It is not clear whether the Federal courts may impose a condition of jail imprisonment as a term of the probation order. In United States v. Murray,214 it was held that after service of sentence had begun, probation could not be granted, on the theory that confusion and overlapping of the release procedures of pardon, parole, and probation would result if the probation law were interpreted otherwise. However, the Federal parole law does not apply to persons receiving short jail sentences, and in such cases the possibility of the confusion of release procedures is remote.215 One district court has held that by expressly retaining jurisdiction over the case, probation may be granted after partial service of a jail sentence.216 Conditions of hospitalization may properly be imposed by Federal courts in some cases. Where probation is granted a drug addict it may be on condition that he submit to treatment at a United States narcotic farm until discharged therefrom as cured.217 In a sense such a condition is in effect a condition of imprisonment, since the probationer is confined in a place designed primarily for the treatment of prisoners serving out their sentences. It is not clear whether the character of the institution to which a defendant is confined determines the validity of a condition of hospitalization in jurisdictions where conditions of imprisonment may be invalid in the absence of a statutory authorization. Undoubtedly the courts may in some instances feel that a short period of confinement may be the most beneficial treatment for a particular offender. However, the court may not wish the confinement to continue for a period equal to that required of convicts before they become eligible for parole. Frequently the parole statutes require at least onethird of the sentence to be served before the inmate may be released on parole.218 Moreover, the judge may not wish to lose control over the particular case, which would be the result if a final commitment to an institution were made. 214 275 U. S. 347 (1928). 218 See Archer v. Snook, 10 F. (2d) 567 (D. C. Ga. 1926). 218 United States v. Wittmyer, 16 F. Supp. 1000 (D. C. Nev. 1936). 217 Supra note 165. 218 See Parole Volume. Therefore, a condition of jail imprisonment for a relatively short period may in some cases supply the answer to the court's dilemma. It may be that such considerations influenced the legislatures of California and Michigan to authorize their courts to make jail confinement a condition of probation. Even though the court does not impose such a condition in the formal order of probation, in actual practice the desired result may be achieved. The period during which the defendant is confined while awaiting trial, if he has not been released on bail, may be a sufficient taste of imprisonment. Also, where the court has the power to continue a case for sentence for a limited period following conviction, the same result may be achieved. Conditions in special cases.-For many years in North Carolina the only adult probation for which there was any provision in the statutes, was a procedure for the release of persons convicted of second degree prostitution.219 Enactment of the 1937 general adult probation law in North Carolina did not affect the older statute which permits defendants convicted of the crime to be placed on probation "in the care of a probation officer designated by law, or theretofore appointed by the court." 220 Girls and women so released must be under the care of a woman officer. 221 The statute further provides that probation may be granted a person infected with a venereal disease only on such terms and conditions as will insure medical treatment therefor and prevent the spread of the disease.222 In Connecticut,228 New York,224 and Vermont 225 there are similar provisions with regard to the supervision of women convicted of prostitution, and with regard to the medical treatment of those infected with a venereal disease. Written notice and acceptance.-The Massachusetts law requires the probation officer to give every person released 210 Second degree prostitution under the North Carolina law means a first violation of the prostitution statutes. N. C. Code Ann. (Michie, 1935) § 4361. 220 N. C. Code Ann. (Michie, 4935) § 4362. 221 Ibid. 222 Ibid. 223 Conn. Gen. Stat. (1930) § 6226. 224 N. Y. Code Cr. Proc. § 891-a. 225 Vt. Pub. Laws (1933) §§ 8616, 8617. on probation a written statement of the terms and conditions of his release.226 Apparently this is only directory and for the purpose of obviating any uncertainties as to the terms on the probationer's part and it can be changed at the will of the court.227 It is doubtful whether, as a matter of law, a defendant can refuse probation. However, there is some language in Marks v. Wentworth 228 which indicates that Massachusetts courts have some feeling that a defendant may insist on a final disposition of his case and refuse to have the action against him continued for an indefinite period. It is true that the court in Marks v. Wentworth was concerned particularly with the Massachusetts practice of "filing" criminal cases but the case does furnish some ground for believing that the question of a defendant's power to refuse probation and insist on commitment has not been finally settled in Massachusetts. In the Wentworth case the court said that the "court, with the consent of the defendant, after a verdict or plea of guilty in a criminal case, when for good cause it seems best not to impose sentence immediately" may place the case on file. "But the case cannot properly be placed on file without the consent of the defendant. Although this practice formerly prevailed only in the higher courts, it was extended by statute to the police, district, and municipal courts. But when the statute gave to these courts authority to place complaints on file, it did not authorize such a disposition of a case against the objection of the defendant." 229 The Vermont law provides that the probation officer must furnish the probationer with a written statement of the terms of his probation,230 and, further, that the defendant must assent to the terms before being released into custody.281 From this it is not clear whether a defendant may refuse probation entirely. Only one Federal case was found which passes on the question of acceptance.282 Few cases of this nature are likely to * * * 22 Mass. Gen. Laws (1032) ch. 276, § 85. 27 Comm. v. McGovern, 183 Mass. 238, 66 N. E. 805 (1903). 22 199 Mass. 44, 85 N. E. 81 (1908). 229 Id. at 45, 85 N. E. at 82. 230 Vt. Pub. Laws (1933) § 8878. 231 Ibid. 2 Cooper v. United States, 91 F. (2d) 195 (C. C. A. 5th, 1937). arise but in Cooper v. United States 288 the court disagreed with the contention "that probation, like pardon, may be refused by the convicted person." In the language of the court, "the [probation] act vests a discretion in the court, not a choice in the accused." Most of the States require the probation officer to furnish probationers with a written statement of the terms of the release and to instruct probationers regarding such conditions.284 In Colorado the probation officer and the probationer must sign the written statement of conditions, a copy of which is given to the probationer. 285 In the fourth and eighth districts the probation order of the court contains the terms and conditions and is signed by the probationer, agreeing to such terms.236 Generally such written statements are furnished probationers merely for the purpose of making clear to them their status and duties while under supervision, and not with any idea of gaining the defendant's consent to the terms which the court has placed upon him. The whole question of acceptance in probation is controversial as questions arising with regard to this matter have never been clearly defined, much less definitely answered. Most frequently the defendant's power to accept or refuse probation has been considered either with regard to conditions or at the time of revocation. In the cases dealing with revocation proceedings there has been some talk of implied acceptance,287 but where the question has arisen earlier in the probation procedure, that is, at the moment of granting probation, a circuit court of appeals has said plainly that the defendant has no voice in the matter. 288 Actually, Actually, it will 233 Id. at 199. 234 Cal. Pen. Code (Deering, 1937) § 1203.12; Colo. Stat. Ann. (Michie, 1935) ch. 140, 5; Conn. Gen. Stat. (1930) § 6516; Ga. Code (1933) § 27–2704; Ill. Stat. Ann. (Jones, 1936) 37-781; Ind. Stat. Ann. (Burns, 1933) § 9-2213; Ky. Stat. (Carroll, 1936) 979b-11; Mass. Gen. Laws (1932) ch. 276, § 85; Neb. Comp. Stat. (Kyle, Supp. 1935) § 29-2211; N. Y. Code Cr. Proc. § 936, as amended N. Y. Laws 1933, ch. 727; N. C. Laws 1937, ch. 132; Ohio Code Ann. (Throckmorton, 1936) § 13452-8; Vt. Pub. Laws (1933) § 8878; Va. Code (Michie, 1936) § 1922d. 235 Supra, note 234. 230 Rules of court. 237 See post ch. IX 239 Supra, p. 253, note 282. be a rare defendant who will raise an unqualified objection to receiving probation rather than imprisonment. However, it is conceivable that defendants may resent certain of the terms under which their probation must be served, and in that case the question is on a somewhat different footing than where there is a refusal to accept any probation at all, or where a defendant has undertaken to carry out the terms of his release and has later violated them. In reality, courts cannot enforce any imposed condition other than by revocation of the probation and execution of the prescribed sentence. The California court has indicated that an offender must comply with the terms as the trial court has fixed them or he must go to prison and pay there the penalty for his crime. 289 How anomalous a situation might arise under existing decisions is not hard to imagine. In substance the court says to the probationer: "You have no choice in the matter; the question is for me to determine and I say that you may not go to prison but must return to your place in the community under the supervision of a probation officer and observe the terms of probation which I am about to impose. If you do not observe them, I shall revoke your probation and commit you to the State's prison under the sentence already imposed." If the defendant expresses then and there his objection to the conditions fixed, it would be an unwise court which would insist on his release. In effect, the defendant has refused probation. Were he to be released to carry out his threat of noncompliance, apparently, the only weapon at the court's command is imprisonment, on which the defendant had insisted at the outset. SUMMARY It is noteworthy that in a majority of the States probation conditions of a pecuniary nature are those most frequently encountered in the statutes. Such conditions relate to costs, bonds, fines, restitution, and support. When conditions which contemplate money payments of one type or another do not operate as conditions affecting eligibility People v. Blankenship, 16 Cal. App. (2d) 606, 61 P. (2d) 352 (1936). |