29 tition for pardon 2o do not constitute undeniable claims to probation. The qualifications of each individual are to be considered separately. Thus, where one codefendant is placed on probation the other cannot object because his application is refused.30 It is the duty of the judge to grant or withhold probation as he sees fit, in a sound exercise of his judicial discretion; and to specify the grounds upon which probation must be granted would crystallize practice and would probably result in unworthy individuals being placed on probation. Investigation to determine eligibility.-The statute provides that the probation 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." 32 The practice is, in most cases, to conduct presentence investigations. These vary from slight investigations, consisting chiefly of an interview with the defendant, to a complete report including home visits, community contacts and preparation of a complete social case history. The thoroughness of the investigation depends upon the time available and the case load of the officer. In some cases the court grants probation at the time application is made, in which case the probation office has no opportunity to conduct presentence investigations. Terms and conditions.-The court is authorized to impose such terms and conditions as it may deem best, subject to modification at any time during the probation period. The probationer may be required to pay a fine imposed at the time of being placed on probation in one or several installments, to make restitution to the aggrieved party, or to support his legal dependents.33 It has been held that revocation may be had for the violation of conditions imposed orally and not included in the written order of probation.84 Since the court cannot enter an order granting probation after service of sentence has begun, it seems to follow that 20 United States v. Davis, et al., 19 F. (2d) 536 (D. C. Idaho, 1927). 0 United States v. Gargano, 25 F. (2d) 723 (D. C. La. 1928). 32 18 U. S. C. § 727 (1934). 33 18 U. S. C. § 724 (1934). United States v. Mulligan, 48 F. (2d) 93 (C. C. A. 2d, 1932); Dillingham v. United States, 76 F. (2d) 35 (C. C. A. 5th, 1935). imprisonment may not be made a condition of the probation order. If the person is a drug addict, the court may impose a condition that the defendant submit to treatment at a United States narcotic farm until discharged therefrom as cured.35 36 Length of probation period.-The probation period, together with any extensions, cannot exceed a maximum of 5 years. But this is the only limitation. Thus, it has been held that the probation period may run longer than the maximum period for which the defendant could have been imprisoned. The running of the probation period is tolled if the probationer violates the terms of his release and is incarcerated in a State prison for a crime committed while on probation.38 Revocation. The maximum period of probation cannot exceed 5 years. During that time the court may revoke the probation, modify any condition thereof, or change the length of the period. The probationer remains in the court's custody, and at any time within the period he may be arrested and brought before the court which granted the probation.40 Such arrest may be made by the probation officer without warrant or upon warrant, which may be executed by either the probation officer or United States marshal of either the district where the probation was granted or of any district in which the probationer may be found. Although the maximum period of probation is limited to 5 years, the court may, after the expiration of the period, but within a maximum period for which the defendant might 2545 Stat. 1088 (1929), 21 U. S. C. § 233 (1934). *18 U. S. C. § 724 (1934). Hollandsworth v. United States, 34 F. (2d) 423 (C. C. A. 4th, 1929). "United States ex rel. Demarois v. Farrell, 87 F. (2d) 957 (C. C. A. 8th, 1937). A Federal probationer may not be bound over to a State court for an alleged crime committed prior to sentence in the Federal court, without the consent of the latter. Grant v. Guernsey, 63 F. (2d) 163 (C. C. A. 10th, 1933), cert. denied, 53 S. Ct. 688 (1933). The provisions of the act are to be executed by the court in which the defendant was convicted or pleaded guilty. A judge from district B who had been temporarily assigned to district A, is without jurisdiction when back in his own district to terminate probation proceedings in a case heard by him while on temporary duty in district A. Kelly v. United States ex rel. Frad. 89 F. (2d) 866 (C. C. A. 2d, 1937), cert. granted, 57 S. Ct. 946 (1937). originally have been sentenced, cause the arrest of the defendant. In such event, after being brought before the court, the probation or suspended sentence may be revoked and the court "may impose any sentence which might originally have been imposed." 41 But this power may not be exercised unless it is made to appear that the probationer has failed to comply with the terms and conditions prescribed in the grant of probation."2 The proceeding for revocation "is not one of formal procedure either with respect to notice or specification of charges or trail upon charges." 43 In general, the proceeding is of a summary character and none of the attributes of a criminal trial are present. Sufficient cause for a revocation of probation exists when the court is satisfied that the probationer has violated any of the terms or conditions of his probation. A revocation on the broad ground that the probationer's conduct has not been good is adequate; conviction of an offense committed subsequent to the grant of probation is by no means necessary.45 Although the proceedings for revocation may be summary in character, the probationer is nevertheless entitled to a hearing before the court. If no hearing is granted and the probationer is committed to prison, he may obtain his discharge through habeas corpus proceedings. "When an opportunity to be heard is denied altogether, the ensuing mandate of the court is void, and the prisoner confined thereunder may have recourse to habeas corpus to put an end to the restraint." 40 The order revoking probation may take the form of a revocation of either (1) the suspension of imposition of sentence or (2) the suspension of execution of sentence, de 418 U. S. C. § 725 (1934). 42 Hollandsworth v. United States, 34 F. (2d) 423 (C. C. A. 4th, 1929). 43 Burns v. United States, 287 U. S. 216, 222 (1932); see also Jianole v. United States, 58 F. (2d) 115 (C. C. A. 8th, 1932). "Campbell v. Aderhold, 36 F. (2d) 366 (D. C. Ga. 1929). 45 Ibid.; Riggs v. United States, 14 F. (2d) 5 (C. C. A. 4th, 1926). 46 Escoe v. Zerbst, 295 U. S. 490, 494 (1935). But the discharge is without prejudice to arrest and commitment in conformity to the statute. Written notice of charges against him are not required where the probationer and his counsel are fully advised in ample time to defend. Furrow v. United States, 46 F. (2d) 647 (C. C. A. 4th, 1931). pending upon the terms of the original probation. Where imposition of sentence was originally suspended and probation granted, and the probation and suspension are later revoked, it is plain that before the offender can be imprisoned imposition of sentence is necessary. And since the case reverts to its status at the time probation was granted, the court clearly is free to impose "any sentence which might originally have been imposed." 47 But where the court imposed sentence but suspended the execution of it, it would seem that when the suspension of execution is revoked the original sentence becomes operative.48 However, it has been held that when suspension of execution is revoked the court may modify the original sentence so as to decrease the term of imprisonment. No case has been found wherein the court, upon revocation of suspension of execution, increased the original sentence. The imposition of an increased sentence might be open to the attack that the defendant had been twice placed in jeopardy for the same offense, contrary to the Constitution. If the original sentence is to be considered as having any finality it would seem that a subsequent sentence increasing the punishment would be in conflict with the Constitution.50 After sentence has been imposed following revocation of probation, the trial court cannot at a subsequent term reduce the sentence.1 The fact that the case has been appealed by the government does not warrant the conclusion that the original term at which sentence was imposed is kept open 18 U. S. C. § 725 (1934). Such was the view taken by the Attorney General. See 36 Opinions Att'y Gen. 186, 191, 192 (1930). Cf. Crowder v. Aderhold, 46 F. (2d) 357 (D. C. Ga. 1931). United States v. Antinori, 59 F. (2d) 171 (C. C. A. 5th, 1932). See also Scalia v. United States, 62 F. (2d) 220 (C. C. A. 1st, 1932). to If such a view were taken, the practice of permitting reduction of sentence upon revocation of probation could be treated as an exception to the general rules of finality of judgments. It is settled that even during the same termwhen the sentence still resides "in the breast of the court"-the sentence may not be amended to increase the penalty. United States v. Benz, 287 U. S. 304 (1931) (Thus, in order to permit an increase in sentence following revocation of suspension of execution, the original sentence would have to be treated as though it had no finality. But that it has sufficient finality to permit review of proceedings granting probation is evident. There would seem to be no basis for distinction between finality for constitutional purposes and finality for review purposes.). "United States v. Ackerman, 61 F. (2d) 570 (C. C. A. 5th, 1932). so that upon receipt of the mandate from the appellate court the trial court can amend the sentence.52 In granting probation, the court may reserve the right to enter further and final judgment at the expiration of such period. In that event, even though the conduct of the probationer is not questioned, the court may impose sentence without entering an order revoking the probation. The court, in sentencing the offender after probation has been revoked, need not give credit for the time spent on probation. Nor does a refusal to allow such credit amount to double jeopardy for the reason that probation is not the equivalent of imprisonment." 53 The repeal of the eighteenth amendment operated to remove the criminality theretofore attached to certain conduct. Thus, where probation was revoked because of a conviction under the Prohibition Act and repeal occurred while an appeal from the order revoking probation was pending, the basis for the revocation order had ceased to exist and the prisoner was therefore entitled to his discharge.55 56 57 Probation officers: Appointment and qualifications.—The judges of the various district courts appoint the probation officers for their jurisdiction. As originally enacted, the law required that these appointments be made from the civil service register. But in 1930 this requirement was removed. However, the bureau of prisons has promulgated general qualifications which appointees should possess. In brief, these provide that persons selected should have physical vigor and mental adaptability, at least a highschool education plus 1 year in college or a year's experience in organized probation work, and thorough training in the technique of social investigation. Through close supervision the Bureau of Prisons attempts to maintain high 52 Quaere what would be the decision if the trial court, after imposing sen tence following revocation of probation, attempted within the same term to reduce the sentence before execution was begun? 3 Reeves v. United States, 35 F. (2d) 323 (C. C. A. 8th, 1929). Literally read, the statute seems to necessitate a revocation prior to imposition of sentence. See Kaplan v. Hecht, 24 F. (2d) 664 (C. C. A. 2d, 1928) and the cases cited therein. Cornerz v. United States, 69 F. (2d) 965 (C. C. A. 5th, 1934). bo 43 Stat. 1259 (1925). 67 46 Stat. 503 (1930). |