the collection of substantive data. In particular, appreciation is expressed to Mr. Irving W. Halpern, chief probation officer of the court of general sessions, New York City, for making available unpublished materials on probation prepared by him and the members of his staff.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, and to Mr. Ronald Beattie, of the Bureau of the Census, who rendered invaluable assistance in the preparation of the statistical phases of the study special acknowledgment is due. Mr. Richard E. Chappell, Supervisor of the Federal Probation Service, who read the manuscript offered many valuable criticisms. Acknowledgment is also extended to Miss Helen Fuller, Mr. Jacob Master, and Mrs. Lois Baker, who assisted in assembling the materials. To all those others who in many ways contributed help and encouragement we express our deep appreciation. WAYNE L. MORSE, Editor. IVAR PETERSON, Associate 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. 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."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 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 ▼. 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. |