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onment in the county jail or fine was imposed.1 The period of probation was limited to 5 years. The courts were given power to revoke or modify probation and to appoint probation officers with the usual duties. This statute was declared unconstitutional in 1935 by the Alabama supreme court, as an invasion of the governor's exclusive power to grant commutations and paroles.3

In nonsupport cases, however, the courts have, since 1919, had the power to suspend sentence and place the offender on probation, or, if sentence of imprisonment is imposed, the prisoner may be released before expiration of his term and placed on probation for the remainder." Suspension of whole or part of the sentence is to be conditioned on the posting of bond for regular report to the court and for performance of the terms of the order to support. The court may call upon the sheriff, constable, or any police or peace officer, or may appoint in a particular case "any other discreet person, willing to serve" as probation officer."

This nonsupport statute with its probation provisions was not amended by the 1931 probation statute, nor was it mentioned by the court in holding that statute unconstitutional.


History. The parole laws of Alabama had their origin in 1897 when the Governor was authorized, in his discretion, to discharge a convict and to suspend a sentence without granting a pardon. He was authorized to "prescribe the terms upon which a convict so paroled shall have a sentence suspended," and to secure the rearrest and reimprisonment

1 Ala. Laws 1931, p. 444, amended Ala. Laws 1932, p. 54; Ala. Code Ann. (Michie, Supp. 1936) §§ 5276 (1)-5276 (5).

2 Ibid.

3 Montgomery v. State, 231 Ala. 1, 41, 163 So. 365, 377 (1935). In 1936 the legislature proposed a constitutional amendment to give trial courts power to grant probation in cases where the punishment does not exceed 5 years' imprisonment. Ala. Laws 1936, Ex. Sess., p. 169. At the same session, the legislature enacted a statute to become effective on the passage of the amendment, creating the office of probation officer in counties of 45,000 population or more. Id. p. 204. The constitutional amendment was rejected at the 1936 general election.

4 Ala. Laws 1919, p. 176, §§ et seq.; Ala. Code Ann. (Michie, 1928) §§ 4482, 4486, 4488, 4489, 4490, 4492.

Ala. Code Ann. (Michie, 1928) §§ 4482, 4489.

Id. § 4488, 4492.

of any convict who failed to observe the conditions of his parole. The power to grant parole which was given to the Governor was deemed to be an extension of his general power to pardon. By the constitution of 1901 the Governor was given a constitutional power to grant parole. The constitution also provided for the establishment of a board of pardons to advise the Governor on parole and clemency matters. The next step with respect to parole in Alabama was taken in 1919 by the passage of an act providing for the imposition of indeterminate sentences upon certain persons convicted of felonies and for the parole of such persons by the board of pardons. No significant changes in the parole laws of Alabama have been made since that time. However, an important development in parole administration in Alabama took place in 1935 when the Governor by executive order created a parole bureau to assist him in the granting of parole and in the supervision of parolees.

By whom administered.-Under the Alabama Constitution, the Governor has power to grant paroles. The constitution further provides that the Governor must lay before the board of pardons all petitions or recommendations for parole in cases of felony. The board is required to hear the petitions or recommendations in open session and “give their opinion thereon in writing to the Governor." After receiving the opinion of the board of pardons "on the failure of the board to advise for more than 60 days," the Governor may grant or refuse parole, "as to him seems best for the public interest."7

In 1935 the Governor created the Alabama Parole Bureau to make an independent study of prisoners confined in the prisons of Alabama, and to recommend those selected as worthy to the Governor for test paroles. The bureau is

1 Ala. Acts 1896-97, No. 345.

2 Fuller v. State, 122 Ala. 32, 26 So. 146 (1898).

Ala. Const. art. V, § 124.

Ala. Acts 1919, No. 161. Ala. Constr. art. V, § 124. • Ibid.


composed of three members, a chairman, an associate member and a secretary, who are selected by the Governor. This bureau has only one parole agent to supervise all the State's parolees. No statutory provision has ever been made for the bureau.

Traditionally, parole by the Governor in Alabama is regarded as an exercise of executive clemency. This view is expressed in an early case, Fuller v. State, decided in 1898. There it was said that "the parole of a convict is in the nature of a conditional pardon and within the constitutional grant of the pardoning power to the Governor. The power to grant pardon, absolute or conditional, cannot of course, be taken away from the executive, nor limited by legislative action; but the general assembly may enact laws to render its exercise convenient and efficient."9

By statute prisoners confined under indeterminate sentence may be paroled by the board of pardons. On expiration of the minimum term of a person imprisoned in the State penitentiary, the warden of the prison is directed to send the prisoner's record to the board of pardons. If, from the record, the board is reasonably satisfied that the prisoner will remain at liberty without violating the law, the board may authorize his release upon parole upon such terms and conditions as it may prescribe.10 However, it is the practice for the Governor to approve each parole granted by the board.

A prisoner released in this manner remains "in the legal custody and under the control of the warden of the penitentiary" until the expiration of the maximum time specified in his sentence or until pardoned by the Governor.11 No provision is made for the supervision of parolees released in this way.

Persons eligible for parole.-The Governor has authority to parole "whenever he thinks best." 12

122 Ala. 32, 26 So. 146 (1898).

Id. at 37, 26 So. 146, 147.

10 Ala. Code Ann. (Michie, Supp. 1936) § 5270.

11 Ibid.

12 Ala. Code Ann. (Michie, 1928) § 5132.

A convict who has been sentenced to an indeterminate term 13 is eligible for parole by the board of pardons upon the expiration of the minimum term of his sentence.14 When a convict is sentenced on two or more convictions, he is eligible for parole at the expiration of the total of his minimum sentences.15 A convict, serving an indeterminate sentence is, of course, eligible for gubernatorial parole as well as parole by the board of pardons.

Method of application for parole. In all cases in which application is made to the Governor for parole the person making such application must give 2 weeks notice by publication to that effect in a newspaper, if any newspaper is published in the county in which the offender was convicted. If there is no newspaper published in such county, notice must be in writing, posted at the courthouse door of such county, and at three other public places in the county; and in every instance wherein such application is made to the Governor, a copy of the notice and proof of the fact that such publication has been made must accompany the application.10

In misdemeanor cases the Governor, in his discretion, may grant parole either with or without a formal application being made therefor; and either with or without notice of

13 In all felony cases "in which the punishment fixed by statute in the penitentiary, and in which a maximum and a minimum term is prescribed, the court shall pronounce upon the defendant an indeterminate sentence of imprisonment in the penitentiary for a term not less than the minimum and not greater than the maximum fixed by statute for such offense, and the time fixed by the sentence from the end of the minimum to the maximum shall not be less than 6 months." Id. § 5267; id. (Michie, Supp. 1936) § 5268.

The indeterminate sentence act presupposes a period of "probation" or a testing period between the minimum and maximum terms, to be fixed in each case by the trial judge. Bailey v. State, 23 Ala. App. 369, 125 So. 693 (1930). The minimum sentence imposed, however, need not be the exact minimum set by the statute fixing the penalty for the crime of which an offender is convicted, and the maximum set by the statute in fixing such penalty. Rogers v. State, 17 Ala. App. 175, 83 So. 359 (1919).

The code provides for good conduct deductions which may be granted by the Governor "for each year of good conduct" of a prisoner. It is not clear from the statutes whether these deductions apply to the minimum term of a convict as well as to the maximum term. See Ala. Code Ann. (Michie, 1928) § 5131;

infra Executive Clemency, p. 46.

14 Ala. Code Ann. (Michie, Supp. 1936) § 5270.

15 Rep. Att'y Gen. (Ala. 1922-24) 80; id. (1918-20) 273.

18 Ala. Code Ann. (Michie, 1928) § 5128. Though this section applies specifically to an application for a pardon, the procedure here outlined is also followed in making an application for parole.

intention to apply for parole being given as is now provided by the law.1

The board of pardons is authorized to "establish rules in the matter of paroles and the granting and revocation thereof" consistent with the act providing for indeterminate sentences and the parole of indeterminate sentence prisoners by the board.18

Under the special rules made by the board with regard to temporary parole, application for temporary or shortterm parole must be made to the Governor.19 Although the rules of the board state that "no temporary paroles will be granted except in cases of extreme emergency and then only as a reward for good behavior," 20 temporary or short-term paroles at the present time constitute by far the greater proportion of paroles granted in Alabama.

Hearing. Since the establishment of the parole bureau, that body has attempted to investigate parole applications and to make recommendations to the Governor. Only the bureau members are present for final study and decision in a case.

By law, responsibility for investigation of parole applications and recommendations to the Governor for or against parole in felony cases rests with the board of pardons.21 Hearings on parole applications are to be held in open session.22 By statute, it is provided that the board must carefully examine, and investigate any application for parole referred to it, "and report in writing, within 60 days from the time the same is referred to them, to the Governor, their finding as to the merits of such application and the grounds thereof and in such report they shall approve or disapprove such application, or make such recommendation as to the same as may seem to them advisable." 23 After the board's recommendation, or on the failure of the board to advise after 60 days, the Governor, who is not bound by the board's recommendation in any case, may grant or re

17 Ala. Code Ann. (Michie, Supp. 1936) § 5133 (1).

18 Id. (Michie, 1938) § 5275.

19 Rules of the Board of Pardons (Ala. 1931), No. 7.

20 Ibid. "Temporary paroles will not be granted on account of the financial disability of the prisoner's family or to make or gather crops."

21 Ala. Const. art V, § 124.

22 Ibid; Ala. Code Ann. (Michie, 1928) § 2779.

23 Ala. Code Ann. (Michie, 1928) § 2779.

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