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volume. Hence comparisons between States in regard to any one phase of probation, parole, pardon, or good time deductions can readily be made.

The effort has been made to give some account of the history of each device in each jurisdiction and to include all the operative statutes and decisions through 1937. It must be recognized, however, that the law in this field is constantly growing through legislative action, judicial decision and administrative interpretation. The digest does, however, depict the present state of the law relating to release procedures. It is hoped that as a ready reference and source book it will find a useful place in the field which it covers.

DIGEST OF FEDERAL AND STATE LAWS ON RELEASE PROCEDURES

UNITED STATES

SUSPENSION OF SENTENCE

Suspension of sentence at common law.-In 1916, in the famous Killits case, the Supreme Court held that the Federal courts had no inherent power to suspend indefinitely the imposition or execution of a sentence.1 Prior to this holding both devices had been used for many years in some districts, but the Supreme Court ruled that the practice was inconsistent with the constitution, "since its exercise in the very nature of things amounts to a refusal by the judicial power to perform a duty resting on it and, as a consequence thereof, to an interference with both the legislative and executive authority as fixed by the Constitution." 2 The Court indicated, however, that Congress had adequate power to authorize the practice by statute.

Although an indefinite suspension of either imposition or execution of sentence is void, the lower courts were at variance upon the question whether power existed to impose sentence or order execution thereafter. In 1933 the Su

preme Court expressly disapproved cases holding that jurisdiction to impose sentence is lost with the passing of the term following a void suspension of sentence, and held that "where verdict has been duly returned, the jurisdiction of

1 Ex parte United States, 242 U. S. 27 (1916).

2 Id. at 51.

In the following cases it was held that after imposition of sentence had been indefinitely suspended the court had no jurisdiction to impose sentence at a subsequent term: United States v. Wilson, 46 Fed. 748 (C. C. Idaho, 1891); Ex parte Singer, 284 Fed. 60 (C. C. A. 3d, 1922); Mintie v. Biddle, 15 F. (2d) 931 (C. C. A. 8th, 1926). A contrary result was reached in Hodges v. United States, 35 F. (2d) 594 (C. C. A. 10th, 1929) and Ex parte De Angelo, 50 F. (2d) 847 (C. C. A. 6th, 1931). Where execution of sentence has been suspended, the judgment may be enforced at a subsequent term. Morgan v. Adams, 226 Fed. 719 (C. C. A. 8th, 1915); United States v. Hill, 4 F. Supp. 748 (D. C. Pa. 1933).

(1)

the trial court

is not exhausted until sentence is

pronounced, either at the same or a succeeding term."✦ Statutes. It was not until 1925, 9 years after the decision in the Killits case, that Congress enacted the probation law which authorized district courts to suspend either imposition or execution of sentence and place the person on probation. This statute will be treated in the following section.

PROBATION

Historical development.—Since the growth and development of the Federal probation system has been described elsewhere,1 the sketch here given will be brief.

Between 1916 and 1925 attempts were made to secure the passage of a law authorizing Federal judges to grant probation. It was not until the latter year, in the closing days of the session, that Congress enacted the National Probation Act. Although the theory of probation seemed to meet with wide approval, it was objected that the proposed bill would give judges too much discretion in granting probation. One Congressman asserted that in States where the prohibition law was not favored judges would abuse their discretion by placing "every bootlegger who is convicted on probation." 2

The 1925 act authorized the Federal district courts, except in the District of Columbia, to appoint not more than one salaried probation officer. These appointments were to be made from the civil-service register. The Attorney General's supervision was limited to approving the salary fixed by the court and requiring reports from probation officers. The appropriations for 1927, 1928, and 1929 were limited to the nominal sum of $25,000.

• Miller v. Aderhold, 288 U. S. 206, 211 (1933).

43 Stat. 1259 (1925); 18 U. S. C. § 724 et seq. (1934). It is not clear whether imposition or execution of sentence may be suspended without an order placing the person on probation. Ex parte De Angelo, 50 F. (2d) 847 (C. C. A. 6th, 1931) seems to indicate that such action is permissible. But see Burr v. United States, 86 F. (2d) 502, 503 (C. C. A. 7th, 1936), cert. denied, 57 S. Ct. 507 (1937), in which the court said that "We know of no instance wherein the court may permanently suspend sentence or the imposition of sentence except by virtue of the terms of the Probation Act."

1 Bates, Growth and Future of the Federal Probation System, in Glueck, Probation and Criminal Justice (1933) 250.

266 Cong. Rec. 3891 (1925).

43 Stat. 1259 (1925), 18 U. S. C. § 724 et seq.

In 1930 the law was amended in several important particulars. Judges were empowered to appoint without reference to the civil-service list, and the limitation of one officer to each district was removed. The Attorney General was charged with the duty of coordinating the probation system and was authorized to appoint an agent to prescribe record forms, investigate the work of the different officers and "by all suitable means to promote the efficient administration of the probation system and the enforcement of the probation laws in all United States courts." Probation officers were also required to perform such duties with respect to parolees as the Attorney General might request. Following the 1930 amendments, Congress increased the annual appropriation from $25,000 to $200,000. For the fiscal year ending June 30, 1937, Congress appropriated $727,540 for the Federal probation system. With increased funds, the work of the probation service was greatly expanded; at the beginning of the fiscal year July 1, 1936, there were 142 probation officers, as compared with only 8 in 1930.

The objectives of the probation law have been stated by the late Chief Justice Taft to be the following: "

7

*

The great desideratum was the giving to young and new violators of law a chance to reform and to escape the contaminating influence of association with hardened or veteran criminals in the beginning of the imprisonment. * The avoidance of imprisonment at time of sentence was therefore the period to which the advocates of a Probation Act directed their urgency. Probation was not sought to shorten the term. Probation is the attempted saving of a man who has taken one wrong step and whom the judge thinks to be a brand who can be plucked from the burning at the time of the imposition of the sentence.

Rehabilitation of the penitent offender is the object of the law; probation, it is felt, will permit a young and new offender “to take advantage of an opportunity for reformation which actual service of the suspended sentence might make less probable." "

46 Stat. 503 (1930).

$49 Stat. 1331 (1936).

Re. Att'y Gen. (1936) 220.

United States v. Murray, 275 U. S. 347, 357-358 (1928).
Burns v. United States, 287 U, S. 216 (1932).

There is no question but that, in the main, the probation act is constitutional. In a case arising shortly after the passage of the act, the contention was made that the power of probation encroached upon the executive power of pardon. The court held, however, that "the act in no way contravenes the constitutional right of the President, in the exercise of executive clemency, and that power of the Chief Executive, in respect to those serving their probationary sentences, is as full and complete as if the probation law had never been enacted." 9

Present organization.—The judges of the various district courts appoint the probation officers for their respective courts. The officers have jurisdiction only within the area served by the court to which they are attached. The Bureau of Prisons of the Department of Justice exercises a close supervision over the work of all probation officers, through an executive officer known as the probation supervisor. Standards and rules for probation officers and the conduct of the work are prescribed by the Bureau of Prisons. In the appropriation acts since 1930, Congress has stipulated that no part thereof "shall be used to defray the salary or expenses of any probation officer who does not comply with the official orders, regulations, and probation standards promulgated by the Attorney General.10

Procedure. The probation act makes no provision as to when the power to grant probation shall cease; it merely states that the court shall have power "to suspend the imposition or execution of sentence and to place the defendant upon probation." 11 But it has become settled that once a person has begun serving his sentence no probation may be

Riggs v. United States, 14 F. (2d) 5 (C. C. A. 4th, 1926), cert. denied, 273 U. S. 719 (1926). See also Nix v. James, 7 F. (2d) 590 (C. C. A. 9th, 1925); Kriebel v. United States, 10 F. (2d) 762 (C. C. A. 7th, 1926). There is a possibility that section 2 of the act (18 U. S. C. § 725) may conflict with the Constitution. A part of that section provides that the court may, after the expiration of the probation period but within the time for which the defendant might originally have been sentenced, cause the arrest of the defendant and thereupon "may impose any sentence which might originally have been imposed." For a discussion of the possible conflict of this provision with the fifth amendment to the Constitution, see infra, pp. 11-12.

10 See, e. g., 49 Stat. 1331 (1936).

11 18 U. S. C. § 724 (1934).

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