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

FURTHER ADOPTION OF PROBATION STATUTES

Although probation had been developing in Massachusetts over a long period of years and was finally enacted into law there in a form which was to set the pattern for all subsequent development in the field, before the year 1900 only six States had adopted probation legislation, and of these only three dealt with adult probation.86 It is, therefore, for the most part in the United States, a relatively new method of dealing with criminals, having grown up actually over a period of less than 40 years. Within that period its development has been more or less sporadic and at times progress has been disappointingly slow.

It is also to be noted that although in those New England States where probation was first adopted adult probation had been the rule, yet for many years its acceptance and application elsewhere lagged far behind that of juvenile probation. By 1917 only Wyoming had no provision for juvenile probation. 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, and 1 in 1931, 1 in 1934, and 2 in 1937, leaving 12 States still without any type of adult probation law.87 "The States which had the highest percentage of urban population developed probation first and it spread gradually to the more rural States. The number of probation officers in the United States increased from about 2,000 in 1918 to about 4,800 in 1931. The increase in the number of probation officers has been greater in urban than in rural communities." 88 By 1937 probation legislation in one form or another existed in 36 States, the District of Columbia, and

83 Parsons, op. cit. supra note 76, at 695-696.

B6 Penal Institutions, Probation and Parole (1931) 123, Report No. 9 of the National Commission on Law Observance and Enforcement.

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

88 Id at 1156.

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 statutes1

The dates given in this table have been selected from the Survey digests of the probation legislation 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 fact that it is sometimes difficult 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 selection of dates we have been guided by the principle that in this study we are concerned only with adult probation and, therefore, have in all cases selected statutes that have reference to adult offenders.

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 probationary powers without specific direction in the acts of Congress. 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

Grinnell, supra note 56, at 591.

offenders at large on unauthorized Federal suspensions were pardoned by the President on the Court's recommendation. From the date of Ex parte United States,00 1916, until 1925, Federal courts were unable to suspend sentences except temporarily. Despite many efforts, a law on the subject was not obtained until 1925. It is under this law, with a few minor amendments that the present Federal probation now operates.9

91

Contemporaneously with the extension of the probation system into most of the States, there occurred a general increase in the enactment of suspension of sentence laws. One reason for this increase of legislation on the subject was undoubtedly the desire of law-making bodies to sanction a practice which had long been followed or attempted to be followed by their courts but which had been found to be unwarranted in the higher courts, either on grounds of lack of common law authority or of unconstitutionality. An additional consideration may have influenced legislators in the passage of many such statutes. It was to be expected that the Massachusetts probation system, having been recognized as a salutary new departure in the field of penology, would exert a wide influence. Many legislatures, aware of the worth of a probation system but timorous as yet of going all the way in adopting probation statutes, may have hoped that they could achieve the benefits of the Massachusetts system by half measures. Accordingly, statutes were passed in the belief that in authorizing courts to save defendants from the disgrace of incarceration in certain instances, some of the beneficial features of probation were being extended.

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

20 Ex parte United States, 242 U. S. 27 (1916).

01 18 U. S. C. § 724 et seq. (1934).

belief that their task was merely to remove certain restrictions 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 probation 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."2

TABLE II.-States having suspension of sentence statutes only

1 No statute, but common law suspension of imposition of sentence allowed. In desertion and nonsupport cases only, but of doubtful constitutionality. See State v. Moran, 43 Nev. 150, 182 Pac. 927 (1919).

* 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 probation 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 provisions of the statutes, like those authorizing release from imprisonment 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 classification 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.

sembly defines the punishments which may be imposed and it
may gather around those punishments such incidents or con-
ditions as it may deem wise.
So it is that every

sentence to imprisonment for a term carries with it and has incorporated into it by necessary implication those provisions whose operation may result in a parole or stay of execution with a probation commitment, that result does not have its source in an exercise of the pardoning power. It comes in the due course of the operation of the sentence under the provisions of law which prescribe what it may be and its incidents." Reference has already been made to the Alabama general probation law passed in 1931 which was declared unconstitutional by the Alabama supreme court in 1935, as an invasion of the Governor's exclusive power to grant commutations and pardons. The court attempted to distinguish decisions in other States upholding such statutes on the ground that other State constitutions do not vest the power to parole in the Governor as is the case in Alabama."*

In the 40 years that have passed since probation systems were first adopted outside the boundaries of New England the growth has been rapid and often haphazard. In the course of those years the problems and the emphasis in the feld have undergone an appreciable change. While, in the early years of this century, the battle was one for the extension of the system and the acceptance of the idea, today, workers in probation are striving to build up and improve organization and administration, to secure direction and standards for the service and to coordinate the work. Today two-thirds of our States have enacted probation legislation, in one form or another, but "more than one-half of them have narrowly prescribed its application or curtailed its administration by arbitrary limitations not contemplated by the founders of the system, or by not allowing the appointment of a sufficient number of probation officers, or both. Generally speaking, the States that have secured the most complete administration of probation, namely: Massachusetts, New York, Connecticut, Vermont, Rhode Island,

For a

Belden v. Hugo, 88 Conn. 500, 507, 91 Atl. 369, 371 (1914). similar treatment of probation as a form of sentence see Bruce, The Power to Suspend a Criminal Sentence for an Indefinite Period or During Good Behavior (1922) 6 Minn. L. R. 363.

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