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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.12 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

44

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." 46

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

41 18 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).

44 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).

40 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." 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.1o 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

47 18 U. S. C. § 725 (1934).

48 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).

49 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).

50 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.

53

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.54

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 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.58 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 Quacre 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?

Literally

53 Reeves v. United States, 35 F. (2d) 323 (C. C. A. 8th, 1929). read, the statute seems to necessitate a revocation prior to imposition of sentence.

4 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).

56 43 Stat. 1259 (1925).

57 46 Stat. 503 (1930).

standards and is constantly seeking to improve the work of the probation officers. This aim is recognized by Congress, for it is provided that no part of the funds appropriated for the probation system shall be used to pay the salary of any officer who does not meet the standards fixed by the Attorney General.58

Salaries of probation officers are fixed by the Attorney General. However, Congress generally designates what the maximum salary shall be in the annual appropriation acts; for example, in 1935-36 the maximum was $2,600 60 and in 1936-37, $2,800.61

Probation officers: Powers and duties.-The probation officer is charged with the duty of keeping informed as to the conduct of every probationer under his supervision and he is required to investigate and report on any case which the court may refer to him. Complete records must be kept of the work, accounts must be kept and monthly returns made of all money collected from probationers, and such reports made to the Attorney General as he may require. In addition, the probation officer "shall use all suitable methods, not inconsistent with the conditions imposed by the court, to aid persons on probation and to bring about improvement in their conduct and conditions." 62

63

Probation officers have the same power of arrest as deputy marshals. They may, at any time within the probation period, arrest the probationer without warrant wherever found.64

The Attorney General may direct that probation officers supervise and perform such other duties with respect to persons on parole, as he may require."

PAROLE

History.-The Federal parole system was created in 1910 with the passage of an act authorizing the parole of pris

5849 Stat. 1331 (1936).

18 U. S. C. § 726 (1934).

60 49 Stat. 85 (1935).

61 49 Stat. 1331 (1936).

ea 18 U. S. C. § 727 (1934).

63 Ibid.

18 U. S. C. § 725 (1934). 5 Id. § 727.

73115-39—VOL. I

oners sentenced to terms of 1 year or more. Any such prisoner was made eligible for parole upon the expiration of one-third of his sentence. The power to grant and revoke parole was placed in the hands of the respective boards of parole established at the several penitentiaries and prisons. The board of parole at each penitentiary was composed of the superintendent of prisons in the Department of Justice and the warden and physician of the particular penitentiary. The board of parole at any Federal prison other than a penitentiary was composed of the superintendent of prisons and such officers of the particular prison as the Attorney General designated. A parole officer was provided for each penitentiary to supervise parolees and to perform such other duties as the board of parole might direct. It was provided that the supervision of parolees might also be devolved upon the United States marshals. The act of 1910 also provided that whenever any person has been convicted of any offense against the United States and sentenced to and confined in any State reformatory or institution, he becomes subject to the parole laws applicable to the inmates of such institution. However, the act further provided that no parole from either a State or Federal institution should become effective until approved by the Attorney General.1 In 1913 the parole law was amended so as to make prisoners serving a life term eligible for parole after the service of 15 years.2

No further amendments were made to the parole law until 1930. In that year the Federal parole system was materially altered. In lieu of the several institutional parole boards there was created a single parole board in the Department of Justice to be composed of three members to be appointed by the Attorney General. This board was given power to

136 Stat. 819-821 (1910), 18 U. S. C. §§ 714-723 (1934). 237 Stat. 650 (1913), 18 U. S. C. § 714 (1934).

"All Federal prisoners convicted for a definite term or terms of over 1 year whose prison record has been good, are eligible for consideration by the board for release on parole upon the expiration of one-third of their total term or terms. During the first 2 years of operation, the law was construed to mean that no life term prisoner was eligible for consideration for parole. As there were nearly two hundred of such prisoners then in confinement, the Attorney General, in his annual report to Congress, recommended that the law be amended so as to include such prisoners, and on January 23, 1913, an amendment was approved. White, The Federal Parole Law (1926), 12 A. B. A. Jour. 51. This article by a former superintendent of prisons contains a good summary of the operations of the Federal parole system prior to 1930.

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