sary funds and personnel to carry them into effect become available. But in far too many courts, the practice is to place unreasonable and ill-founded reliance upon the prosecutor's office and the efforts of local peace officers to secure needed presentence information. There is also some evidence that even in jurisdictions where the law requires investigation before sentence this is not conducted in all

cases.

For the most part the faults and insufficiencies of investigative practices cannot be laid at the door of inadequate or wrong legislation. The part which statutory provisions can play in this phase of probation work is after all extremely limited. No doubt the enactment of provisions requiring minimum periods of one week to ten days for the prosecution of an investigation might work some amelioration in the practices of many jurisdictions. However, a good investigation service can be attained within the limits of a general probation law which makes no specific or detailed requirements as to investigation. This has proved true in Pennsylvania where, although the statute is silent as to investigation, some of the local courts have evolved a rather complete service in this field. Again, in the case of the Federal probation service, this fact has been demonstrated. The Federal probation act makes only a general requirement as to investigation: That the officer shall investigate "any case referred to him for investigation by the court in which he is serving and to report thereon to the court."58 The practice is, however, to conduct presentence investigations in most cases and at least during the last five years there has been an appreciable increase in the number of such investigations made and a decided improvement in the quality and completeness of the report presented.

It is believed that, with a few scattered exceptions, existing legislation with regard to this phase of probation is adequate. Necessary improvements will result more certainly from continued education of the bench to the need and value of this service, an increase and improvement in the personnel of probation departments and augmentation of the funds made available for the work.

69 18 U. S. C. § 727 (1934).

CHAPTER VII

THE CONTROL OF PROBATIONERS: CONDITIONS OF RELEASE

THE POWER TO PRESCRIBE CONDITIONS

Nature of power. The power to fix the terms and conditions under which probation must be served is, in most States, vested in the courts, to be exercised by the court either alone or in conjunction with an administrative agency in charge of the State's probation system. The extent of the court's power varies from State to State and includes all possible ways of dealing with the subject. At one extreme is Utah where the court apparently possesses the sole and complete authority to determine the conditions under which probation is to be served; at the other is Maryland where the circuit and criminal courts may impose only those conditions which deal with matters enumerated in the probation statute.2

1

In some States the statutes contain a mere grant of power to the courts to prescribe and impose conditions in granting probation without any further specification as to what such conditions may be. In such States the extent of the courts' discretion in particular cases will depend upon the attitudes of the appellate courts of the State as to the propriety of the particular terms sought to be imposed. In Georgia the court may allow probation "in such manner and on such terms as it may see fit." There it has been held within the court's discretion to impose the typical and usual conditions that the probationer indulge in no vicious conduct, avoid disreputable places and persons, report to the probation officer, and not leave the jurisdiction of the

1 Utah Rev. Stat. (1935) § 105-36-17.

Md. Code Ann. (Bagby, Supp. 1929) art. 27, § 577, Kelley v. State, 151 Md. 87, 133 Atl. 899 (1926); Klein v. State, 151 Md. 484, 135 Atl. 591 (1926).

Ariz. Rev. Code Ann. (Struckmeyer, 1928) § 5105; D. C. Code (1929) title 6, 425; Ga. Code (1933) § 2702; Minn. Stat. (Mason, Supp. 1936) § 9937; Utah Rev. Stat. Ann. (1933) § 105-36-17.

Ga. Code (1933) § 27-2702.

court without permission.

6

In addition certain less usual conditions have been imposed by Georgia courts and held valid as in the case of a condition that the probationer not drive an automobile during the period of sentence or of an order included in the sentence that "defendant during his probation is to make no remarks against the sheriff of Dooly County or any other witness that testified against him." A condition that the probationer leave Atlanta and go to Alabama has also been held valid. North Dakota conditions are within the discretion of the court, except that persons punishable by imprisonment in the penitentiary must also meet the regulations of the board of administration."

7

In

In other States the statutes specify certain conditions which the court may impose, but these are not exclusive of any others which the court in its discretion may deem desirable.10 In California the court may grant probation on "such terms and conditions as it shall determine." 11 As a condition of probation the defendant may be imprisoned in the county jail for a period not exceeding the maximum term fixed by law; or defendant may be placed in road camps or jail farms, where they are available.12 The con

5 Dickson v. Dunway, 162 Ga. 210, 132 S. E. 911 (1926); Shamblin v. Penn, 148 Ga. 592, 97 S. E. 520 (1918); Jones v. State, 27 Ga. App. 631, 110 S. E. 33 (1921).

Jones v. State, 27 Ga. App. 631 (1921).

Morris v. State, 44 Ga. App. 765, 162 S. E. 879 (1932).

8 Roberts v. Lowry, 160 Ga. 494, 128 S. E. 746 (1925). But it was said in this case that probation served outside the State would not be a "legal probationary discharge."

N. D. Comp. Laws Ann. (1913) §§ 10952, 10953, 10954.

10 Ark. Dig. Stat. (Crawford & Moses, Supp. 1927) § 3229a; Cal. Pen. Code (Deering, 1937) § 1203.1; Conn. Gen. Stat. (1930) § § 6518, 6519, except mandatory provisions as to prostitutes, id. § 6226; Ind. Stat. Ann. (Burns, 1933) 9-2210, except for mandatory conditions in nonsupport cases, id. § 10-1406; Ky. Stat. (Carroll, 1936) § 979b-7; Mass. Gen. Laws (1932) ch. 273, § § 3, 5, 13, 16, 18, 22, ch. 276, §§ 85, 87, 92, ch. 279 § § 1, 1A; Neb. Comp. Stat. (1929) § § 29-2212, 29–2215; N. J. Laws 1929, ch. 156, § 3; N. Y. Code Cr. Proc. § § 483 (2), 483 (3), 932, except mandatory conditions as to prostitutes, id. § 891-a; N. C. Laws 1937, ch. 132, except mandatory conditions as to prostitutes, N. C. Code Ann. (Michie, 1935) § 4362; Ohio Code Ann. (Throckmorton, 1936) § § 13452-1, 13452-4, 13452-8; Ore. Code Ann. (Supp. 1935) § 13-1146; Pa. Stat. (Purdon, 1936) title 19, § 1052; R. I. Gen. Laws (1923) ch. 403; Vt. Pub. Laws (1933) § 8873, except mandatory conditions as to prostitutes, id. § § 8616, 8617; Va. Code (Michie, 1936) § 1922b; W. Va. Code Ann. (Michie, Supp. 1933) § 6134; 18 U. S. C. § 724 (1934).

11 Cal. Pen. Code (Deering, 1937) § 1203.1.

12 Ibid.

ditions most commonly enumerated for the guidance of the court in this type of statute are that the probationer must: avoid injurious or vicious habits; avoid persons or places of disreputable or harmful character; report to the probation officer as directed; permit the probation officer to visit at his home or elsewhere; work faithfully at suitable employment as far as possible; remain within a specified area; pay a fine in one or several sums as directed by the court; make reparation or restitution to the aggrieved party for the damage or loss caused by his offense, in an amount determined by the court; support his dependents.13 In many of the States the only conditions suggested by the statutes are those relating to probation to permit payment of a fine or to make restitution to injured parties.1

In many States the power to prescribe and impose terms and conditions has been granted to the courts by statute, but the task of prescribing a set of rules for the guidance of courts engaged in fixing the terms of probation has been undertaken by local agencies or taken care of in the rules of court of the particular judicial district.15 Such is the case in Colorado where rules of court cover the subject in certain districts and in Delaware where the same procedure has been followed with regard to Wilmington.' 16 In Maine a special statute regulates probation in Cumberland County under which statute probation may be granted upon any conditions; 17 apparently, courts elsewhere in the State of Maine possess the same freedom of choice as to conditions, although the statute does not in terms grant this power.

A number of the States have by statute set up certain terms and conditions which courts must impose in granting

13 N. C. Laws 1937, ch. 132; see also Ill. Stat. Ann. (Jones, 1936) §§ 37-774, 37-775; Ky. Stat. (Caroll, 1936) § 979b-7; Minn. Stat. (Mason, Supp. 1936) 9937; Neb. Comp. Stat. (1929) § 29-2212; N. J. Laws 1929, ch. 156, § 3; Ore. Code Ann. (Supp. 1935) § 13-1146.

14 Maine, except Cumberland County, Me. Priv. Laws 1933, ch. 231; Me. Rev. Stat. (1930) ch. 147, § 22; id. ch. 346, § 3. Massachusetts, payment of fine, payment of other moneys, support, restitution or reparation of civil damages, Mass. Gen. Laws (1932) ch. 279, § 1, as amended, § 1A, ch. 273, § § 3, 5, 13, 16, 18, 22, ch. 276, § 92; Ohio, Ohio Code Ann. (Throckmorton, 1936) 13451-8; Pennsylvania, Pa. Stat. (Purdon, 1936) title 19, § 1052.

15 Colorado, see Rules of Court, 2d, 3d, 7th, 9th, 10th, 14th Districts; Delaware, Rules of Court of General Sessions, Wilmington I, § § 1, 6, 7.

10 Me. Priv. and Spec. Laws 1905, ch. 346. § 5.

17 Me. Rev. Stat. (1930) ch. 147, § 12.

probation. However, in many of these States, the requirement of imposition of such conditions does not preclude the court from prescribing and imposing additional terms and conditions which it may deem to be suitable or necessary in a particular case. The rules of local courts in Colorado mentioned above set up many mandatory conditions.18 In Connecticut persons convicted of prostitution and having venereal disease must be placed on probation only upon such terms as will insure medical treatment; 19 this provision is also to be found in the laws of New York,20 North Carolina,21 and Vermont.22 The same States 28 require that female probationers must be placed under the supervision of a woman officer only.24 Illinois 25 and Michigan 26 make mandatory, certain of the conditions generally imposed by courts everywhere. In Kansas bonds are required of persons admitted to probation except in the district and common pleas courts where the bond is compulsory only as to persons convicted of felonies." In Tennessee a court may not grant probation to a convict applying for it until he has secured or paid all of the costs accrued at the instance of the State in the action against him.28

Another method of fixing the terms and conditions of probation is that found in Wisconsin,20 where the court has no power over adult felons placed on probation, except in Milwaukee County, and the board applies the same terms and conditions to probationers in its care as it does to parolees. However, in addition to the terms prescribed by the board the court may require the probationer to pay the costs or to make restitution.30 In States where the power to grant probation is not possessed solely by the courts but may be

18 Supra note 15.

19 Conn. Gen. Stat. (1930) § 6226.

20 N. Y. Code Cr. Proc. § 891-a.

21 N. C. Code Ann. (Michie, 1935) § 4362.

22 Vt. Pub. Laws (1933) § 8616.

23 Supra, notes 19, 20, 21, 22.

24 Idaho Code Ann. (1932) § 19-2503.

25 Ill. Stat. Ann. (Jones, 1936) §§ 37-774, 37-775.

2 Mich. Comp. Laws (Mason, Supp. 1935) § 17373.

27 Kan. Gen. Stat. Ann. (1935) § 62-2205, State v. Harris, 116 Kan. 387, 226 Pac. 716 (1924).

28 Tenn. Code Ann. (Williams, 1934) § 11802.1.

20 Wis. Stat. (1935) § 57.02. And see report on Parole.

30 Id. § 57.01 (1)