In Montana defendants are ineligible for probation if previously imprisoned for crime in Montana or elsewhere o and the same limitation applies in Pennsylvania.1 North Dakota statutes deny the courts the right to place an offender on probation who has been previously imprisoned, but the statute is silent as to whether the provision applies merely to imprisonment in North Dakota or whether it applies to imprisonment in any State. New York prohibits probation to fourth-offenders, that is, persons who have three times previously been convicted of felony or attempt to commit felony.63 It is to be noted that while many States do not by specific statutory provision deny probation to those previously convicted of or imprisoned for crime, the probation statutes of many of the States specifically require that the probation officer in making his investigation shall particularly inquire into the defendant's previous criminal record and include the facts as to such record in the report to the court. Such is the case in Kentucky 4 and Vermont 5 and in Cumberland county in Maine." 64 While the number of offenses excepted specifically and by name in the statutes would at first consideration appear to be not so large, it must be remembered that the exclusion of crimes punishable by death or life imprisonment in many States increases this number appreciably. The penalty of death or of life imprisonment is not confined in all States to murder and treason which come first to mind in thinking of the death penalty. First-degree burglary " and rape 68 are capital offenses in some States and in recent years kidnaping has been made punishable by death or life imprisonment in many jurisdictions.“ 67 Mont. Rev. Codes Ann. (Anderson & McFarland, 1935) § 12078. 61 Pa. Stat. (Purdon, 1936) tit. 19, §§ 1051, 1081. 2 N. D. Comp. Laws Ann. (1913) §§ 10950, 10951. 3 N. Y. Penal Law §§ 2188, 1942. Ky. Stat. (Carroll, 1936) § 979b-6. 65 Vt. Pub. Laws (1933) § 8872. Me. Rev. Stat. (1930) ch. 147, § 12. 67 See, e. g., N. C. Code Ann. (Michie, 1935) § 4233. Del. Rev. Code (1935) § 5166; N. C. Code Ann. (Michie, 1935) § 4204. 18 U. S. C. § 408a (1934); Del. Rev. Code (1935) § 5174; Iowa Code (1935) 12983. About two-thirds of the States inflict the death penalty or life imprisonment for kidnapping. See Note (1936) 26 J. Crim. L. 762. DESIRABILITY OF STATUTORY RESTRICTIONS ON 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 section of this chapter are based upon the premise that some defendants cannot be safely released on probation. Undoubtedly, it is true that "drug addicts, persistent alcoholics, and feeble-minded prisoners with strongly developed criminal habits are not easily amenable to probationary treatment. 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." 70 However, the statutory restrictions on eligibility for probation are not confined to drug 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 restrictions seem to rest on the assumption that offenders who have committed certain types of crimes are not amenable to probationary treatment. Taken alone, the specific offense committed is an insufficient criterion for determining whether a prisoner 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 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 TO 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 upon legislators. See Towne, Judicial Discretion Versus Legislation in Determining Defendants Suitable for Probation (1912) 2 J. Crim. L. 666. 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 probation persons with records of prior criminal activity direct attention to the individual rather than the offense, it should not be assumed that the fact of recidivism, as defined and limited by these provisions, is a reliable test for denying probation treatment. The majority of such restrictions are aimed at offenders who have previously been convicted of or imprisoned for felony. Only a few States deny probation to persons whose records reveal a prior history of misdemeanor convictions. The statutory distinctions between felonies and misdemeanors are frequently arbitrary and artificial. It seems questionable, therefore to focus attention upon persons with prior felony convictions and to ignore persistent misdemeanants. When the term "recidivist" is defined to include all persons who have served at least one period of incarceration in any penal or correctional institution, whether for felony or misdemeanor, there is some evidence that recidivists do not respond so favorably to probation as do offenders who have no known record of previous criminality. The Survey analysis of recidivism and outcome on probation indicates that first offenders have better behavior records during the probation period than second and subsequent offenders. However, the fact that "repeaters" are less likely to respond to probationary treatment does not warrant the arbitrary exclusion by statute of every person with a previous criminal history. Even under present methods of selection and supervision many recidivists have good behavior records while on probation. With more discriminating selection and intensive supervision, it should be possible to segregate the recidivists who are good probation risks. Although recidivism should be considered, it should not be considered to the exclusion of many other factors or such as employment, age, marital status, and individual characteristics of the offender. 72 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 unknown, and although a desirable result may be achieved in the particular case, 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 probation purely on the basis of the crime committed. Moreover, the ideas of punishment, vindictiveness, and revenge, still current in the philosophy of the purpose of the criminal law, attach more strongly to the offenses which are commonly found in the classes of crime for which probation may not be granted." 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 solution to the eligibility problem 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 and with the assurance that thorough supervision will be maintained over the probationer. The eligibility of offenders for probation should be based upon the findings of trained and qualified probation officers equipped to investigate offenders, rather than upon arbitrary and unrealistic statutory restrictions. 12 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 discretion to judges in applying a system which mistakenly was thought to be one of leniency. These laws [forbidding use of probation after previous conviction or imprisonment] were enacted on theoretical grounds to increase the deterrent fear of punishment rather than because of shown abuses of probation." CHAPTER V THE SELECTIVE PROCESS: LAW AND THEORY OF PROBATION INVESTIGATION IMPORTANCE OF INVESTIGATION FOR PROBATION However greatly statutory restrictions on eligibility have been deplored and whatever their ultimate merit may prove to be, their importance in the selective process is far outweighed by the influence which presentence investigation, or the lack of it, may exert on the general success of the probationary treatment of criminals. It may be that legislation denying probation to various classes of offenders solely on the basis of the name and type of their present offense or on the mere numerical count of previous convictions will exert a tremendous influence on final success in coping with the problem of crime. An approach from this angle would necessitate a consideration of the ultimate possible and probable results of a penological process which prevents the social salvage of large numbers of wrongdoers without regard for more basic considerations than the technical legal name of the offense of which convicted or the names and numbers of prisons which were formerly the asylums of the defendant. These last considerations are necessary in a study looking to an eventual recodification and reorganization of criminal laws and administration. The present study must concern itself primarily with an examination of present probation practices and needs, needs that can to a large extent be fulfilled within the existing legislative framework. Here the concrete fact of investigation processes looms far larger than the highly controversial subject of legislative restrictions as to offense, previous convictions, and imprisonment. Before probation stretches forth a hand to enlarge its jurisdiction it must examine the comparative success and efficiency with which it now operates within the field already occupied. Until those furrows have been well ploughed any |