CHAPTER IV

THE SELECTIVE PROCESS-ELIGIBILITY FOR

PROBATION

STATUTORY PROVISIONS RELATING TO ELIGIBILITY

The eligibility of offenders for probation is determined by statutory provision in most of the States. However, the statutory regulations pertaining to the selection of probationers 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 wisdom and sound judgment of their courts, while others have surrounded their judges with a mass of restrictive and particular exceptions, allowing little latitude to the courts in the matter. The desirability of such restrictions will be considered 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 particular instance lies with the court. This is true in almost all States with the exception of Iowa and Missouri. In Iowa there exists a dual system of authority and control of probationers; the State parole board, as well as the courts, may order the release of persons on "parole" prior to commitment. 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

1 Comm. v. Arbach, 113 Pa. Super. 137, 172 Atl. 311 (1934).

2 Iowa Code (1935) § 3788, 3800.

ing attorney. Generally, the grant of power to the courts is phrased in the statutes, at least in the initial sections, in permissive or directory terms. Almost uniformly the statutes set forth certain general, basic elements on which the courts must satisfy themselves before granting probation to an offender. These general provisions occur even in those States where judges possess the widest discretion in determining the question of eligibility.

As a rule the considerations outlined in the statutes are inherent in the probation concept itself and include merely such general admonitions to the courts as that there shall be circumstances in mitigation of punishment, that the ends of justice, the good of the community and of the defendant, shall be subserved by the court's action, and that there shall be a prospect of reform in the offender. A typical provision is that of California, that "if it shall determine that there are circumstances in mitigation of punishment prescribed by law, or that the ends of justice would be subserved by granting probation to the defendant, the court shall have power in its discretion to place the defendant on probation as hereinafter provided * * *" A similar provision

is found in the Minnesota law to the effect that "whenever the court is of the opinion that by reason of the character of the person or the facts and circumstances of his case, the welfare of society does not require that he should suffer the penalty imposed by law, so long as he is thereafter of good behavior."

The question of the extent to which such general statutory directions are binding on the judges has seldom been raised. However, in Illinois, in construing a provision which reads, "if it shall appear to the satisfaction of the court that there is reasonable ground to expect that the defendant may be reformed and that the interests of society shall be subserved," the court held that satisfaction

3 Mo. Stat. Ann. (Vernon, 1932) §§ 8518, 14825-14829, 14830-14836. See, e. g., D. C. Code (1929) tit. 6, § 425; N. D. Comp. Laws Ann. (1913) 10950; Ohio Code Ann. (Throckmorton, 1936) § 13452-1; Ore. Code. Ann. (Supp. 1935) § 13-1144; 18 U. S. C. § 724 (1934).

5 Cal. Pen. Code (Deering, 1937) § 1203.

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

Ill. Stat. Ann. (Jones, 1936) § 37-772.

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 suffice. The court must be satisfied by the report of the probation officer and by other evidence that both grounds for release on probation are present."

Another general rule laid down by legislatures in a majority of States is the requirement that guilt be ascertained, either by verdict or plea of guilty, before the accused is eligible for probation. In a few jurisdictions this requirement 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 probation.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 conviction. Such jurisdiction is not extended to district and municipal courts in Massachusetts which may exercise probationary powers only after conviction.12 Rhode Island courts possess some power provisionally to release defendants on probation before sentence.13 The only other States

People v. Penn. 302 Ill. 488, 493, 135 N. E. 92, 95 (1922).

D. 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. (Williams, 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.

11 Mass. Gen. Laws (1932) ch. 276, § 87.

12 Ibid.

13 R. I. Acts and Resolves 1932, ch. 1930, § 1 (3).

whose statutes give evidence of a power in the courts to grant probation before a determination of guilt has been arrived at are Kentucky, where again probation is extended to any person "charged with crime," excepting, of course, certain enumerated offenses,14 and Maine where in one county, in certain instances, one accused of a misdemeanor may receive probation without arraignment.15

Whether it would be desirable for other jurisdictions to follow the example of Massachusetts and a few other States and permit defendants to be placed on probation before there has been any determination of guilt is questionable. In the earlier writings on probation some regret was expressed that this phase of the Massachusetts procedure had been discarded by other States in passing probation legislation. The advantages of using the probation treatment prior to conviction are generally all on the side of the offender. Accused persons who are willing to forego a determination of the question of guilt and to accept instead a period of probation avoid altogether the stigma which attaches to conviction and may retain whatever civil rights they would have forfeited as a result of their conviction for crime.

For the State and society the advantages are not so clearly defined. Of course if probation is successfully concluded, the State may be spared altogether the expense of a criminal trial, but conversely, if probation proves unsuccessful and there arises the need for revocation and subsequent incarceration, the State will be at a serious disadvantage. In order to mete out a just punishment to the offender there would have to be at this point a formal determination of guilt, and if the accused should plead not guilty, the State would have some difficulty in securing a jury conviction after a long lapse of time has scattered its witnesses and caused their memory of events to grow dim.

Moreover, the mechanics of such a procedure are highly illogical, for it would seem unquestionable that in all probation cases, when the moment for revocation arrives there should be no necessity for a trial before the execution of a

14 Ky. Stat. (Carroll, 1936) § 979b-5.

15 Me. Priv. and Spec. Laws 1905, ch. 346, 36.

sentence of penal servitude can be ordered. Again, probation 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 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 selection 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.16

A consideration of the excepted crimes falling within these groups leads to the conclusion that, regardless of the wisdom of the policy behind thus limiting judicial discretion, the legislatures have not in all cases merely compiled meaningless 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 scattered 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, robbery, 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

The classification adopted is our own and the creation of the categories under which offenses have been classified was dictated primarily by convenience.