Now, can anybody contend seriously that this volume of sentencing work could be accomplished with anything ap proaching wisdom or social vision by a judge who had also to spend many hours of each day listening to the evidence which was to determine the guilt or innocence of the accused? Ought not a judge, faced with this well-nigh impossible task, to welcome, and to welcome avidly, all the information he can get regarding the social history and background of these men and women whom he must sentence? The answer seems obvious.

A probation department in a busy urban criminal court ought to have a staff of competent investigators, large enough in number to make a thorough social investigation, not merely of the exceptional case, but of all cases, and to report upon them promptly. Sentence ought not to be imposed until the judge can reinforce his courtroom impressions, or correct them, or abandon them, after considering these reports. That is a large order. It may mean that more judges will have to be assigned to the criminal bench, as well as that larger and more competent staffs of social investigators will have to be attached to existing probation departments. The program will cost money. But who shall say that it will not be money well spent?

The "hunch" system for the determination of the judicial sentence is one of the weakest points in the present administration of the criminal law. Something better must be devised. From all sides are heard criticisms of the existing method. Conscientious and thoughtful judges are the first to condemn it. A defendant is tried in one part of a criminal court and is sentenced to 2 years in prison. He might have been tried in another part of the same court, in the same building, on the same day, and would have been given 10 days, or perhaps 10 years. The public senses these differences and is disquieted by them. Criminologists say with entire propriety that in this field there is no law whateverthat there is no such thing as a science of sentencing. The judge, who faces the problem daily, realizes better than any one else not merely that he has no satisfactory guide for his action, but that he is dependent upon luck rather than science as to what will be the effect of the sentence which he imposes. As a general rule, the judges opposed sentencing boards made up of so-called experts. A large portion of the judges seemed to feel that there is an inherent danger in giving broad powers to specialists because of extreme differences in points of view among them, and because they indulge in a great deal of theory not demonstrable in fact. Many of the judges voiced the belief that by use of the indeterminate

sentence, suspension of sentence, probation, and parole procedures the present system provides all the possible benefits which can be claimed for a special sentencing board. However, many of them recognized a growing feeling among the general public that the sentencing powers of judges should be more restricted than they are now. Some of them thought such restrictions to be inevitable and believed opposition to them from the judiciary and legal profession would not prevent their adoption in many jurisdictions.

Judges' views on primary objectives of criminal law.Seventy-five considered punishment to be the essential purpose or end of criminal justice. These 75 were not in agreement as to the purposes or benefits of punishment. A few believed punitive justice to be an end in itself, but most of them stated in effect that the purpose of punishment is to deter the offender and others from committing additional crimes, thereby serving as a protection to society.

Sixty-two declared the primary purpose of the criminal law to be the protection of society and there were many repetitions among the reports from these judges of the thought that the procedures of criminal justice should be so devised. Forty-three stated in effect that the primary aim of the criminal law should be to reform and rehabilitate the offender, while 52 others emphasized punishment, protection of society, and rehabilitation of the offender as inseparable aims of criminal justice. Information was not obtained from 38.

On the basis of the reports submitted, there is no way of knowing how many of the 75 judges who selected punishment as the primary objective of criminal justice would have qualified their remarks if each one of them had been asked if "punishment should be the one and only aim of criminal justice." Likewise the 62 judges who selected "protection of society" as the essential purpose of criminal justice would undoubtedly stress other objectives as well if the problem had been presented to them a little differently. The material on this point is characterized by such great subjectivity and variance in the methods of collection that only the most general of conclusions can be based upon it. However, there is enough to show a marked divergence of

opinion as to what is the primary objective of the criminal law, which divergence makes the many variances in sentencing practices and judicial procedures more readily understandable. Since a large number listed punishment as the primary function of criminal justice, the need for educating the judiciary to a more enlightened understanding of the findings of modern criminology becomes clear.

Judges' attitude toward probation.-One hundred and eighty-eight expressed themselves as being very much in favor of the use of probation whenever the interests of the public seem to justify it; 54 others favored a restricted use of probation, among whom were some who stated that in many jurisdictions too many persons are being placed on probation, most of them without adequate supervision. Other criticisms were that some judges use probation as a form of political patronage while others are guilty of such variances in their probation practices as to constitute an abuse of the probation procedure.

Information was not obtained from 14 judges. Twelve reported that they are definitely opposed to the use of probation while two others stated that they seriously question the value of probation. Some of these last two groups made comments to the effect that probation is a form of leniency in the handling of criminals which has only encouraged potential offenders to "take a chance" with the law. According to some of these judges, certainty that some imprisonment will result from conviction is essential in controlling the criminal class. Also a few of the judges opposed to probation stated that their opposition to it was based on their observations that the abuses of probation far exceed its theoretical values.

What types of offenders do the judges think should be placed on probation? The judges' answers to this question were very similar to their listings of factors which tend to produce lenient sentences as set out in table III. Some variations were noted but in the main it can be said that the same factors which tend to produce lenient sentences also determine the types of offenders most frequently placed on probation. The following types of offenders were listed by the judges as good probation risks: First offenders, young

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offenders, those with dependents, those showing possibilities of rehabilitation, nonvicious types, women, the "accidental" offender, the old and infirm, and the previous offender whose prior record is not serious. However, many of the judges qualified their comments by saying that the question as to who should be placed on probation depends upon all of the surrounding facts and circumstances of a given case. Greatest agreement was in regard to first offenders, young offenders, and those having dependents.10

The judges were asked what they considered the functions of probation officers should be. Ninety-two of them declared the primary purpose of the probation officer to be the supervision of all probationers after sentence; 87 felt that the probation officer should help the court with the investigation of the offender prior to sentence and then supervise him after sentence; 6 said the probation officers' duties should be limited to the presentence investigation, and that supervision should be left to other agencies. Seventeen judges expressed views to the effect that probation officers represent surplus personnel in the administration of probation and are not needed. They advocated saving the expense of probation officers' salaries for the taxpayers. Of the remaining 68 judges 12 were not in favor of probation and 56 made no comment.

It is to be seen from this noticeable lack of agreement on the part of the judges as to the duties of a probation officer that there still remains a great deal of work to be done in connection with showing the courts what services a

19 It is interesting to compare the judges' views as to who should be placed on probation with the findings of the probation department of the New York County court of general sessions. See e. g., Halpern, A Decade of Probation (an unpublished manuscript) 119:

"Our studies reveal that the average probationer placed in the custody of this department by the court for control and social treatment, is a young man whose background is poor, and is a member of a family which lives either on a marginal income, or one in which poverty is a prominent factor. His social vision in general is limited to the codes of conduct which govern the attitudes of his associates and which prevail in the immediate neighborhood in which he lives. His education is scanty. His equipment for a place in the economic struggle leaves much to be desired. He seldom has developed in himself resources which make for that element which we call character, and he rarely, if ever, has any objective which makes for the immediate development of a socialized viewpoint. His leisure is spent on the streets, in poolrooms, and in cheap dance halls, and he is not easily diverted from the deteriorating influences which play upon him in these environments."

probation officer can and should render in helping with the administration of probation. The National Probation Association has stated very clearly the dual function of a probation officer in this language: "As understanding grows of these underlying purposes and principles of the probation movement, and of its proper place in our system of dealing with delinquents, more attention is given to the two distinct functions of a probation department: (1) Investigation for the court before sentence and (2) the supervision of defendants placed on probation. In the later amendments to the probation laws, increasing emphasis is laid upon the first function, some going so far as to require that no defendant shall be placed on probation until an investigation has been made by the probation department and considered by the court." 20

The comments of the judges show many to be very much in doubt as to what training and qualifications should be required of probation officers. This matter seems to bother them very much because in many jurisdictions probation officers are selected and appointed by the judges. Some of the qualifications for a probation officer mentioned in order of frequency were: Knowledge of human nature and ability to handle people; good judgment; sympathetic, understanding and reasonable attitude; special training in social work or criminology; a good education; tactfulness; sincerity of purpose and firmness in carrying out duties; a good personality and physique; a knowledge of the law; maturity. Many of the judges pointed out that qualified probation officers cannot be obtained for the low salaries that are provided for them. Others emphasized that the quality of probation officers cannot be improved until definite standards of competency are set up and probation officers are selected on the basis of merit rather than on the basis of friendship, politics, or happenstance. The comments of many of the judges indicated clearly a desire to pay much greater attention to the presentence investigations and recommendations of probation officers if more of them were

20 Hiller, Adult Probation Laws in the United States (1930) Yearbook of the Nat. Prob. Ass'n, 147, 150.