29

defendant, unless it has, previous to that time, revoked the probation and imposed judgment. As judgment cannot be imposed in a felony case unless the defendant is present,30 this might mean that a defendant who violated his probation and who avoided being brought before the court until the total term had expired, could not thereafter be held.

Probation officers: Appointment and qualifications.— Complete authority for appointment of probation officers lies in the court.1 In Maricopa County, the two judges presiding over criminal divisions make the appointments of the two adult probation officers. There are no statutory qualifications or restrictions on this appointive power, as there are in the selection of a juvenile probation officer.32

The adult probation officer serves at the pleasure of the judge 3 and his salary is fixed by the judge, not to exceed $200 a month.84

Probation officers: Powers and duties.-The duties of the adult probation officer are:

To keep records and reports of all persons placed under suspended sentence and the conditions of such suspension; Supervise all persons under suspended sentence;

Serve warrants and make arrests in matters of suspended sentence;

Receive and disburse moneys paid under provisions of suspended sentence;

Investigate cases referred by court;

Keep informed on conduct of probationers and bring de faulters into court.85

This report blank calls for information of the following type: The residence of the probationer, the kind of employment he is engaged in, the employer, his earnings, whether he has received medical treatment, what he does with his leisure time, his fraternal affiliations, his attendance at religious services, a statement as to any trouble he may

20 Ex parte Keene, 47 Ariz. 195, 54 P. (2d) 791 (1936).

30 Ariz. Rev. Code Ann. (Struckmeyer, 1928) § 5102.

1 Id. (Courtright, Supp. 1936) § 5106.

2 The chief probation officer attached to the juvenile court is selected by competitive examination. Id. § 1930.

33 Id. 5106.

24 Id. § 5107. 35 Id.

5108.

have had, and a request for suggestions as to how the probation officer may be of assistance. A kardex record is kept for each probationer on which is checked the dates on which the probationer reports and a brief summary of the case and conditions of probation. The advantage of this latter type of record is its quick and convenient availability for reference when the probationer comes into the office. On these forms is also kept a record of any payments of money made by the probationer for purposes of restitution or support.

In Maricopa county the probationers at first are usually required to report in person weekly; this is later modified to twice a month.

36

Probation officers: Duty of supervision.-The adult probation officer is charged with the general supervision and observation of all persons under suspended sentence, subject to the will and direction of the court. He is to keep informed regarding the conduct of every person placed under suspended sentence and report the same to the court.37 One condition of probation which is always imposed is the requirement that the defendant report to the probation officer at certain stated intervals, weekly, biweekly, or monthly. It is through such reports that the probation officers primarily keep informed regarding the conduct of their probationers.

In Maricopa county, a regular printed form is provided which is filled out and signed by the probationer and filed with the probation officer each month.

In Pima County, because of the limited time and energy that can be devoted to adult cases by the single probation officer, only a summary kardex record ss is kept on each probationer, and no other report forms are used. This record is checked at the time of the visit of probationer. The usual requirement for reporting in Pima County is once a month.

In all instances where the probationer resides outside of the vicinity of the county seat or outside of the jurisdiction of the court his reports are made monthly by mail. These

Ibid.

Ibid.

38 This is the same card used in Federal probation offices.

73115-39-VOL. I-6

may be sent in directly by the probationer, or by arrangement they may be filed with some peace officer of the locality in which the probationer resides and forwarded to the probation office by such officer.

Field supervision.-Because of limitations in personnel and the large amount of time and energy which has to be spent in making investigations, the supervision of probationers is accomplished primarily through reports of the probationer either personal or written. Maricopa County has two full-time adult officers and no clerical staff whatever. With a case load of two to four hundred per officer and some 300 or more investigations to be made each year, very little time can be devoted to field supervision. It is only in those cases where the probation officers receive information that the probationer has violated the conditions of his probation or is about to violate them that they can spare the time to go into the field and look up the probationer. Even in presentence investigations, these officers are unable to take the time to make all the contacts with the family, the employer, and the friends and associates of the defendant that they feel should be made. In Pima County there is no field supervision possible in adult probation cases. Official sponsors or advisers to probationers are not used in Arizona.

Interstate cooperation.-An act of 1937 authorized the Governor to enter into compacts with the authorities of other States for the transfer of parolees and probationers and for their out-of-State supervision.

PAROLE

39

History.-Parole in Arizona was first recognized in the territorial laws of 1901. Under the provisions then enacted, upon the recommendation of the superintendent of the territorial prison, the territorial auditor, and the citizen member of the board of control, the Governor might grant parole to a first offender after he had served 1 year.1 Provision was also made for equipping the parolee when released.2

29 Ariz. Laws 1937, ch. 42.

1 Ariz. Rev. Stat. (1901) §§ 3590-3594.

2 Id. §§ 3595-3596.

The first indeterminate sentence law was adopted in 1907.3 Under the provisions of that act the court, in its discretion, except in cases of first-degree murder or in cases of offenders who had served time in prison previously, might impose, instead of a definite sentence, a "general sentence," with a minimum and a maximum not exceeding the maximum provided by statute. No prisoner could be released until the minimum had been served. The Governor had authority to parole these indeterminate sentence prisoners according to provisions applicable to other prisoners. Parolees were in the legal custody and under the control of the Governor and the board of control.⭑

This law was amended in 1909, but little change was made except that paroles were granted by the Governor on recommendation of the board of control."

The indeterminate sentence law was amended by an act of the first legislature of the State in 1912. That act took from the sentencing court discretion to choose between a definite and an indeterminate sentence and compelled the court to impose an indeterminate sentence in all cases, except those of first-degree murder, or offenses committed before the enactment.8

The same act provided for the administration of the parole laws by a "board of commissioners of paroled prisoners," consisting of the Governor, auditor, attorney general, prison physician, and the prison warden who was the chairman."

With the adoption of the Penal Code of 1913 that board was superseded by the "board of pardons and paroles” as constituted at present.10 Another provision gave the exclusive power of parole to the new board.11

Ariz. Laws 1907, ch. 37, § 1.

• Id. § 2.

Ariz. Laws 1909, ch. 101, § 3.

e Id. 4.

Ariz. Laws 1912, ch. 46, § 1.

La Porte v. State, 14 Ariz. 530, 132 Pac. 563 (1913).

Ariz. Laws 1912, ch. 46, § 2.

10 Ariz. Penal Code (1913) § 1301.

" Id. § 1302. The Governor was not in sympathy with these acts and he vetoed them. They were passed over his veto and referred to the people who approved them in 1914. An attempt was made later to return certain parole powers to the Governor (Ariz. Laws 1919, ch. 78) but failed on referendum to the people in 1920.

The parole law as adopted in the Penal Code of 1913 has undergone practically no change since.12

By whom administered.-Parole is now granted and administered by the board of pardons and paroles 18 which consists of the attorney general, the superintendent of public instruction 14 and a citizen member, selected by the other two members 15 The citizen member is chairman of the board. Provision is made for the payment of the expenses of all members of the board and for the salary of the citizen member.10

The parole clerk at the State prison acts as the secretary for the board.17

No persons other than the citizen member of the board are employed to supervise parolees.

The board has exclusive power to grant paroles and the Governor has no connection with parole procedure other than to transmit to the board any applications for parole which he receives.18 The board may make such rules and regulations for the conduct of its business as it may deem proper. 19

12 The provisions of the Penal Code of 1913 were copied largely from the California Penal Code.

13 Ariz. Rev. Code Ann. (Struckmeyer, 1928) § 5220.

14 These officials are elected for 2-year terms. Ariz. Const. art. V, § 1.

15 Ariz. Rev. Code Ann. (Struckmeyer, 1928) § 5219. In 1935, one of the er officio members of the board was newly elected to office and one was reelected. The newly elected member was desirous of changing the board chairman but the reelected member did not desire a change. A test case was taken to the supreme court. The holding was that since the board of pardons and paroles was a continuing body despite changes in membership, after the citizen member is appointed he can be removed only by joint action of the two officers appointing him; and in the absence of a vacancy, the citizen member continues in office until the qualification of his successor. Hofman v. Frohmiller, 45 Ariz. 365, 43 P. (2d) 1007 (1935).

10 Ariz. Rev. Code Ann. (Struckmeyer, 1928) § 5219. Each member receives actual traveling and hotel expenses while performing duties pertaining to the board. The citizen member receives $7 per day while performing his duties, or about $1,400 per year.

17 Ibid. The clerk is appointed by the Governor and receives $200 per year. Ariz. Rev. Code Ann. (Courtright, Supp. 1935) § 2929. He has other duties as a prison employee.

18 Id. (Struckmeyer, 1928) § 5220. This incidental duty of the Governor does not affect the board's exclusive power over parole. State v. Super. Ct. 30 Ariz. 332, 246 Pac. 1033 (1926). Exclusive power over parole is given to the board by statute and the Governor is powerless to release on parole. Laird v. Sims, 16 Ariz. 521. 147 Pac. 738 (1915).

19 Ariz. Rev. Code Ann. (Struckmeyer, 1928) § 5223. The board has established rules governing parole from jail. Rules of the Board, Nos. 29–32.