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time shall forfeit as much of it as the board of penitentiary commissioners and the superintendent shall determine.13 A schedule of deductions has been incorporated in the printed rules issued by the board of penitentiary commissioners.14

Restoration.-No mention of the power to restore good time once it has been forfeited is to be found in the statutes, but presumably under the wide latitude granted it by law,15 if the superintendent so recommended, the board of penitentiary commissioners could restore such forfeited good time.

EXPIRATION OF SENTENCE

Formalities and effect of release.-Specific mention is made relative to the final discharge of prisoners from parole in the statutes1 but the only mention made of a procedure to be observed in discharging inmates from the penitentiary at the expiration of their sentences refers to those who have served their term without infraction of the rules and who are, therefore, eligible to a more or less automatic restoration of their citizenship. Such prisoners are furnished a certificate by the board of penitentiary commissioners which when presented to the Governor may result in a restoration of citizenship through the issuance of a pardon.

Discharge gratuities.-Upon discharge a prisoner is provided with five dollars in cash and with "suitable" clothing. Also he is provided with transportation to his home, if it is within the State. If his home is not in New Mexico, transportation will be provided to the place of his conviction "or to some place not more distant selected by the prisoner."3

18 Id. 130-160. By rules promulgated by the board, this authority is delegated to the superintendent.

14 "For a violation of the rules the prisoner, for the first offense, loses 2 days, and for each subsequent offense 4 days of good time that may have accrued to him or her Rules of the Board of Penitentiary Com

missioners, November 1, 1935.

15 N. M. Stat. Ann. (Courtright, 1929) § 130-101. 1 N. M. Stat. Ann. (Courtright, 1929) § 130-168.

"If any convict shall pass the entire period of his sentence without any violation of the rules and regulations of the penitentiary, he shall be entitled to a certificate thereof by the superintendent, endorsed by the board of penitentiary commissioners, and on presenting the same to the Governor he may be granted a pardon and restored to citizenship, either at said time or subsequently, but the Governor shall not be obliged to grant such pardon." N. M. Stat. Ann. (Courtright, 1929) § 130-174.

Id. § 130-150, 130-169.

Prisoners' aid.-No aid is extended to discharged prisoners by the State of New Mexico.*

NEW YORK

SUSPENSION OF SENTENCE

Suspension of sentence at common law.-New York courts could suspend imposition of sentence at common law. This power was considered inherent in all courts of record having criminal jurisdiction,1 including courts of special sessions." The suspension could be of the whole sentence or of part.' But it could not be a release to become absolute upon certain conditions. The court could not validly bind itself to refrain from sentencing the defendant at any future time.* And if a suspension were made on condition, the court would not lose jurisdiction to enforce the original judgment by revocation of the suspension even without proof of violation of the condition. The existence of the power at common law to suspend execution of sentence was at best doubtful,*

A privately endowed organization known as "The New Mexico Society for the Friendless" extends some assistance to released convicts.

1 People ex rel. Forsyth v. Court of Sessions, 141 N. Y. 288, 36 N. E. 386 (1894), 23 L. R. A. 856; rev'g. 66 Hun. 550, 21 N. Y. Supp. 659 (Sup. Ct. 1893); overruling People v. Morrisette, 20 How. Pr. 118 (1860). See also People v. Harrington, 1 How. Pr. (N. S.) 35 (Gen. Sess. 1884); People ca rel. Sullivan v. Flynn, 55 Misc. 639, 106 N. Y. Supp. 925 (Sup. Ct. 1907); People v. Goodrich, 183 N. Y. St. Rep. 406, 149 N. Y. Supp. 406 (Sup. Ct. 1914); People v. Page, 125 Misc. 538, 211 N. Y. Supp. 402 (Sup. Ct. 1925). 2 People ex rel. Dunnigan v. Webster, 14 Misc. 617, 36 N. Y. Supp. 745 (Spec. Sess. 1895), aff'd mem., 1 App. Div. 631, 37 N. Y. Supp. 1148 (1st Dep't 1896). See also People v. Brown, 153 App. Div. 234, 237, 28 N. Y. Cr. Rep. 302 (2d Dep't 1912).

* People v. Page, 125 Misc. 538, 211 N. Y. Supp. 402 (Sup. Ct. 1925). People ex. rel. Forsyth v. Court of Sessions, 141 N. Y. 288, 36 N. E. 386 (1894).

People ex. rel. Pasco v. Trombly, 173 App. Div. 497, 160 N. Y. Supp. 67 (3d. Dep't 1916). See also, People v. Goodrich, 183 N. Y. St. Rep. 406, 149 N. Y. Supp. 406 (Sup. Ct. 1914).

People v. Goodrich, 183 N. Y. St. Rep. 406, 149 N. Y. Supp. 406 (Sup. Ct. 1914); People ex. rel. Schindler v. Kaiser, 95 Misc. 681, 159 N. Y. Supp. 322 (Sup. Ct. 1916). See also People ex rel. Paris v. Agent and Warden, State Prison, 118 Misc. 44, 47, 192 N. Y. Supp. 692 (Sup. Ct. 1922), rev'd. 201 App. Div. 573, 194 N. Y. Supp. 699 (3rd. dep't 1922); People v. Jennings, 135 Misc. 809, 240 N. Y. Supp. 91 (Cayuga Cy. Ct. 1930). The court said in the Goodrich case: "If the court possesses inherent power to postpone the passing of sentence, why should it not possess a like power to postpone execution of a sentence after it has been pronounced" (149 N. Y. Supp. 409) and "There was no distinction made by the English Courts" (149 N. Y. Supp. 410).

and the weight of authority appears to be against it.' But the power to suspend execution is conceded in cases of criminal contempt.

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Statutes. Whatever doubts existed as to the common law powers to suspend sentence have been settled by statutes which today allow suspension of either the imposition or execution of sentence. Restrictions on persons eligible to suspension of sentence and terms under which suspension must be made are similar to those pursuant to the granting of probation. It is well settled that statutory authority for suspension of sentence does not conflict with the executive power to grant reprieves and pardons.10

However, it should be pointed out that the statutory authority for the suspension of sentence does not apply to offenses not defined by the Penal Law.11 Therefore whether the power to suspend either the imposition or execution of

7 People v. Boehm, 176 App. Div. 401, 163 N. Y. Supp. 22 (4th Dep't 1917), aff'd mem. 226 N. Y. 705, 123 N. E. 881 (1919); People ex rel. Hirschberg v. Seeger, 179 App. Div. 792, 166 N. Y. Supp. 915 (2d. Dep't 1917) appeal dismissed, 223 N. Y. 659, 119 N. E. 1069 (1918), aff'g. 100 Misc. 51, 165 N. Y. Supp. 32 (Sup. Ct. 1917). In the Boehm case the appellate division affirmed an order revoking a suspension of execution of sentence on the alternative ground that the power to suspend did not exist, and on the ground that there was no limitation in time within which revocation could be made. The court of appeals therefore, by affirming the order of revocation on appeal did not necessarily pass on the existence of the power to suspend. In the Seeger case the appellate division affirmed an order revoking suspension of execution of sentence on an alternative ground that the power of suspension did not exist. The appeal was dismissed on jurisdictional grounds.

8 Typothetae of New York City v. Typographical Union No. 6, 138 App. Div. 293, 122 N. Y. Supp. 975 (1st Dep't 1910), aff'g. 66 Misc. 484, 123 N. Y. Supp. 967 (Sup. Ct. 1910) (Execution may be suspended even after the affirmance of the order of contempt by the appellate division and the court of appeals).

N. Y. Penal Law, § 2188, as amended N. Y. Laws 1933, ch. 193 and ch. 517; N. Y. Code Cr. Proc. § 470a. Chapters 193 and 517 should be read and interpreted together. Opinions Att'y Gen. (1933) 508.

10 People ex rel. Forsyth v. Court of Sessions, 141 N. Y. 288, 36 N. E. 386 (1894); People ex rel. Sullivan v. Flynn, 55 Misc. 639, 106 N. Y. Supp. 925 (Sup. Ct. 1907); People v. Goodrich, 183 N. Y. St. Rep. 406, 149 N. Y. Supp. 406 (Sup. Ct. 1914).

11 N. Y. Penal Law § 40 subd. 4. People ex rel. Hirshberg v. Seeger, 179 App. Div. 792, 166 N. Y. Supp. 915 (2d Dep't 1917), aff'g 100 Misc. 51, 165 N. Y. Supp. 32 (Sup. Ct. 1917). Since New York has no common law crimes (N. Y. Penal Law § 22) the common law powers of suspension would apply to crimes defined by statutes other than the Penal Law.

Neither the statutory nor inherent power to suspend sentence may be applied in statutory crimes for the commission of which punishment is made mandatory by the statute. People ex. rel. Hirschberg v. Seeger, 179 App. Div. 792, 166 N. Y. Supp. 915 (2d Dep't 1917).

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sentence exists at common law is still important in cases of crimes outside the scope of the Penal Law.

PROBATION

Historical development.-Probation in New York began in 1901 under a law which empowered all justices of courts having original criminal jurisdiction in all cities, to appoint officers to investigate and report cases which the courts thought might deserve mitigation of punishment by way of probation. Probation officers could be chosen among private citizens, clerks of court or police officers, or clerks from the district attorney's office. They received no compensation. Probation could be extended to all classes of crimes where there were "circumstances in mitigation." Under this law the work of probation developed slowly and irregularly.2

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In 1918 the courts were forbidden to place on probation those convicted of crimes punishable by death or life imprisonment; in 1928 fourth offenders and those convicted of a felony committed while armed with a weapon, were taken out of the scope of probation.*

In 1920 the law was amended to forbid the courts' suspending sentence or placing on probation after the term of imprisonment had begun." In 1928 it was required for the first time that investigation and report be made before probation could be granted. In that year the district attorney was first given an opportunity to be heard in felony cases before probation could be granted. And in 1930 suspension of sentence alone was forbidden without prior investigation. and report.R

Probation officers were first salaried in 1904. The present methods of appointment, qualification, and compensation date from 1928.10 The law setting up a county probation

1 N. Y. Laws 1901, ch. 372, § 1.

Chute, State Supervision of Probation Work (1918), 8 J. Crim. L. 823.
N. Y. Laws 1918, ch. 457.

Id. 1928, ch. 841.

5 Id. 1920, ch. 568.

Id. 1928, ch. 841.

Ibid.

N. Y. Laws 1930, ch. 298.

N. Y. Laws 1904, ch. 508; People ex. rel. Kelley v. Dooley, 169 App. Div. 423, 155 N. Y. Supp. 326 (2d. Dep't 1915).

10 N. Y. Laws 1928, ch. 460.

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department in Westchester county is as recent as 1930,11 and the law allowing the organization of county probation departments was passed in 1936.12

The first independent commission for the supervision of probation was established in New York in 1907.13 Through the work of the commission probation increased tremendously. The State probation commission made investigations and recommendations, watched appointment of officers and cooperated with the courts to improve personnel and conduct conferences. The commission members were seven, serving without pay, and consisted of four appointees of the Governor, two members of the State board of charities and State commission of prisons, designated by their respective bodies, and the commissioner of education.14

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Subsequently, the functions of the commission were assigned to the new division of probation in the department of corrections. But the commission remained executive head of the new division, although the member of the State commission of prisons who had a place on the probation commission was replaced by a member of the State commission of correction.16 In 1928 a director of probation replaced the commission as head of the division of probation. The director was given greater regulatory power. The commission remained, however, in an advisory capacity." Its membership was changed in 1929.18

Administrative organization.—The New York probation system is made up of probation officers appointed by the local courts and paid by the local governments, but under State supervision. One of the four major divisions of the State department of correction is the division of probation,10 headed by the director of probation, who exercises general

" Id. 1930, ch. 615.

12 Id. 1936, ch. 95.

13 Id. 1907, ch. 430.

14 N. Y. State Boards and Commissions Law § 80, 31.

15 N. Y. Laws 1926, ch. 343.

16 N. Y. State Departments Law 88 401, 402, 409.

17 N. Y. Laws 1928, ch, 313, § 409.

18 Id. 1929, ch. 243, § 14.

19 The others are the divisions of (1) administration, (2) industries, and (3) criminal identification, records, and statistics N. Y. Correction Law § 7.

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