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 Probation
Introduction
Probation is a form of disposition made by the cour. It
suspends final judgment and instead of commitment to a penal
or correctional institution it provides treatment while the of-
fender continues to live in the community. The National Com-
mission on Law Observance and Enforcement defined it as"ao
process of treatment-prescrihehy the-_ourt for persons con-
victed of offenses against the law during which the individual
on_probation lives in the community and regulates his own life
under conditions im~posed by the court- (or other constituted
authority) and is su Ject to supervision by a probation officer."'
It is in the nature of a contract, in which the offender agrees to
certain terms imposed by the court in return for his release.
When he fails to fulfil these terms or commits another offense
,he has violated his probation and' is subject to return to the
court for other disposition.
Legally probation rests on the right of the court to suspend
sentence, and without exception the appellate courts have up-
held this principle either as an inherent power or as one which
may be conferred by statute. The practice of suspending sen-
tence and releasing on recognizance goes far back into Anglo-
Saxon history and was brought to the colonies as part of the
common law. Suspensions may be of two kinds, suspension of
the imposition of the sentence or of its execution. In the first
instance the court imposes no sentence. In the second instance
the court imposes the sentence and suspends or defers its execu-
tion. In either case the court releases the offender conditionally.
In a few states'probation may be used before conviction or be-
fore sentence is imposed or suspended.2
If the imposition of a sentence is suspended and the offender
INational Commission on Law Observance and Enforcement Report on Penal Institutions,
Probation and Parole Washington, D. C., Government Printing Office, 1931, p. 184
2Gilbert Cosulich Adult Probation L ws of the United States New York. National Pro.
bation Association, 1940, p. 16
 PROBATION

violates the terms of probation, the judge may then impose any
sentence he might have imposed originally. If a sentence was
imposed but its execution suspended, and the offender violates
the terms, the judge may then order the execution of the sen-
tence. Probation is different from mere suspension of sentence,
however. It implies specific conditions and treatment under super-
vision, while suspension of sentence implies only general condi-
tions, without supervision.
Probation is not to be interpreted as leniency or mercy,
allowed because the court has been swayed emotionally. LIt is a
form of treatment consciously chosen because there is reason to
believe that the interests of society can be protected, while at
the same time the needs of the offender can be met in this man-
ner better than in any other. .
Probation should not be confused with parole. Parole comes
after sentence has been imposedand a period of imprisonment
served. Furthermore, 1 robation extends the power of court over
the conduct and destiny of the offender, while in parole the court
has already surrendered its authority through commitment to
an institution 'Probation is usually connected directly with the
courts and is a matter of judicial discretion, while parole is con-
nected with the administrative side of government and is de-
termined by a paroling authority. Both are conditional release
however; the conditions imposed are similar and the methods
of case work treatment are the same.
From a social point of view probation implies constructive
treatment. The emphasis has been changed from punishment
and retribution to- an effort to readjust the individual so that
he will cease his antisocial behavior. Thus it is preventive in
nature. Theoretically there is recognition that in certain be-
havior problems commitment may be unnecessary or may be
unsuitable to the type of case involved.
Probation permits a normal family life in the community
and avoids the bad effects of prison. It preserves the natural
lExceptions to this exist in some states in the use of judicial or bench parole for prisoners
in county penal institutions and in cases of children committed to co. rectional institutions.
 PROBATION AND PAROLE

contacts and activities of social living and adds the constructive

services of a probation officer. Its essence is treatment through
the application of scientific case work principles, with the author-
ity of the law behind it, and it includes definite social functions
such as investigation, diagnosis and supervision.

History and Development

Probation was adopted after the criminal code became less
severe and vindictive and after the social sciences had begun to
exert their influence. Historically the practice of Massachusetts
is important because it was the first state to use probation, both
as an informal court procedure and by statutory authority, and
its experience has influenced practice and law in other states.
The first statute was passed in 1878, but before that point was
reached there had been a long period of evolution in the Mas-
sachusetts courts, growing out of the desire to escape from the
rigidity of the penal law.
One of the devices employed was the ancient practice of
benefit of clergy, developed in the English courts and originally
used to enable the clergy, and later anyone who could read, to
escape severe punishment. The power was recognized in the
colonies but it fell into disrepute because of its unequal applica-
tion and disappeared about the end of the nineteenth century.
Another device was found in judicial reprieve. This Blackstone
describes as the "withdrawing ofiasentence for an interval of
time" or suspension. This was apparently a common practice
but in England it was not an indefinite suspension. The practice
was brought over to this country and was upheld in a number
of court decisions, although a few denied the power. The at-
tempt of American courts to suspend sentence indefinitely ap-
parently goes back to this early English practice of judicial
reprieve and gave an excuse for the use of judicial discretion.
Another early method was to release and hold in security
for good behavior. By 1830 it was apparently a general prac-
tice to permit the offender to go on his own recognizance, and
 PROBATION

no sentence was pronounced if the behavior was good.' In the

revised statutes of 1836 the courts were permitted to discharge
certain classes of offenders if they had friends who would give
security for their future good conduct. 2 Still another method
was to file the case, either in minor offenses or in cases where
there were extenuating circumstances, and so avoid passing sen-
tence. This was in effect a suspension of sentence and not a
dosing of the case because it could be taken from the files at
any time for sentence.
Thus it was through judicial experiment with methods of
suspending the sentence that the basis of the probation system
was laid.) Evidently this was believed to be within the common
law powers of the judge and was developed as part of the ad-
ministration of justice, just as rules of evidence developed in
the common law courts and equitable remedies in chancery. New
principles were applied to meet the needs of justice in a growing
and changing community.
John Augustus These early legal devices lessened the puni-
tive effect of the criminal law, but they made no effort to give
constructive help to the offender or to extend the authority of
the court over his life. The first informal attempt at actuaf
probation treatment came through the work of John Augustus,
a Boston shoemaker. According to his own story he was in the
Boston police court on an August morning in 1841. When a
wretched-looking man charged with being a common drunkard
stood before the judge John Augustus "a fidgety old fellow,
whose skin looked like a piece of brown parchment" arose in
his place and asked the judge to put tht man under his care.
The judge agreed and the prisoner was bailed in the custody of
John Augustus. The drunkard was ordered to appear for sen-
tence after a period of probation. When he later returned to
court "no one, not even the scrutinizing officers, would have
believed that he was the same person."
lAttorney General's Survey of Release Procedures Washington, D. C., Government Printing
Office, 1939, Volume II, p. 19; and Frank W. Grinnell "Probation as an Orthodox Common
Law Practice in Massachusetts Prior to the Statutory System" Massachusetts Law Quarterly
August 1917, Volume II. p. 601
2Attorney General's Survey of Release Procedure; Voume II, p. 20
 PROBATION AND PAROLE

After this successful experiment John Augustus continued

the practice in the Boston courts. He gave up his work as shoe-
maker and during eighteen years of service bailed out some
2000 offenders who gave promise of reform. It is said that
only ten of that number absconded. In 1852 he published a
report which accounted for his work with the offenders and
for the expenditure of funds which had been entrusted to him.'
He carried out the rudiments of case work practice, taking care
"to ascertain whether the prisoner were a promising subject
for probation," and providing regular supervision as well as
various services in the form of relief, employment and schooling.
About the middle of the nineteenth century a number of
private agencies for the protection and care of children and
for aid to prisoners were established. Some of them placed
agents in the criminal courts to protect the interests of children,
there being no juvenile courts at that time. At first the work
was unofficial, but later the agents gained legal status, made
investigations and acted as officers. Public agencies also per-
formed this service, notably the state visiting agent in Massa-
chusetts, appointed in 1869 to investigate and take custody in
children's cases and t6-i'hdenture or place them with private
families if necessary. The agent also attended hearings when
reformatory commitment was under consideration. This
amounted to a probation service and affected in its first year
twenty-three per cent of the children in the Boston courts. A
county agent was appointed in Michigan in 1873.
The First Statute Probation was first established by sta-
tute in Massachusetts in 1878. The law applied only to the
courts of criminal jurisdicto0n in Suffolk county, but it contained
the fundamentals of a probation system and provided for a
salaried officer appointed by the mayor. In 1880 a permissive
law allowed cities and towns to appoint officers. Statewide pro-
bation was attained in 1891, when it was made mandatory for
each police, district and municipal court to appoint an officer.
The judiciary rather than the municipal authorities was given
1John Augustus, First Proba!ion Officer (reprint of Report of Johx Augustus Boston,
1852) New York, National Probation Association, 1939
 PROBATION

the power of appointment. In 1898 the superior courts were

given the authority to appoint probation officers. Thus the
system in Massachusetts began in the lower courts and extended
to the superior courts, while in other states the opposite situa-
tion has existed and extension to the lower courts has been slow.
Maryland was the second state to pass a probation law, in
1894; Vermont in 1898; and Illinois, Minnesota and Rhode
Island in 1899. The laws of Illinois and Minnesota related
only to children. Thus there were six states with probation leg-,
islation before 1900, but only four dealt with adult probation.
' In many states the development of probation was closely
connected with- that of the- juvenile court. The first juvenile
court law was passed in Illinois in 1899, and in that and all
subsequent laws probation was authorized. Probation is also
provided for certain adult cases over which juvenile courts have
jurisdiction.
Present Status At the present time forty-two states, Alaska,
the District of Columbia, Hawaii and Puerto Rico have laws
which authorize adult probation. The federal service was estab-
lished in 1925 and applies to United States Courts throughout
the country. Alaska and Puerto Rico operate as part of this
system. Forty-six states, Alaska, Puerto Rico, Hawaii and the
District of Columbia have juvenile court laws with provision
for juvenile probation. Maine, Wyoming and the Philippine
Islands do not have express provision for juvenile courts, but
they have juvenile probation laws or some form of special pro-
cedure in children's cases.'
In the early days the emphasis was on acceptance of the
idea, and extension and development of the system was hap-
hazard in many ways. Many of these systems are now inade-
quate to modern demands and the emphasis is being placed on
improvement of the service.
Probation was used unofficially in the federal courts without
IThe statistical material on this and the following pages is taken from Adult Probation Laws
of the United States by Gilbert Cosulich; from the Attorney General's Survey of Release Pro-
ceduwres Volume II; and from material available in the office of the National Probation Asso-
ciation.
 PROBATION AND PAROLE

statutory authority but its use was declared illegal in 1916 in

the Killits case,' which denied the right of the federal courts
to suspend sentence. In 1925 probation was authorized by Con-
gress and its administration was placed under the Bureau of
Prisons in the United States Department of Justice. In 1939
the act establishing the Administrative Office of the United
States Courts transferred to it the federal probation service. In
the fiscal year closing June 30, 1941, 13,437 persons were placed
on probation. This was approximately 34 per cent of those
found guilty by the courts. A total of 58,913 persons were
supervised by the probation officers during this period. This
number included 5410 paroled prisoners and 10,845 prisoners
on conditional release. At the close of the year there were 239
probation officers in the service. The average case load was 147,
of whom 24 were on parole or conditional release.!
The Use of Probation It is impossible to get definite in-
formation on the extent to which probation is used because many
states do not, report their figures fully or regularly. Few of
them have central agencies which collect or publish judicial sta-
tistics and few probation departments issue standardized reports.
Since 1932 the Bureau of the Census has collected statistics on
the disposition of cases in courts of general criminal jurisdiction,
through the voluntary cooperation of the clerks. While all
courts are not included, these figures are fairly complete. The
1940 returns, the latest available, for twenty-six states and the
District of Columbia are shown in the following table:
Sentence or Treatment Number Per Cent
Total defendants sentenced ....... 59,026 100.0
State prisons and reformatories'. . 22,084 37.4
Probation or suspended sentence. .19,847 33.6
Local jails and workhouses ...... 12,952 21.9
All other sentences ............ 4,143 7.0
2Ex parte UnTted States, 242 U. S. 27
2Annuao Report of the Director of the Administrative Office of the United States Courts
bound with Report of the Judicial Conference of Senior Circuit Judges Washington, D. C.,
Government Printing Office, 1941
Slncludes 63 death sentences
 PROBATION

Within these reporting states there is a wide variation in

the use of probation and the suspended sentence ranging from
14.1 per cent in North Dakota to 60.3 per cent in Rhode Island.
The more important states from point of size show the follow-
ing percentages: Massachusetts, 32.8; Ohio, 43.4; Pennsyl-
vania, 26.6; New Jersey, 36.3; and New York, 35.0. These
figures relate only to courts of general criminal jurisdiction and
to major crimes. Furthermore, the figures include suspended
sentence as well as probation, so it is impossible to know just
how many of these cases had actual treatment on probation.
Another method of appraising the use of probation is to
compare it with imprisonment. According to the census, an
average of 48.3 persons out of every 100,000 in the United
States were committed to state prisons and reformatories in
1930, but in New York the average was only 26.5 and in Mas-
sachusetts 22.8 or about one-half the average number. Since
these two states make extensive use of probation the influence
of this on the number of institutional commitments is obvious.
It is difficult to know the exact number of probation officers
in service throughout the country but the National Probation
Association compiles a directory at intervals which shows for
recent years all reported probation officers, paid and volunteer,
full time and part time, as follows:

Year Probation Officers

1922 ......................... 2,656
1925 ......................... 3,018
1927. ......................... 3,591
1931 ......................... 3,955
1934 ......................... 4,195
1937 ......................... 4,920
1941 ......................... 5,508

Probation Standards Probation is still in the state of "ex-

tensive cultivation." The standards vary widely; personnel is
still poorly selected in many places, with no basic qualifications
 PROBATION AND PAROLE

and no uniform system of appointment; presentence investiga-

tions are still inadequate; and supervision in many instances is
nothing more than receiving occasional reports in person or by
mail. Some case loads are so heavy that home visits cannot be
made, and no time is devoted to the use of resources, to the
development of a constructive relationship or to therapeutic
measures.

The proper standards of probation should include:

1) Full power to place adult offenders on probation without hamper-
ing restrictions
2) Complete presentence investigation in each case before probation
is granted
3) Careful selection of cases
4) Qualified personnel
5) Provision of men and women officers, and for juvenile offenders
officers trained in children's work
6) Case loads of not over fifty
7) Intensive supervision according to sound case work
8) Revocation of probation in case of failure or menace to society
9) Adequate staff organization and machinery

The state should have definite power to establish standards

and to enforce them, exercised through a bureau or commission
with workers technically qualified and with research facilities
to study conditions and test procedures.

Organization and Control

In general the control of probation rests in the hands of
the court. This is natural, since the practice originated in sus-
pension of sentence and is considered an extension of the judi-
cial function. With the development of complex case work ser-
vices a new point of view has appeared, which holds that the
supervisory part of the probation function is administrative and
should be organized under an administrative agency. The sup-
porters of this idea point out that after commitment to an in-
stitution the offender comes under the care of an administrative
 PROBATION

agency and there is no reason why the same method should not
be extended to probationers. In its philosophy this idea re-
sembles somewhat the thinking of those who would divide the
functions of the court.' In fact there are some who would go
so far as to give to another authority, such as the Youth Cor-
rection Authority, even the power to decide whether to use
probation or not. It is felt that the judges are not necessarily,
fitted to carry on a large and complicated piece of administra-
tive work. Their education lies in another direction and they
are not always familiar with standards of good case work. Fur-
thermore, they have heavy judicial duties which limit the time
they can devote to administrative details.
The attitude of the judiciary toward probation has undue
importance because an unsympathetic judge can render even a
good probation law ineffective. Interviews with 270 state and
federal judges made during the Attorney General's survey of
release procedures' showed that while many of them expressed
sympathy with probation in general terms, their practice re-
vealed that they did not understand its use as treatment.
Learning in the law is not sufficient, there should be social-
mindedness and a sympathetic interest in people. There should
also be administrative skill and knowledge of how a probation
department should be set up and run, a task which requires
executive leadership from some one specifically trained and ex-
perienced in the field. To mitigate the situation there has been
a consolidation of the probation services in some of the larger
courts so that one probation department, with an executive offi-
cer in charge, covers the work of all courts in a county or city.
At the same time a trend in another direction is toward state
participation or control. This takes two major forms: super-
vision of services, and complete administrative control. The
early efforts were supervisory in nature, largely for the purpose
of giving technical aid and collecting statistics. The first state
probation service was established in New York in 1907, the
iSee discussion p. 76 ff.
2Attorney General's Survey ol Release Procedures Volume II, p. 411
 PROBATION AND PAROLE

second in Massachusetts the following year. They promoted

regular meetings of probation officers, offered advisory service
to the judiciary and informed and stimulated public opinion.
A more recent setup gives to the state definite powers of
control, or even complete control over probation. Thirty-two
states have state participation in some form. In an increasing
number there are separate probation or probation and parole
boards. In others the supervising authority is a part of the de-
partment of welfare or corrections. In twenty-one states the
administration of probation has been taken over entirely by the
state, including the appointment, payment and supervision of
all officers on a statewide basis. Rhode Island was the first to
develop full state control in 1899. No two states are exactly
alike in the form of supervision which they offer. In some the
mere letter of the law is fulfilled while in others an adequate
and helpful service has been established under much the same
type of law.
Another administrative trend is found in the tendency to
combine probation and parole. Since both operate along the
same case work lines and since in both the trend has been toward
centralized state control, a combination of these two functions
follows logically. The increase in relief services during the de-
pression also played a part in administrative changes through
the establishment of county welfare boards in many states. These
provided other social services as well as relief and it was nat-
ural to include probation and parole, particularly in children's
cases. Such a combination is valuable in rural areas where
neither the financial resources nor the number of cases warrants
the employment of two workers. Since 1930 probation and
parole have been combined by the federal government, the fed-
eral probation officers having supervision over the federal pris-
oners on parole.' Thus the trend in these combinations appears
to be to unite adult probation with parole, and to tie juvenile
probation into the general child welfare services of the state
or county.
iThe administration is not combined, however, parole being under the United States De-
partment of Justice and probation under the Administrative Office of the United States Courts.
 PROBATION

The Appointment of Personnel The early probation officers

were volunteers. They were replaced by paid officers after pro-
bation was legally established by statute but volunteers still
serve in a good many small courts. When their work becomes
too heavy or when they have demonstrated the need of pro-
fessional service a part time or full time salaried officer is fre-
quently appointed. Volunteer service has aided the development
of probation, but it has always proved inadequate for profes-
sional case work and for the needs of large courts. Where
volunteers are used under modern systems it is for a specific
service rather than for full control of the case. In the early
development of probation peace officers were also used, but this
has been discouraged except in the smaller and more backward
communities because the objectives of the two services differ.
Appointment of paid personnel is for the most part made
by the judiciary, but selection is limited in an increasing number
of states by civil service laws or by the requirement for exam-
*ination or approval by a state authority. In statewide systems
appointments are usually made by the state board. Whether
appointments should be made by the judiciary alone is a ques-
tion open to argument. The close connection with court pro-
cedure makes this seem logical but judges who must seek elec-
tion are sometimes influenced by political considerations; their
tenure is often brief and therefore the officers change frequently;
they do not always understand the social nature of the proba-
tion service and do not insist on knowledge of case work; and
since the courts are decentralized and independent it is not pos-
sible to develop uniform personnel standards.
In all parts of the country changes are taking place in per-
sonnel selection. Five states, Michigan, New Jersey, New York,
Rhode Island and Wisconsin, and the District of Columbia, re-
quire civil service, while in three states civil service is required
for certain counties. Indiana and Kentucky are empowered to
hold competitive examinations through a state agency. Con-
necticut provides for examination for juvenile court appoint-
ments by the state personnel department. Unofficial merit sys-
 PROBATION AND PAROLE

tems have also been set up in jurisdictions where there is a

special interest in high standards. While the trend in state
systems is definitely toward a statutory merit system many of
the courts are following in this direction on a voluntary basis.
The state of Missouri and the cities of Pittsburgh, Philadelphia
and Toledo are examples of this.
The number of adult probation officers to be appointed is
left to court discretion in fourteen states or parts of states. In
other states the maximum number is specified exactly by statute
or is proportioned to the population growth of the community.
Provision for the appointment of juvenile probation officers is
usually made in the juvenile court law and in most states is left
in the hands of the judge. In a few jurisdictions at least one
paid officer must be appointed:
As a rule the qualifications of probation officers are not
specified in the statute or if they are it is in very general terms,
such as "discreet persons," or "persons of good moral charac-
ter." Residence in the county is required in three states and
several states require that officers shall not be members of a
police force. Supervision of women's cases by women officers
is specified in several statutes. New York is the only state which
prescribes the qualifications of the officers in detail. They must
be between twenty-one and fifty-five years of age, physically, men-
tally and morally fit and with the equivalent of a high school
education as a minimum.
Since probation is the application of case worj.to individuals
outside institutions, it is part of the generic field of case work
and in both training and practice it should be identified with it.
Qualifications are the same as for a professional social worker
and technical training in case work is necessary. Thus basic
preparation for the field falls within the province of the pro-
fessional schools of social work and eventually it will undoubt-
edly lie in their hands.
As early as 1923 a joint committee of the National Pro-
bation Association and the United States Children's Bureau
 PROBATION

proposed the following minimum qualifications for probation

personnel:
") Education-preferably graduation from college or its equivalent,
or from a school of social work
2) Experience-at least one year in case work under supervision
3) Good personality and character, tact, resourcefulness and sympathy
T.kese standards have been raised in some courts. For ex-
ample, in Los Angeles in 1928 only a high school education or
its equivalent plus a year's experience in work with boys or girls
was required. In 1937 the requirements were "graduation from
university or college or a recognized school of social work or
five years paid experience with a recognized case work agency."
In the centralized county and state services the qualifications
have been developed on a higher basis than in the smaller urban
and rural systems, but in the vast majority of courts not even
the minimum level of the 1923 standards has ever been attained.
In 1938 the United States Department of Justice advocated
a minimum standard of college education or its equivalent in
several forms of special training, plus two years experience as
a probation officer or as a case worker with an accredited agency.
There are no statutory requirements for appointment, and the
federal system is not under civil service.
Since the standards of appointment are still so low and so
lacking in uniformity the value of in-service training in the pro-
bation field is recognized. It is necessary to be realistic and to
recognize that these untrained officers will continue on the job
for a period of years. While in-service training is never a sub-
stitute for professional training it can be used to correct mis-
takes which these officers make and to improve their work. The
federal system has instituted a regular program of in-service
training and some of the leading courts have developed staff
improvement projects of various types. Only a minority of the
probation officers are affected by these classes however and
there is very little connection with schools of social work or
universities.
 PROBATION AND PAROLE

Removal from Office Where there is state control, removal

lies in the hands of the appropriate state agency or civil service
commission, but in general probation officers hold office during
the pleasure of the judiciary. Only a few states require that
cause be shown or a hearing given in cases of dismissal. It is
generally felt that the relation between the judge and the pro-
bation officer is so close that the court should not be obliged to
retain an officer it does not want. On the other hand if stability
and professional progress are to be maintained there must be
some security of tenure and some protection against trivial and
political reasons for removal. In statewide services this problem
can be solved because it is possible to transfer officers who do
not succeed in one court to some other jurisdiction where they
can make a better adjustment. In general more harm has prob-
ably resulted from the retention of incompetent officers for long
periods of time than by discharge for improper reasons.'
Salaries In a few state laws the salaries of juvenile pro-
bation officers are prescribed; in others a maximum or minimum
is mentioned. Salaries for adult probation officers are specified
for a few communities but usually not on a statewide basis. In
twelve states the power to fix salaries is placed in the hands
of some state board or agency, while in a few states and dis-
tricts the law specifies that the courts alone are given the power
to fix salaries.
Internal Organization The internal organization of proba-
tion departments varies according to the external setup and the
type of work. If the probation service covers a large district
and includes a number of different types of cases the setup is
complex. In some counties or districts there is a single proba-
tion system for all adult and juvenile cases, with a chief pro-
bation officer who acts as executive and is responsible directly
to the courts or to the state administrative agency. The work
under him is usually divided according to the type of cases dealt
with. If the court has broad jurisdiction over family matters
there is sometimes an adult division covering nonsupport and
iGilbert Cosulich Adult Probation Laws ol the United States p. 53
 PROBATION

criminal cases and a juvenile division. Again, the service cuts

across these lines, and the women officers in the juvenile division
deal with young boys, with all girls in the juvenile court and
with women offenders in the adult court. Sometimes the dis-
tinction lies purely between juvenile and adult cases, one group
of officers, men and women, dealing entirely with juvenile cases
and the other group dealing with adult offenders and with non-
support cases. Usually there is a director at the head of each
division who serves as a subexecutive and also as a case super-
visor. In other instances there are directors to deal with execu-
tive and mechanical matters in each division and a case super-
visor to deal with case work problems in all divisions.
In some courts a division is made between the officers who
investigate cases and those who supervise them. One division
is entirely concerned with intake, investigation, court hearing
and recommendation. After the case is definitely placed on
probation it is transferred to the supervisory division and as-
signed to another officer. This has been especially favored in
large courts dealing with adults. There are advantages in the
system from an efficiency standpoint. The investigators for
example, learn all the techniques and resources of their field and
can give their entire time to the one process unhampered by
crises in their supervisory case load. On the other hand there
is objection to the plan from the point of view of good case
work. It is felt by many that the entire case work process is a
unit, treatment beginning with the first interview and diagnosis
continuing throughout the treatment period. When the proba-
tioner is shifted from one officer to anoth'r there is a harmful
break in the relationship. Furthermore, the supervising officer
does not have personal knowledge of the case and must pick up
the facts from a written record. From this angle it appears
that a system which combines investigation and supervision un-
der one worker is preferable.
In large courts or districts a geographical division is made,
with a director in charge of each area and a corps of workers
under him. Cases are assigned on the basis of residence. If
 PROBATION AND PAROLE

there are a sufficient number of workers in a district subdivision

can be made on the basis of age, sex and type of case, other-
wise several types of cases must be combined under one worker.
Powers and Duties In most statutes the powers and duties
of probation officers are stated in detail, although in a few they
are dealt with briefly in general terms. Usually a preliminary
investigation and report to the court are authorized, sometimes
in written form. In a few states this report must be made be-
fore probation is granted. Some statutes indicate but do not
demand supplementary information on physical and mental con-
dition. In only four states is the probation officer authorized
by law to make recommendation to the court on the granting
of probation.
In most states the probation officer is specifically told to
exercise supervision, and in seventeen there are general recom-
mendations about improvement or reformation of the offender.
Collection and disbursement of money is specified in some juris-
dictions, but as a rule it is merely implied in the other powers.
The keeping of records is specified in a number of statutes. In
some states parole supervision is part of the probation officer's
function or may be made so upon request of a court or other
public agency. In eighteen states probation officers have police
powers and in some they can arrest probationers without a
warrant.
The duties of juvenile probation officers are usually described
in the juvenile court law. The principal ones include investiga-
tion of the case, presence in court, custody of the child before
and after hearing, supervision on probation and other duties
as directed. There are also specifications concerning records,
accounting of money and reporting of violations. In some states
probation officers are directed to serve other courts or agencies
in investigation, caring for children, adoption and parole from
state institutions. There are only eight states in which pre-
sentence investigation is mandatory before probation can be
ordered.
In most states where social investigation of cases is men-
 PROBATION

tioned in the statute some standard has been set up as to what

should be included. Fifteen states ask for data on previous
criminal record. Physical and mental examinations are men-
tioned as important but not mandatory, probably because of the
lack of facilities in some places. The California law is most
complete on this point and demands a written report and recom-
mendation and the proposed conditions of probation. There is
no precise time limit, and the method of getting data is seldom
mentioned. The advantage of giving exact directions in a statute
is open to argument. What was adequate a few years ago is
insufficient today. In good courts good investigations will be
made as an administrative matter whether mentioned in the
statute or not, and in poor courts only the letter of the law will
be fulfilled. Probably there is some value in giving a general
description of the function in the law but it will not assure
good work.
The second important part of the probation officer's duty
relates to the supervision of cases. In some courts this is a mere
perfunctory reporting at stated intervals at an office, possibly
supplemented by regular written reports. This is still the most
common method of supervision and is sometimes the only pos-
sible way when case loads are large, but it is mechanical and
means very little as case work.
In courts of high standard office reporting, except in special
circumstances, has been discontinued, especially in children's
cases. Supervision in the case work sense means far more posi-
tive participation on the part of the probation officer. It in-
volves the establishment of a definite relationship with the of-
fender and his family so that they will accept help in solving
their problems; it means the straightening out of situations
which hinder readjustment, such as family antagonisms, bad
home conditions, economic insecurity, unfavorable neighbor-
hood and social surroundings; and it means the use of com-
mu-nity resources which strengthen the offender, such as closer
church relations and educational and recreational outlets.
Record keeping is another function of the probation officer
.100 PROBATION AND PAROLR

which is sometimes specifically mentioned in the statute. The

collection and distribution of money, usually in connection with
nonsupport and desertion cases is also included. The amount
to be paid is set by the court, collected through the probation
office and distributed to the beneficiary. Unfortunately in some
courts this is the only type of service rendered in domestic
relations cases.
Probation officers sometimes act as referees, to hear cases
and make informal adjustments. Where judicial action in the
form of commitment is necessary their findings are passed upon
by the judge.

The Administration of Probation

Eligibility In most states the law sets definite limits on the
use of probation. These restrictions on eligibility vary from
state to state and there is no uniformity in their philosophy.
In some statutes specific types of cases are definitely eliminated,
while in others the restrictions relate to the age of the offender,
or to the number of previous convictions. Usually the statutes
specify certain general matters which must be considered before
probation can be granted, such as the good of the community,
extenuating circumstances and prospect of reform. Most states
also require that guilt be ascertained either by verdict or plea
of guilty before the offender is eligible for probation. In a
few states the offender can be placed on probation before con-
viction. This is true in the superior courts of Massachusetts, in
the criminal court in Baltimore, and in some circumstances in
Rhode Island, Kentucky and Maine. In a few states defendants
have a right to probation because the jury has recommended it,
but in general the defendant has no legal right to demand pro-
bation, it being within the discretion of the judge.
In 13 states probation may be granted regardless of the type
of crime, although in 3 of them the authorization applies only
in cases of minors; in 9 states it cannot be given to offenders
punishable by life imprisonment or death; in 19 states certain
specified offenses of a serious nature prevent the use of proba-
 PROBATION

tion; and in 2 states offenders with terms of over 10 years are

barred. In 20 states only first offenders are eligible, but in the
majority this exclusion is made on the basis of previous felony
conviction or previous imprisonment for crime. Only a few
states impose restrictions relating to those previously convicted
of a misdemeanor. Iowa excludes those infected with venereal
disease.
The difficulty with restrictions is that they apply to the
crime committed rather than to the type of offender involved.
It is assumed that those who have committed certain types of
crimes are more dangerous to the community than others but
there seems to be no factual evidence to support this. A study
of 20,000 cases from twenty-five probation departments and
the District of Columbia does not show any significant relation
between the offense and behavior on probation."
The technical classification of the offense does not indicate
the defendant's personality nor the possibility of adjusting him
on probation. Other aspects should be considered in making
this decision, such as age, family situation and mental and phys-
ical makeup. The same principle applies to recidivism. While
recidivists are less likely to succeed on probation than first of-
fenders there should not be an arbitrary exclusion of them all.
In general the present tendency is to increase the area in which
probation may be used and to give the court broad discretionary
powers.
The Conditions of Probation It has been pointed out that
probation is a sort of contract in which it is the duty of the
probationer to fulfil certain conditions in exchange for his free-
dom. These conditions are generally described as "good be-
havior" although in some jurisdictions they are outlined in detail
in the statutes. Courts sometimes prescribe the conditions in
the form of printed rules and regulations,,which are given to
the offender when the order of probation is made. In other
instances the conditions are set forth in general terms by the
court but specifically adjusted to the individual case by the pro-
lAttorney General's Survey of Release Procedures Volume II, p. 123
 PROBATION AND PAROLE

bation officer. Most courts are getting away from stereotyped

rules and are trying to consider the general situation of the
offender on a case work basis. To designate conditions in nar-
row language is opposed to the philosophy of individualized
treatment. Where statutes name a number of conditions the
tendency is to apply them all, unless they are obviously unsuit-
able, rather than to pick out specific ones. Where the conditions
of probation are outlined in the statute, appellate courts have
held that the enumeration is exclusive and therefore other con-
ditions are prohibited.1
Most statutes permit the court to ask for restitution as a
condition of probation, when loss or damage has resulted from
the offender's unlawful act. The California law provides that
the probationer may be required to go to work to earn this
money andthe Los Angeles probation department has developed
specific procedure under a separate division. Support of de-
pendents is a common condition and occurs most frequently when
probation is granted in nonsupport cases. Two states, Connecti-
cut and Michigan provide for a fee for probation service but
other states assess costs or impose regular fines. In Connecticut
the fee must not exceed $48 and in Michigan not more than
a dollar a month. It is not mandatory in either state.
Other conditions concern such matters as the use of intoxi-
cants and the avoidance of disreputable places or persons, late
hours, indebtedness and unnecessary expenditure. Employment
and regular work are mentioned. Reporting on whereabouts is
a common condition and in some states the probationer must
remain within the area of court jurisdiction.
Regular reporting is mentioned in most statutes. Sometimes
only a written report is required, in other instances the proba-
tioner must report in person. Reporting is direct to the court
in some states, but more often to the probation officer, and the
time and frequency of reporting is usually left to his discretion.
It is generally felt that to make an offender serve a term of
imprisonment as a condition of probation, no matter how short,
IPeople v. Funk 193 N. Y. Supp. 302, 177 Misc. Rep. 778 (1921)
 PROBATION

is not desirable, but it is authorized in the California adult pro-

bation law and is practiced in the United States District Courts.
Thus in general the power to fix conditions belongs to the
court but in states where probationers are committed to a state
agency, this agency has the power to impose them, with entire
control of the probationer after disposition by the courts.
The Probation Term The time limits of probation are some-
times set by the statute and sometimes left to the discretion of
the court. In ten states it is left to court discretion, while in
twelve states the statutes fix some definite maximum, such as one
year or five years. In other states the period varies with the
seriousness of the offense, the age of the offender and the type
of court. Several states set as a limit the maximum term for
which the defendant could have been imprisoned.
The best practice indicates that it is unwise to restrict by
statute the maximum duration to any period less than five years
and many feel it is best to leave the matter entirely to court dis-
cretion. A number of courts with confidence in their probation
departments leave the decision to them. Implicit in the idea of
probation is the prospect that the offender will be released when
he has conducted himself properly for a given period, and in
all except five states the court is empowered to grant final dis-
charge at any time.
Revocation of Probation In most states the courts alone
have the power to revoke probation. The principal point of
difference is in the matter of hearing for which the laws of nine-
teen states provide. Every statute, either in-express terms or
by implication, provides that probation can be revoked when the
conditions are violated. Some states permit this if there was
fraud or misrepresentation or if the general conduct is incon-
sistent with good citizenship. Conviction or commission of a
new crime is not the only basis for revocation but in practice,
if there is no close supervision or knowledge of the case, this
is sometimes the only. reason for which it is used. Although
formal revocation is a matter for the court to decide, the de-
cision as to referral to the court is often left to the probation
 PROBATION AND PAROLE

officers, who show a wide variation in policy. Some report only

serious offenses while others recommend revocation because of
the general behavior situation. For this reason statistics on
revocation do not give a true picture of probation conduct, for
the best courts may have more revocations than the poor ones.
In most states the probationer must be given notice and an
opportunity for hearing before revocation. The statutes are not
specific about the hearing and usually speak in general terms
such as "brought before the court," "due examination," "full
investigation." In five states at least probation may be revoked
without notice or hearing.' In practice there is wide variation,
some hearings being informal, summary procedure and others
virtually a trial. While fair hearings should be required the pro-
cedure should not be so rigid as a trial. No statute specifies the
amount of proof necessary, this being left to the discretion of
the court.
Most statutes provide that the court may order commitment
after revocation exactly as if there had been no probation. Ex-
cept in Georgia the time spent on probation is not credited on
the sentence imposed. This provision has either been placed in
the statute or has been upheld by court decision. As a practical
matter however the court sometimes gives credit for the proba-
tion period by imposing a lighter sentence than it might other-
wise.
Civil Status
Questions concerning legal and civil status during probation
have received little attention in judicial opinions or legal re-
search. The statutes do not clearly define the effect of convic-
tion on political and civil status and differences in wording and
interpretation have led to varying results. Usually there must
be a real passing of judgment or sentence before there are dis-
qualifications. A mere finding of guilt does not seem to be suffi
IThis situation will probably he affected by a recent decision in the United States Circuit
Court of Appeals-Fleenor v. Hammond 116 F (2nd) 982 (C.C.A. 6th 1941)-which held in
a case of conditional pardon that revocation without a heaing violates due process of law.
See Henry Weihofen "Revoking Probation, Parole or Pardon Without a Hearing" Journal
of Criminal Law and Criminology January-February 1942.
 PROBATION

cient. A New York case' decided that a finding of guilt followed

by suspension of sentence did not deprive the defendant of the
right to vote.
Apparently the statutes relating to civil rights for those
serving time in a state prison do not relate to probationers who
have been released through suspension of imposition of sentence,
but there is a conflict of opinion as to whether these statutes
operate when the sentence has been imposed and then suspended.
Some states have decided one way and some another.
Civil rights are lost in most states on conviction of certain
types of crimes which for centuries have been known as "in-
famous." There is a question however whether infamy pertains
to the crime or to the punishment and what degree of punish-
ment makes a crime infamous. Despite some contrary opinion
it is generally held that infamy attaches to the punishment. Orig-
inally corporal punishment was considered infamous and later
imprisonment at hard labor was included. Since hard labor was
usually found in the state prison the term was applied to those
sentenced to state prisons.
Among the rights forfeited are: the right to vote, in all but
five states; the right to hold office, in most states; the right to
practice certain professions or gain certain kinds of licenses;
and in most states conviction of a crime is a ground for divorce.
Other restrictions relate to such matters as exclusion from the
Civilian Conservation Corps, military service and civil service
examinations. Considerable progress has been made lately in
liberalizing these unfortunate restrictions, especially under war
conditions. They are not in harmony with the current philosophy
of probation which aims to integrate the offender into normal
community life as quickly as possible.

Interstate Compacts
The problem of state boundaries is important in both pro-
bation and parole. There are two major aspects, the escape of
probationers across state lines and the supervision of those who
IPeople v. Fabian, 192 N. Y. 443
 PROBATION AND PAROLE

desire to move to another state because of family connections

or better employment opportunities. Various informal arrange-
ments were worked out over a period of years but they did not
have the necessary statutory basis for a uniform and adequatc
plan. This was made possible in 1934 when Congress authorized
the states to enter into agreements or compacts for mutual assist-
ance in matters relating to the prevention and control of crime.,
In 1935 an Interstate Commission on Crime was organized and
drafted various interstate compacts. Probation and parole were
combined in one model compact, which proyided for the arrest
and return of those who escaped and for reciprocal supervision.
By October 1941 this compact had been signed by thirty-five
states.
A sending state may permit a probationer to move to a state
where he has residence, family or employment, but if these con-
ditions do not exist the probationer must have the permission
of the receiving state. The receiving state investigates living.
conditions and offers supervision of the same standard as that
provided in the sending state. In practice there is naturally a
wide variation in the effectiveness of this supervision but the
movement itself has given impetus to the establishment of better
and more uniform standards. In this the regional conferences
of probation and parole officers held regularly in various parts
of the country are playing an important part.
148 Stat. 909 (1934)

General References on Probation

Books
AIttorney General's Survey of Release Procedures Vol. II Probation
Washington, D. C., Government Printing Office, 1939
Beard, Belle B. Juvenile Probation New York, American Book, 1934
Cooley, Edwin J. Probation and Delinquency New York, Nelson, 1927
Cosulich, Gilbert Adult ProbationLaws of the United States New York,
National Probation Association, 1940
Cosulich, Gilbert Juvenile Court Laws of the United States New York,
National Probation Association, 1939
 PROBATION 107

Flexner, Bernard and others The Child, the Family and the Court
Washington, D. C., United States Children's Bureau, 1933
Glueck, Sheldon, editor Probation and Criminal Justice New York,
Macmillan, 1933
Halpern, Irving W. A Decade of Probation New York, Court of Gen-
eral Sessions, 1938
John Augustus, First Probation Officer (reprint of Report of John
Augustus Boston, 1852) New York, National Probation Associa-
tion, 1939
Johnson, Fred R. Probationfor Juveniles and Adults New York, Cen-
tury, 1928
National Commission on Law Observance and Enforcement Report on
Penal Institutions Probation and Parole Washington, D. C., Gov-
ernment Printing Office, 1931
Sutherland, Edwin H. Principles of Criminology Philadelphia, Lippin-
cott, 1939, Chapter XX
Timasheff, N. S. One Hundred Years of Probation New York, Ford-
ham University Press, 1941, Part I
Trought, Thomas W. Probationin Europe Oxford, England,-Blackwell,
1927
Williamson, Margaretta A. The Social Worker in the Prevention and
Treatment of Delinquency New York, Columbia University Press,
1935
Young, Pauline V. Social Treatment in Probation and Delinquency
New York, McGraw-Hill, 1937

Manuals

Handbook of Probation Michigan Bureau of Probation, Lansing, Mich-

igan, 1938
Manual of Probation D. R. S. Morrison, editor, County of Los Angeles,
Los Angeles, California, 1941
A Parole and Probation Officer's Manual Lloyd C. Kersey, Minnesota
State Board of Parole, St. Paul, Minnesota, 1939
Principlesand Methods in Dealing with Offenders Helen D. Pigeon and
others, Pennsylvania Municipal Publications Service, State College
Pennsylvania, 1941
 PROBATION AND PAROLE

Probation Manual Massachusetts Board of Probation, Boston, Massa-

chusetts, 1936

Articles and Special Reports

Bell, Marjorie "They Straighten Bent Twigs" Independent Woman

April 1940
Chute, Charles L. "Probation Yesterday and Today" Proceedings, Con-
gress, American Prison Association New York, 1941
Grinnell, Frank W. "The Common Law History of Probation" Journal
of Criminal Law and Criminology May-June 1941
Grinnell, Frank W. "Probation as an Orthodox Common Law Practice
in Massachusetts Prior to the Statutory System" Massachusetts
Law Quarterly August 1917
Monachesi, Elio D. Prediction Factors in Probation Hanover, N. H.,
Sociological Press, 1932
Parsons, Herbert C. The Place of Probation in Public Corrections Bos-
ton, Massachusetts Civic League, 1927
Preventing Crime Through State Probation Concord, N. H., New
Hampshire Department of Probation, 1939
A State Administered Adult Probation and Parole System draft of a
model act New York, National Probation Association, 1940
Weihofen, Henry "Revoking Probation, Parole or Pardon Without a
Hearing" Journal of Criminal Law and Criminology January-
February 1942

Periodicals and Proceedings

Federal Probation Washington, D. C., Administrative Office of the

United States Courts quarterly
Journal of Social Hygiene New York, American Social Hygiene Asso-
ciation, monthly
Probation New York, National Probation Association, bimonthly
Proceedings, Congress, American Prison Association New York
Proceedings, National Conference of Social Work New York, Columbia
University Press
Yearbook, National Probation Association New York