and present condition. Report is required in felony cases, and others unless excused by the court. Investigation is to include, whenever practicable, the mental and physical condition of the defendant. A copy of the report of the investigation is required to be sent to any institution to which the defendant may be committed.14

Terms and conditions.-A court may determine and at any time modify the conditions of probation and may include among them the following terms or any other; that the probationer shall:

(a) Avoid injurious or vicious habits; (b) avoid persons or places of disreputable or harmful character; (c) report to the probation officer as directed; (d) permit the officer to visit him; (e) work at suitable employment as far as possible; (f) remain within a specified place; (g) pay a fine in one or several sums; (h) make restitution to any aggrieved party; (i) contribute support to those legally dependent on the probationer. 15

The probation period is limited only by the discretion of the court.18

Revocation.-At any time during the period of probation a court may issue a warrant and cause the defendant's arrest for violation of any condition. Any probation officer, or police or other officer with powers of arrest, upon request of the probation officer, may arrest a probationer without warrant. Where an arrest is made without a warrant, an arresting officer must have a written statement by the probation officer that the probationer has violated the terms of his probation. Such statement is sufficient to keep the defendant in the county jail or any other appropriate place until he is brought before the court. The probation officer must report the arrest and detention at once to the court and submit a writing showing how the conditions of probation were violated. Thereupon the court, after a hearing, may revoke the probation and proceed to deal with the case as if no probation had been granted."

14 Ky. Stat. (Carroll, 1936) § 979b-6. 15 Ky. Stat. (Carroll, 1936) § 979b-7. 16 Ibid.

17 Ky. Stat. (Carroll, 1936) § 979b-8.

Probation officers: Appointment and qualifications.—The director of the division of corrections of the department of public welfare is required to be a person trained and experienced in penology and prison management.18 The director of probation, who is required to give his entire time to the work of probation,1 is in turn appointed by the director of the division of corrections.20 The director of probation appoints probation officers subject to the approval of the department of public welfare. These appointments must be made from lists established by competitive examination. The qualifications for entrance to such examinations are prescribed by the director of probation. No appointment may be made without a certificate from the director as to eligibility.21

Probation officers: Powers and duties.-The director of probation is required to conduct examinations, prescribe qualifications of officers, supervise their work, inspect records, make an annual report with statistical information to the department of welfare, compile lists of officers, require reports from them at regular intervals, prescribe the form of records and reports, and consult and cooperate with the courts.22

Probation officers under the director of probation must investigate all cases referred to them for investigation by any court or the department of public welfare and must report in writing. They have a duty of furnishing to each person released on probation under their supervision a written statement of conditions of the probation and of instructing him with regard to the same. They must keep informed concerning the conduct and condition of each person by visiting him, requiring reports, and reporting thereon in writing to the department of welfare or the court, as either requires. Officers must keep detailed records of their work and accurate accounts, account to the court for moneys received, and report to the director as he may require.23 Offi

cers must furnish a copy of their reports on investigations to any institution to which a defendant may be committed.24

PAROLE

History. The parole system was inaugurated in Kentucky at a comparatively early date. By an act of 1888, the commissioners of the sinking fund were given authority to prescribe rules under which not more than 5 percent of the prisoners in the penitentiary might be paroled each year. Those convicted of certain crimes and those who had served previous penitentiary terms were declared ineligible for parole. Under this act the commissioners were given full discretion in the matter of granting paroles.

In 1900 the parole act was amended, the only substantial change in the previous law being that the board of prison commissioners, rather than the commissioners of the sinking fund, was given discretionary power to grant paroles to penitentiary inmates.3

The indeterminate sentence became part of the penal law of Kentucky in 1910, and in the same year the parole law of the Commonwealth was amended in such manner that its provisions might be carried out in harmony with the indeterminate sentence law. In addition, more convicts were declared eligible for parole than under the former act. Both the indeterminate sentence law and the 1910 parole act were held to be valid in a decision rendered in that year. It was also held that it was mandatory, not discretionary, for the board to grant parole to eligible convicts."

An amendment of 1912 expressly provided that the paroling of prisoners was entirely discretionary on the part of the board of prison commissioners.

Two important modifications of the parole law were effected in 1914. First, the Governor's approval to the

24 Id. 979b-6.

Ky. Acts 1888, ch. 1420, p. 115.

Ky. Acts 1900, ch. 26, p. 77.

Board of Prison Comm'rs v. Smith, 155 Ky. 425, 159 S. W. 960 (1913).

Ky. Acts 1910, ch. 4, p. 22.

Ky. Acts 1910, ch. 16, p. 61.

• Wilson v. Commonwealth, 141 Ky. 341, 132 S. W. 557 (1910).

↑ Ibid.

Ky. Acts 1912, ch. 144, p. 653.

board's recommendation for parole was made mandatory. Second, the board was deprived of the power to grant final discharge to any parolee."

Two years later the indeterminate sentence law was repealed,1o and the provisions of the parole law were modified so as to conform to this change in the law relative to sentences.1 11

In 1936 a step in the direction of closer parolee supervision was taken through the creation of the office of director of probation and parole.12

By whom administered.-Although the statutes, as compiled, are somewhat ambiguous as to who has the power to parole, a study of the pertinent sections 18 leads to the conclusion that the power to parole those confined in the penal institutions of Kentucky rests in the newly established department of welfare, which in turn acts through its advisory

Ky. Acts 1914, ch. 70, p. 197.

10 Ky. Acts 1916, ch. 39, p. 430. Under this amendment the jury was required to fix by their verdict a punishment to be inflicted within the period prescribed by law. Albritten v. Commonwealth, 172 Ky. 274, 189 S. W. 204

(1916).

11 Ky. Acts 1916, ch. 38, p. 428. 12 Ky. Stat. (Carroll, 1936) § authority to grant paroles convict, and coax him, if possible, Minor, 195 Ky. 103, 241 S. W. 856 13 Ky. Stat. (Carroll, 1936) § 3828-1, provides that the State board of penitentiary commissioners has power to grant paroles with the Governor's approval. The State board of charities and corrections succeeded to the powers of the board of commissioners. Commonwealth v. Polsgrove, 231 Ky. 750, 22 S. W. (2d) 126 (1929). The department of public welfare in turn succeeded the State board of charities and corrections in 1932. Ky. Stat. (Carroll, 1936) § 216a-1. Despite this fact, the code compilation last noted carries the name of the board of penitentiary commissioners in the sections on parole. The 1936 Governmental Reorganization Act made further changes in this respect. First, the "board of welfare" in the welfare division of the Commonwealth at the time of this abolition was the board known as the "department of public welfare." Id. § 216a-1. It is evident that no other agency than this could have been within the purview of the act abolishing the "board of welfare." Nevertheless, the 1936 statutory compilation carries the section describing the "department of public welfare" and its officers. Id. 216a-1.

979b-9. "The statute which created the

was enacted in an endeavor to uplift the into a useful citizen." Commonwealth v. (1922).

Second, the Reorganization Act of 1936 also established a new "department of welfare," which has among other powers, that of management and control of penal institutions. Id. §. 4618-101. This "department" is headed by a commissioner of welfare and is advised by a board of welfare. Id. § 4618-102. For administrative purposes the department of welfare is divided into five divisions, one being that of correction, which has supervisory and administrative powers over the penitentiary, reformatory, and houses of reform at Greendale. Id. §§ 4618-102, 4618-106.

,"14

"board of welfare," 14 usually referred to as the "board." A former act conferring upon the circuit judge authority to parole in misdemeanor cases was previously declared

invalid.15

All paroles must have the approval of the Governor.16 The board of welfare is composed of five members who are appointed by the Governor." The commissioner of welfare is ex officio chairman of the board.18 No particular qualifications for board members are prescribed by the statutes, except that the commissioner of welfare, under whose direction the division of corrections operates, must be "thoroughly trained and experienced in penology and prison management." 10 Members of the board are appointed for overlapping terms.20

"Ky. Stat. (Carroll, 1936) § 4618-102. "Parole board.-Under the law paroles are granted by the board of welfare, with the approval of the Governor. Prior to the passage of the Reorganization Act of 1936, the board of welfare consisted of five (5) members. By the enactment of the Reorganization Act the commissioner of the department of welfare is made the administrative head of this department and the welfare board becomes merely an advisory group appointed by the Governor, their services to be compensated for on a per diem basis. It appears, therefore, that the parole board, as constituted under the Reorganization Act of 1936, is not adequate since there is no assurance that its members are properly qualified to pass on parole, nor does it appear that such members can devote adequate time to the consideration of parole applications." The Prison Labor Problem in Kentucky, a survey by the Prison Industries Reorganization Administration (1936) 4. "Besides managing the penal and charitable institutions of the State, the department of welfare is to administer and supervise all forms of public assistance; supervise all agencies and institutions caring for the dependent, handicapped, or aged; administer and supervise child welfare activities and children's institutions; supervise juvenile probation; administer mental hygiene work; provide welfare service to county governments; and some other related functions. The department will have five divisions, among which the division of corrections is one." Id, at 6.

15 Ky. Acts 1926, ch. 154, p. 717, wherein there was an attempt to confer upon the circuit judge authority to parole prisoners confined in jail for misdemeanors, was held to be invalid because it was in violation of the constitutional provision conferring on the Governor the right to grant reprieves. Huggins v. Caldwell, 223 Ky. 468, 3 S. W. (2d) 1101 (1928). 16 Ky. Stat. (Carroll, 1936) § 3828-2.

18 Ibid. The commissioner of welfare reviews the recommendations of the parole board and exercises a veto power before referring them to the Governor for final action.

19

10 Ky. Stat. (Carroll, 1986) § 4618-106.

20 Under the 1936 act the term of the first member expires December 31, 1936; that of the second December 31, 1937; those of the third and fourth December 31, 1938; and the last on December 31, 1939. Thereafter all appointments are for 4 years. Members are allowed $10 per diem and expenses while on official duty. Id. § 4618-102.