34.

Taft, William Howard. “Opinion 011 the Power of the President to
Grant Amnesty,” 2O Opinions of Attorney—General 330—345.

Thornton. “Pardon and Amnesty,” 6 Criminal Law Magazine 457.

Van Hecke, T. M. “Pardons in Impeachment Cases,” 24 Michigan
Law Review 657.

Westley, George H. “The Right of Sanctuary,” 8 Green Bay 422.

Wienke, H. W. “Conviction as Second Offender When Pardoned
for First Offense,” 22 Journal Criminal Law 122.

Williston, Samuel. “Does a Pardon Blot out Guilt?” 28 Harvard
Law Review 647.

 

III. CASE NOTES

“Constitutional Law: Criminal Contempt and the Pardoning Power,”
14 Cornell Law Quarterly 484.

“Constitutional Law—Executive Powers—Restriction on Pardoning
Power,” 38 Harvard Law Review 393.

“Contempt—Criminal Contempt of Court—Power of President to
Pardon,” 38 Harvard Law Review 685.

“Contempt of Court—Criminal and Civil—Power to Pardon for Con-
tempt,” 36 Harvard Law Review 617.

“Contempt—Power of Governor to Pardon,” 24 Illinois Law Review
483.

323

“Criminal Law—Criminal Procedure—Pardon—Fraud in Procure-
ment—Habeas Corpus,” 3 Southern California Law Rev. 220.

“Criminal Law—Pardoned Offense of Convicted Criminal as Con-
viction under Habitual-Criminal Statutes,” 78 University Pennsyl-
vania Law Review 561.

“Distinction between Conditional Pardon and Parole,” 32 Yale Law
Journal 850. ‘

“Effect of Pardon on Statutory Order of Disbarment Automatically
Issued upon Conviction of Felony,” 31 Columbia Law Review 881.

“Executive Pardons of Contempts of Court,” 14 Iowa Law Review
447.

“Jurisdiction of Court of Equity to Set Aside Pardon Obtained by
Fraud,” 16 Virginia Law Review 723.

“Pardon—Effect of Fraud—Cancellation,” 36 Harvard Law Review
888.

“Pardon for Contempt,” 5 N otre Dame Lawyer 31.

“Pardon—Full Pardon Absolves an Attorney at Law from all the
Consequences of an Order of Disbarment Made under Section
3695 Code of 1930 As a Part of the Punishment for the Commission
of Crime,” 3 Mississippi Law Journal 341.

“Pardon—Power of the Governor to Pardon for Contempt of Court,”
14 Virginia Law Review 597.

“Pardon Procured by Fraud,” 30 Columbia Law Review 128.

“Pardoned Conviction as Basis for Increased Penalty for Later Con-
viction under Habitual Criminal Statutes,” 14 Minnesota Law Re-
view 293.

“Pardoning Power of the Chief Executive,” 6 Fordham Law Review
255.

"Pardons—Commutation—Parole," 21 Columbia Law Review 289.

"Pardons—Equity—Cancellation of Written Instruments for Fraud—-
Habeas Corpus Will not Lie on a Void Pardon,” 7 Minnesota Law
Review 424.

“Pardons—Fraud—Habeas Corpus—Pardon cannot be attacked in
Habeas Corpus Proceedings on Ground of Fraud,” 14 Minnesota
Law Review 421.

“Power of Governor to Pardon for Criminal Contempt,” 13 Minnesota
Law Review 506.

“Power of the President to Grant a General Pardon or Amnesty,”
8 American Law Register (N. S.) 513. .

“Public Officers—Eligibility to Office—Constitutional Disqualifica-
tion for Conviction: Effect of Pardon,” 49 Harvard Law Review
157.

“Sentence, Effect of Commutation on Right to Move for New Trial,”
31 Columbia Law Review 165.

“Status of Pardoned Offense as Prior Conviction under Habitual
Criminal Statutes,” 3 California Law Review 438.