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at all. If the probation period is to run concurrently with the term of imprisonment it is difficult to conceive of any effective supervisory work being done by the probation officer; the individual is primarily controlled by the prison authorities, and he does not have the opportunity to prove that he is worthy of probation. On the other hand, if probation is to follow confinement, the individual is first exposed to the prison associations which it is the purpose of probation to avoid, with the result that any subsequent rehabilitation is rendered more problematical.

Where a defendant is convicted or pleads guilty to several indictments at the same time, it has been held that imprisonment may be ordered on the first indictment and imposition of sentence suspended and probation granted on the second and third indictments, to begin after the sentence on the first has been served.20 Technically, this situation is easily distinguishable from that presented in the Greenhaus case, but actually there is little difference; in both instances probation immediately follows a period of imprisonment, with the possible result that incarceration may have jeopardized the probation program.

Procedure: Review.-It is clear that only the district courts may grant probation, for the statute confers that power only on courts having original criminal jurisdiction. No provision is made in the statute for review of probationary proceedings by the circuit courts of appeal. Early in the history of the Probation Act the question arose whether one whose application for probation had been denied could obtain any review of such action. The cases adjudicating this point are not in harmony, but it is believed that a right of review does exist, although it is not clear from the cases whether the proper way to seek it is by mandamus or by an appeal.

In Nix v. James,21 one of the first cases arising under the Probation Act, the district court refused to hear an application for probation on the ground that the court lacked jurisdiction. The petitioner applied to the circuit court

Kelly v. United States ex rel. Frad, 89 F. (2d) 866 (C. C. A. 2d, 1937), cert. granted, 57 S. Ct. 946 (1937).

17 F. (2d) 590 (C. C. A. 9th. 1925).

of appeals for a writ of mandamus compelling the lower court to hear the application. The writ was granted. This case, then, would seem to be authority for the proposition that the trial court may be forced, by writ of mandamus, to hear an application for probation. However, the case is weakened on this point by the fact that the proper procedural technique for obtaining review was not argued, and the appellate court directed its main inquiry to the question whether the Probation Act applied to convictions had prior to its enactment.

Evans v. District Judge 22 refused the petition for a writ of mandamus. In this case, the district judge had denied the application for probation because he thought that he had no jurisdiction. The defendant sought mandamus to require the entry of an order reciting that denial of the application was made solely on the ground of lack of jurisdiction. In denying the writ, the court said that the power to grant probation "is plainly and purely discretionary. If probation is refused, it cannot concern this court whether the reason for the refusal is good or bad." The theory seems to be that not only is the trial court uncontrolled in the disposition it makes of the application for probation after hearing, but in addition, a hearing cannot be forced.

A better-reasoned opinion in another case 23 held that while mandamus will not lie to compel a district court to hear an application for probation, review may be had by an appeal. The lower court had denied the petition on the ground that it lacked power to hear it. Thereupon the defendant applied for mandamus to secure a hearing upon the merits. The circuit court of appeals observed that the Probation Act gave power to grant probation only to the courts of original criminal jurisdiction and made no provision for review. However, the circuit courts of appeal have power to review "final decisions" of the district courts; even assuming that the action of a judge under the Probation Act is discretionary (and hence not subject to appeal or writ unless discretion

22 12 F. (2d) (C. C. A. 6th, 1926).

23 In re Gilbough, 13 F. (2d) 462 (C. C. A. 2d, 1926). In accord is Kriebel v. United States, 10 F. (2d) 762 (C. C. A. 7th, 1926), where denial of petition for probation on ground of lack of jurisdiction was reversed upon writ of error.

is abused), the court felt that a denial, not of action, but of power to act, was a decision and whether it was a "final decision" within the judiciary code could be tested by appeal. Therefore, since the court was of opinion that an appeal could be had in this case, it refused mandamus because the latter remedy will not be awarded if an appeal will lie.

It has been held that no appeal lies from an order declining to take jurisdiction of an application for probation.24 This court reasoned that an order declining to take jurisdiction was not a final judgment, and thus no appeal would lie. The court intimated, however, that if the court below had either granted or denied the application an appeal could have been prosecuted. Such reasoning creates an anomalous situation; it permits review of the action taken on the petition in a matter purportedly within the discretion of the trial court, and yet allows the trial court to defeat any effort at review by the negative action of declining to take jurisdiction. Assuming that the trial court did have jurisdiction (and nothing in the facts indicates otherwise), it would seem that the court should not be permitted to decline to exercise it but should be held to its duty to hear the application. Then, after hearing the petition, its action thereon should be reviewable only for abuses of discretion.

Persons eligible.-Theoretically, probation may be granted to any person except where the punishment for the crime may be death or life imprisonment.25 Within this limitation, the discretion of the court as to who shall be placed on probation is uncontrolled.

Since the power to grant probation is a discretionary one, it follows that there are no specific grounds which entitle a defendant to demand the privilege. Probation, being a matter of grace and not of right, "there is no requirement that it must be granted on a specified showing." 26 Recommendations of leniency by the convicting jury; 27 old age, chronic ailments, or hardship to family; 28 or a pending pe

24 Green, Moore & Co. v. United States, 29 F. (2d) 740 (C. C. A. 5th, 1928). 2018 U. S. C. § 724 (1934).

Burns v. United States, 287 U. S. 216, 220 (1932).

United States v. Nix, 8 F. (2d) 759 (D. C. Calif. 1925).

28 United States v. Meagher, et al., 36 F. (2d) 824 (D. C. Mont. 1929).

tition for pardon 29 do not constitute undeniable claims to probation. The qualifications of each individual are to be considered separately. Thus, where one codefendant is placed on probation the other cannot object because his application is refused.30 It is the duty of the judge to grant or withhold probation as he sees fit, in a sound exercise of his judicial discretion; and to specify the grounds upon which probation must be granted would crystallize practice and would probably result in unworthy individuals being placed on probation.

Investigation to determine eligibility.-The statute provides that the probation officer shall investigate "any case referred to him for investigation by the court in which he is serving and to report thereon to the court." 32 The practice is, in most cases, to conduct presentence investigations. These vary from slight investigations, consisting chiefly of an interview with the defendant, to a complete report including home visits, community contacts and preparation of a complete social case history. The thoroughness of the investigation depends upon the time available and the case load of the officer. In some cases the court grants probation at the time application is made, in which case the probation office has no opportunity to conduct presentence investigations.

Terms and conditions.-The court is authorized to impose such terms and conditions as it may deem best, subject to modification at any time during the probation period. The probationer may be required to pay a fine imposed at the time of being placed on probation in one or several installments, to make restitution to the aggrieved party, or to support his legal dependents.33 It has been held that revocation may be had for the violation of conditions imposed orally and not included in the written order of probation.34

Since the court cannot enter an order granting probation after service of sentence has begun, it seems to follow that

20 United States v. Davis, et al., 19 F. (2d) 536 (D. C. Idaho, 1927).

20 United States v. Gargano, 25 F. (2d) 723 (D. C. La. 1928).

22 18 U. S. C. § 727 (1934).

23 18 U. S. C. § 724 (1934).

United States v. Mulligan, 48 F. (2d) 93 (C. C. A. 2d, 1932); Dillingham v. United States, 76 F. (2d) 35 (C. C. A. 5th, 1935).

imprisonment may not be made a condition of the probation order.

If the person is a drug addict, the court may impose a condition that the defendant submit to treatment at a United States narcotic farm until discharged therefrom as cured.35

36

Length of probation period.-The probation period, together with any extensions, cannot exceed a maximum of 5 years. But this is the only limitation. Thus, it has been held that the probation period may run longer than the maximum period for which the defendant could have been imprisoned. The running of the probation period is tolled if the probationer violates the terms of his release and is incarcerated in a State prison for a crime committed while on probation.38

Revocation. The maximum period of probation cannot exceed 5 years. During that time the court may revoke the probation, modify any condition thereof, or change the length of the period. The probationer remains in the court's custody, and at any time within the period he may be arrested and brought before the court which granted the probation.10 Such arrest may be made by the probation officer without warrant or upon warrant, which may be executed by either the probation officer or United States marshal of either the district where the probation was granted or of any district in which the probationer may be found. Although the maximum period of probation is limited to 5 years, the court may, after the expiration of the period, but within a maximum period for which the defendant might

35 45 Stat. 1088 (1929), 21 U. S. C. § 233 (1934). 2018 U. S. C. § 724 (1934).

87 Hollandsworth v. United States, 34 F. (2d) 423 (C. C. A. 4th, 1929). 83 United States ex rel. Demarois v. Farrell, 87 F. (2d) 957 (C. C. A. 8th, 1937).

A Federal probationer may not be bound over to a State court for an alleged crime committed prior to sentence in the Federal court, without the consent of the latter. Grant v. Guernsey, 63 F. (2d) 163 (C. C. A. 10th, 1933), cert. denied, 53 S. Ct. 688 (1933).

40 The provisions of the act are to be executed by the court in which the defendant was convicted or pleaded guilty. A judge from district B who had been temporarily assigned to district A, is without jurisdiction when back in his own district to terminate probation proceedings in a case heard by him while on temporary duty in district A. Kelly v. United States ex rel. Frad. 89 F. (2d) 866 (C. C. A. 2d, 1937), cert. granted, 57 S. Ct. 946 (1937).

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