a defendant has been previously convicted of a felony or has been more than once indicted for felony (and so should be sent to the department of mental diseases for examination under the Briggs Law), the probation officer is required to notify the clerk of the court of this fact.53 In court, the probation officer may recommend probation as to such cases as he deems proper, and need not wait until his recommendation is requested by the court.54 In addition to the major duties of investigation and supervision, probation officers are required to make detailed reports as required by the board of probation.55 Where a person is released on probation to allow him to pay a fine, the fine is paid to the probation officer.56 The same is true where one of the conditions of probation is the repayment of civil damages. Thus a probation officer may be a fiduciary agent, sometimes in large amounts. 57 Probation officers may be authorized by the court (in the Boston municipal court by the chief probation officer) to spend money for the temporary support of, or for transportation for probationers.58 Probation officers are also required to assist in the investigation of divorce cases, when requested." Where the determination of the amount of bail is in question, in cases of an offense punishable by more than 1 year in prison, probation officers are required to give information to the court relative to prior criminal prosecutions.60 Probation officers are also authorized, with the consent of the county commissioners (in Suffolk County, the penal institutions commissioner of Boston) to investigate the case of any person imprisoned in any jail or house of correction upon a sentence of 6 months or less, or upon a longer sentence where not more than 6 months remain unexpired, or for failure to pay a fine, to ascertain the probability of such person's reformation if released. If the probation 53 Id. ch. 123, § 100A. Id. ch. 276, § 85. 55 Id. ch. 276, § 100. 56 Id. ch. 279, § 1, as amended, Mass. Acts 1935, ch. 358. 67 Id. ch. 276, § 92. 5 Id. ch. 276, § 95. o Id. ch. 208, § 16. 60 Id. ch. 276, § 57. 61 officer recommends release, and this is concurred in by the trial court (or, if tried in the superior court, by the district attorney), the person may be released on parole. This seems to be a function quite distinct from the probation officer's other functions, and is not performed as an officer of the court to which he is attached. A probation officer in this instance acts in the performance of a statutory duty and makes an independent determination on the merits of the case. A somewhat unusual provision found in Massachusetts is that a person arrested for drunkenness may make a written statement addressed to the court or trial justice having jurisdiction of the offense, giving his name and address, number of dependents, place of employment, and whether he has been previously arrested for drunkenness during the past 12 months. This statement may be delivered to the officer in charge of the place of confinement, and if the arrest is made within the jurisdiction of a court having a probation officer, the statement must be transmitted to said probation officer, who upon investigation may order the release of the defendant. A release may be ordered only if the officer believes the arrested person has given his true name and address, that he will appear upon a summons and that he has not four times before been arrested for drunkenness within a year.62 In the execution of his duties, a probation officer has all the powers of a police officer. If appointed by the superior court, he may, by its direction, act in any part of the Commonwealth. His records may at all times be inspected by public officials of the towns of the State. His failure to make the required daily, monthly, or annual report to the central bureau is reported to the judge of his court who takes such disciplinary measures as he sees fit. Any recalcitrant officer who neglects or refuses to perform any of the duties required of him must pay a money forfeiture of $200 to the State.68 61 Id. ch. 127, § 141. 63 Id. ch. 272, § 45. See Horgan v. Boston Elevated Ry., 208 Mass. 287, 94 N. E. 386 (1911). Mass. Gen. Laws (1932) ch. 276, §§ 90, 96. Out-of-State supervision.—By an act of 1937 the legislature authorized the Governor to enter into uniform compacts for the transfer and out-of-State supervision of probationers and parolees.64 PAROLE History.-Release on parole in Massachusetts, even in colonial days, was not unknown.1 In 1837 the first act of the general court on the subject was passed. By that act, when the Governor, with the advice of his council, pardoned or remitted any part of a sentence, he might attach conditions to the release. Before the release the prisoner might be required to give bond for the faithful observance of the conditions imposed. For violation of such conditions, the warden of the State prison or the keeper of the jail or house of corrections could cause the arrest of a prisoner so released. On arrest, the warden or keeper notified the attorney for the Commonwealth, and, if guilt was admitted by the prisoner or established by jury verdict, the court resentenced the prisoner. If guilt was not established, the prisoner was discharged." The practice of fixing, by a new order, the term to be served after revocation is still followed in certain instances." The first statutory provisions which suggest parole by officers other than the Governor were enacted in 1855. By an act of that year the directors or overseers of houses of correction, houses of industry and workhouses were given the power to "bind out" certain prisoners. County commissioners in counties other than Suffolk, and the commis 4 Mass. Acts 1937, ch. 307. 1 Collections Massachusetts Historical Society, Third Series, VII, p. 150; Channing, History of the United States (1927) 199 et seq. 482. 'Mass. Acts 1837, ch. 181. * Id. § 1. 4 Id. § 2. Id. § 3; compare Mass. Gen. Laws (1932) ch. 127, ch. 152, ch. 155. When a parolee from a reformatory is recommitted on revocation of parole, the parole board fixes the time when he may again become eligible for parole. Rules of the Board of Parole (1935) Massachusetts Reformatory, rule 6. Because a sentence to this institution is usually indefinite, the effect of fixing the time for parole eligibility is to fix the minimum sentence of the prisoner. "Mass. Acts 1855, ch. 69, § 2. Id. 1877, ch. 147, § 1. sioner of the penal institutions of Boston (Suffolk County)' later were empowered to exercise this power. In 1880 the power of county commissioners, in counties other than Suffolk, to release prisoners on parole were greatly enlarged.10 This was also true in the case of the commissioner of the penal institutions of Boston.11 These powers of parole still exist, separate and distinct from the power of the Governor and council to release on condition and from the parole power exercised by the parole board.12 The history of the parole system as administered by the State board apparently began with the passage of a statute in 1845 which provided for an agent to assist discharged prisoners.18 This agent had at his disposal public funds to be used to assist released prisoners to procure employment, tools, clothing, and transportation. Thirty-four years later, in 1879, the commissioners of prisons appointed an agent to aid persons discharged from the State prison and the reformatory for women.14 "The experiences of these agents brought about a realization that their work could be done more effectively if the State could continue custody over the prisoner after he had been released." 15 In 1881 the legislature gave the commissioners of prisons the power to release prisoners from the reformatory for women prior to the expiration of their sentences "upon such conditions as they deem best." The commissioners under this act had power also to revoke this permit at any time prior to its expiration. 16 While the act itself did not provide for the supervision of prisoners released in this manner, some supervision seems to have been exercised.17 The commissioner of the penal institutions of Boston has long possessed the power to parole inmates of those institutions. See, e. g., Mass. Acts 1880, ch. 129, 6; id. 1881, ch. 34, §§ 1, 2; Mass. Pub. Stat. (1882) ch. 220, 69; Mass. Rev. Laws (1902) ch. 225, § 121; Mass. Acts 1902, ch. 227; id. 1912, ch. 158. 10 Mass. Acts 1880, ch. 221, § 3; id. ch. 247, § 2; id .ch. 129, § 6. 11 See id. ch. 129, § 6; Mass. Acts 1881, ch. 34, §§ 1, 2; Mass. Pub. Stat. (1882) ch. 220, § 121; Mass. Acts 1902, ch. 227; id. 1912, ch. 158. 12 Mass. Gen. Laws (1932) ch. 127, §§ 141, 143; Opinions Att'y Gen. (Mass.) 432. 13 See address of Seymore H. Stone, Organization and Functions of the Board of Parole (Feb. 22, 1929). 14 Mass. Acts 1879, ch. 297. 15 Stone, supra note 13. 18 Mass. Acts 1881, ch. 90. 17 Stone, supra note 13. "Parole as such began in the State Prison in 1894. The Commissioners of Prisons were then authorized to parole for the remainder of a sentence; such parole could not be granted, however, until two-thirds of the full sentence had been served, nor without the approval of the Governor and Council." 18 Before release the prisoner was required to have employment or otherwise be provided for; the statute further provided that "no permit shall be granted between the 1st day of November and the 1st day of March in any year." 10 This was to prevent hardship upon the prisoner in attempting to earn a living in the winter. In 1895 this provision was repealed.20 19 The first board of parole was organized in 1913. In that year the chairman of the board of prison commissioners, a deputy commissioner, and three members appointed by the Governor, with the consent of the council, were designated a board of parole for the State prison and the reformatory." The chairman of the prison commissioners and two women members constituted the board of parole for the reformatory for women.22 The board of prison commissioners appointed full time, paid parole agents. Their work was supervised by the deputy commissioner of prisons. The board of prison commissioners was directed to supply the board of parole with all necessary information and to issue all permits for parole as directed by the board of parole.2 All prisoners had to be seen personally by the board before a permit could be granted. The board of prison commissioners and the board of parole were reorganized in 1916. In place of the board of prison commissioners a director of the Massachusetts bureau of prisoners, two deputies, and an advisory prison board of five members was appointed. A board of parole of three members appointed by the Governor took the place of the former board of five. The director of prisons, or any mem 18 Ibid. 19 Mass. Acts 1894, ch. 440. 20 Id. 1895, ch. 252. 21 Id. 1913, ch. 829, § 1. 22 Id. § 2. 23 Id. § 3. |