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. Although it has had a statutory development of almost 60 years and before that had undergone a long period of evolution in the courts, it is still the most modern concept in the administration of criminal justice. That confusion exists as to its nature and effect is apparent in cases and statutes1 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 atmosphere of prisons and reformatories.

It has been referred to by one author as a type of "community treatment." 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 himself 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." The accomplishment of its purpose of rehabilitation will always depend upon the degree of efficiency with which its individual components work. The successful application of the probation method presupposes an adequate investigation

1 Montgomery v. 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.

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

into the facts of the defendant's environment, character, and previous record; a wise selection by the courts of offenders capable of benefiting by the treatment; and a zealous but sympathetic prosecution of his duties by the supervisory officer.

Very frequently probation is confused with parole. There are certain similarities between the two systems it is true, but the underlying difference is that parole presupposes a preliminary period of incarceration of the offender before his release under supervision. The probationer, if he passes successfully through the period of supervision set by the court, need never undergo imprisonment at all. The parolee, on the other hand, especially in States where both systems are in use, is often an offender who at the time of his sentence was not deemed by the court to be capable of rehabilitation if returned immediately to society but more likely to succeed after undergoing an initial term of imprisonment and institutional treatment.

However, it must be pointed out that while probation is almost universally a matter of judicial discretion, parole, in most instances, is not so intimately connected with the courts. Parole is generally administered by separate boards set up for the purpose, and while a judge may recommend that a prisoner whom he has sentenced be later admitted to parole, his recommendation is not binding and may carry no more weight than the recommendations of the prison authorities who have control of the offender's person.

While the tendency to confuse probation and pardon is not so widespread, it seems worthwhile here to distinguish between the two. A probationer is still a convicted offender under the control of the court and subject, for a certain period, to imprisonment or other punishment by the court for violation of the conditions it imposed in granting probation. Pardons are of two kinds, full and conditional. One who has received a full pardon has become again a free member of the community without further penal liability for the wrong pardoned. Conditional pardon is somewhat analogous to parole, particularly when granted after a period of imprisonment.

Although there is conflict as to whether the granting of a full pardon blots out guilt completely, it frequently operates so as to restore the civil rights that have been forfeited upon conviction and imprisonment. Pardon is usually considered 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 ex officio. Unlike probation which generally comes before and is regarded as a substitute for incarceration, and parole which usually follows partial execution of a sentence of imprisonment, a pardon may be granted at any time, either before, after, or during imprisonment, 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 commutation, although this power is in some instances exercised by the courts. Commutation consists of the substitution of a lesser punishment for that which was originally imposed, such as the translation of a sentence of imprisonment into one for the payment of a fine or a reduction of the term of incarceration. It is made use of generally when new evidence or circumstances later appear which make the original sentence seem oppressive.

Probation was originally an outgrowth of suspended sentences 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 generally 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 specifically authorizing courts of general criminal jurisdiction to

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

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

Benefit of clergy.-The benefit of clergy furnishes an interesting instance of a device whereby certain persons were permitted to escape the severe punishments of the early English common law. As Holdsworth aptly summarizes this institution, it was "in the earlier part of the Middle Ages, the privilege of the ordained clerk accused of felony; but it was ceasing to be merely this at the latter part of the mediaeval period; and it only secured the prolongation of its life until the nineteenth century by becoming a clumsy set of rules which operated in favor of all criminals to mitigate in certain cases the severity of the criminal law."

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

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

Chute, The Extension of Probation in Criminal Courts (1928) 136 Ann. Am. Acad. 136 at 137. "In fact the power of courts to suspend sentence, upon which the probation system was based, had long been established in the English common law as a necessary right of the Crown and the State to offset the rigors of an overrigid and severe penal law." Chute, The Progress of Probation and Social Treatment in the Courts (1933) 24 J. Crim. L. 60 at 62. "Under the common law of England there grew up various legal devices for avoiding the rigid and severe punishment for crime which then characterized and still characterizes our penal laws. Chief among these was the suspension of sentence or the postponing of judgment on the part of the court, the offender being released on good behavior. The power of the court to suspend sentence indefinitely has been held as an inherent right of the courts in many of our States."

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

the list of crimes to which benefit of clergy could be applied. 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 in the United States recognized the benefit of clergy, both before and after it had been abolished in England. But it is doubtful whether this device, as it existed in the American colonies, had any particular influence upon the later development of suspension of sentence.R

Judicial reprieve.-Since at the common law new trials or appeals to another court were not possible, there grew up a judicial practice of avoiding the execution of a sentence known as reprieve. Blackstone describes it in the following language: "A reprieve, from reprendre, to take back, is the withdrawing of a sentence for an interval of time; whereby the execution is suspended. This may be, first, ex arbitrio judicis (at the will of the judge); either before or after judgment; as where the judge is not satisfied with the verdict, or the evidence is suspicious, or the indictment is insufficient, or he is doubtful whether the offence be within clergy; or sometimes if it be a small felony, or any favourable circumstances appear in the criminal's character, in order to give room to apply to the Crown for either an absolute or conditional pardon. These arbitrary reprieves may be granted or taken off by the justices of gaol delivery, although their session be finished, and their commission expired: but this rather by common usage, than of strict right." But Blackstone makes it clear that a reprieve was only of a temporary character.

17 and 8 Geo. IV, ch. 28 (1927). See Holdsworth, op. cit., supra note 6, at 294 et seq. Another device for escaping punishment which featured the criminal law of the Middle Ages was sanctuary and abjuration. By fleeing to a place of sanctuary before trial, the criminal could gain partial immunity from punishment; however, it was necessary for him to "abjure the kingdom" under pain of immediate punishment upon return to England without Royal permission. This institution was abolished in 1623-24. Holdsworth, op. cit. supra note 6, at 303 et seq.

For an article on benefit of clergy in the United States, discussing numerous cases, see White, Benefit of Clergy (1912) 46 Am. L. Rev. 78.

4 Bl. Comm. *394.