cooperation with the officer, the character of the selective process. The existence, interrelation and effect of these and other factors may render a case load of more or less than 50 desirable. Nevertheless, case loads in almost all parts of the country greatly exceed 50. Appreciable reductions appear to be necessary before the quality of probation supervision can be improved.

The period spent on probation in many cases is far too short in which to undertake a purposeful and adequate process of supervision. In some jurisdictions this is the result of statutory limitations upon the length of the probation period. In many others responsibility must be placed upon the courts which have failed to exercise the discretion granted them in this matter in a realistic and satisfactory way. Every effort should be made to impress upon courts the undesirability of fixing the probation period at less than 1 or 2 years. In addition, judges should be educated to the advisability of granting extensions or early terminations of probation upon the advice of the supervising officer. Statutory provisions requiring or permitting probation to cease upon payment of a fine should be repealed.

Restrictions of the probation period to a term of 1 year, whether in felony or misdemeanor cases, frequently prevent completion of the process of social readjustment. Where statutes limit probation to 1, 2, or 3 years, courts should be given discretionary power to extend the period. An indefinite term of probation up to 5 years may be desirable, but extension of the period beyond 5 years would seem to be inadvisable.

CHAPTER IX

REVOCATION AND TERMINATION OF

PROBATION

REVOCATION PROCEDURE

Who may revoke.-In the Federal system and all States except Iowa, Missouri, Montana, North Dakota, and Wisconsin the courts are the sole authorities empowered to revoke the suspension of sentence and probation and to order incarceration. Since the Iowa parole board has power to release persons on "parole" prior to commitment, it has the authority to declare such parolees delinquent and order commitment. In certain counties in Missouri the power to grant bench parole is vested in a board composed largely of the judges in the county, and in such instances the board has exclusive power to revoke "parole."2 After suspending sentence, unless the power to revoke is retained, the Montana courts lose jurisdiction of cases of probation and revocation may be ordered only by the board of prison commissioners. The board of administration has the sole power of revoking probation in penitentiary cases in North Dakota. The Wisconsin statutes vest the revoking authority with the courts in misdemeanor cases and in all cases arising in Milwaukee County; but in all other cases the board of control, through its probation department, exercises control over probationers."

Grounds for revocation.-Every probation statute, either in express language or by reasonable implication, provides that probation may be revoked for any violation of conditions. A few States go further and permit revocation if it

1 Iowa Code (1935) § 3805.

2 See, e. g., Mo. Stat. Ann. (Vernon, 1932) §3812.

Mont. Rev. Codes Ann. (Anderson & McFarland, 1935) §12084. Mont. Laws 1937, ch. 184 authorized the courts to retain power to revoke. Theretofore the board had had exclusive powers in this respect.

N. D. Comp. Laws Ann. (1913) § 10954.

'Wis. Stat. (1935) §§ 57.03 (1), 57.04 (2).

is found that the probationer practiced fraud upon the court or misrepresented facts prior to being released on probation, or that his conduct is inconsistent with good citizenship. Logically, it would seem that some violation of conditions is necessary before probation can be revoked, but it has been held by a Federal court that sentence may be imposed at the expiration of the probation period even though it affirmatively appears that the probationer's conduct has been good."

Conviction or commission of a new crime is not necessary, although the practice in some States is such that violations are seldom called to the attention of the court unless the probationer is charged with or has been convicted of an offense. Where such practice prevails it is not unusual to find that revocation is not ordered if the punishment meted out for the second offense seems adequate under the circumstances. On the other hand, if any difficulty is anticipated in procuring a conviction on the second charge or if incarceration therefor is to be in the county jail whereas the sentence which had been suspended required service in the State penitentiary, considerations of expediency and local economy may dictate that revocation is preferable to prosecution of the new offense. In either event, the net result is that the offender escapes punishment for one crime.

The fact is frequently overlooked that, although the statute may sanction revocation for any violation of conditions which in some instances are so broad and general that definitive standards of conduct are nonexistent-revocation does not occur unless the conduct deemed violative of the terms of the probation order is called to the attention of the court. The criterion of success of a probation department cannot be stated in terms of the percentage of probationers who, during the probation period, do not receive a formal revocation of their probation, from which

Idaho Code Ann. (1932) § 19-2502.

Tenn. Code Ann. (Williams, 1934) 11802.3.

Reeves v United States, 35 F. (2d) 323 (C. C. A. 8th, 1929).

Riggs v. United States, 14 F. (2d) 5 (C. C. A. 4th, 1926); Sellers v. State, 105 Neb. 748, 181 N. W. 862 (1921); Comm. v. Miller, 63 Pa. Super. 548 (1916).

statement the inference might be drawn that probationers not haled before the court committed no acts forbidden by the terms of their release. Manifestly any such generalization is misleading and inaccurate. If the policy of a department is to recommend revocation only for breaches amounting to a criminal offense, its record cannot be compared on the same basis with that of another department which insists upon a strict compliance with all of the conditions of probation. Moreover, the attitude of the probation officer in this regard is highly important because his conception of what constitutes a violation sufficiently serious to warrant a recommendation of revocation cannot be reflected in any statistical table. The impracticability, therefore, of utilizing recorded revocations as a reflection of the frequency of violations of conditions is apparent.

When revocation may be ordered.-The majority of States and the Federal system provide that the court may revoke probation at any time during the probation period. A few stipulate, in addition to the above provision, that revocation may be ordered after the expiration of the probation period but within the maximum period for which the defendant could have been sentenced to imprisonment.10 Other States, which do not prescribe the duration of the probation period, apparently permit revocation at any time provided that the probationer has not been discharged.11

On the whole, the statutes are silent on the point of whether the entire revocation procedure, culminating in the formal order of commitment, must be completed within the probation period. If apprehension, hearing, and commitment (or sentence) must occur before the probation period expires, it follows that a defendant may evade detection near the end of his period and thus defeat revocation. Only a few courts have passed on this subject.

10 Colo. Stat. Ann. (Mitchie, 1935) ch. 140, § 7; N. Y. Penal Law § 2188, N. Y. Code Crim. Proc. §§ 470a, 483 (4); Va. Code (Michie, 1936) § 1922b; W. Va. Code Ann. (Michie, Supp. 1933) § 6134; 18 U. S. C. § 725 (1934).

11 Arkansas: Denham v. State, 180 Ark. 382, 21 S. W. (2d) 608 (1929); Hartley v. State, 184 Ark, 237, 42 S. W. (2d) 7 (1931); Iowa: Bennett v. Bradley, 216 Iowa 1267, 249 N. W. 651 (1933); Maryland: Md. Code Ann. (Bagby, Supp. 1929) art. 27, § 577A; Oregon: Ore. Code Ann. (1930) 13-1126 (bench parole); Rhode Island; Roderick, Petitioner, 45 R. I. 153, 120 Atl. 674 (1923).

The Arizona court recently took a strict view of the revocation procedure. The statute in that State reads that revocation may be ordered "at any time during the period of probation," but "if the court has not seen fit to revoke the order and impose sentence or pronounce judgment, the defendant shall, at the end of the term of probation, be by the court discharged." 12 This provision was construed to mean "not only that the order of probation should be revoked, but also that sentence be imposed during the period of probation." 13 A somewhat similar decision was reached by the Ohio Court of Appeals, which held that, in view of the phrasing of the probation statute that "the jurisdiction of the court or magistrate to impose sentence shall cease" 14 at the end or termination of the probation period, the trial court was without power 5 days after the expiration of the period to continue the probation.15 Since the extension of the probationary term was invalid, an attempt to revoke the order and impose sentence thereafter was likewise void.

In Vermont, if the revocation procedure was begun prior to the expiration of the statutory period, revocation may be ordered thereafter.16 The New York law provides that revocation may not be ordered after the probation period or the maximum period for which sentence could have been imposed has expired, unless the probationer was convicted of crime within either of those periods.17 Under a statutory provision authorizing revocation at any time during the probation period, the Michigan court has held that where the petition to

12 Ariz. Rev. Code Ann. (Struckmeyer, 1928) § 5105.

13 Ex parte Keene, 47 Ariz. 191, 194, 54 P. (2d) 791, 792 (1936). In this case the court had ordered the arrest of the probationer within the period, but for some reason not appearing in the report the probationer was not brought before the court until more than 2 years after the probation period had expired. Reliance was placed upon the decision of the California court in People v. O'Donnell, 37 Cal. App. 192, 174 Pac. 102 (1918). But in that case the probationer had absented himself from the State for the entire period, which amounted to a violation, and no effort was made to apprehend him until he returned to the State after the expiration of the period. The court indicated that if proceedings had been initiated for revocation during the period, another result might have been reached. Thus the O'Donnell case is easily distinguishable from the decision of the Arizona court in the Keene case.

14 Ohio Code Ann. (Throckmorton, 1936) § 13452-7.

15 Ex parte Miles, 35 Ohio App. 553, 172 N. E. 703 (1930).

16 Ex parte Parker, 107 Vt. 463, 181 Atl. 106 (1935).

17 N. Y. Penal Law § 2188; N. Y. Code Crim. Proc. § 483 (4).