CHAPTER XII PROBATION Thus far we have been considering the progress of legislation in regard to the pardon and the parole. We should remember, however, that at the same time provisions were made in relation to probation. Although probation had undoubtedly been granted by the trial judges from an early time as a supposed part of their inherent powers, there was always in America a serious doubt whether the exercise of the power after the entry of judgment would not practically amount to a conditional pardon or a parole and thus be an encroachment upon the pardoning prerogative of the Governor. The problem, however, could be met by viewing probation as a part of the sentence or rather perhaps as a substituted sentence. Since, indeed, no acts are crimes except such as the Legislature decides to punish and since it is for the Legislature to decree what the punishment shall be, it is clearly within the power of that body in the case of every crime to impose a prison sentence, a fine, a sentence of imprisonment which shall not begin to run for a number of weeks, a penalty which shall involve the mere giving of a peace bond, a penalty which shall be nothing more than a reprimand, or a penalty of being held under supervision during good behavior with the liability of commitment to prison if the confidence is violated. All, indeed, that was necessary in Illinois to validate the practice of probation was to give legislative sanction thereto.1 This, however, was necessary. Legislation also was necessary in order to furnish proper machinery, to provide for probation officers, and to supply the necessary funds. Accordingly, and by an Act approved April 21, 1899, the courts were given large powers over dependent and neglected children, and by an Act approved June 10, 1911, the privilege of probation was extended to a certain class of adults. This Act, however, only applied to the crimes of larceny, embezzlement, malicious mischief, burglary of a business house or dwelling house where the amount taken or involved did not exceed the amount of two hundred dollars, and to burglary generally of a place other than a business house or dwelling. As in the case of paroles, we find the scope of the statute gradually increasing, and by an Act approved June 28, 1915, the Act of 1911 was amended so as to be applicable to all offenses except murder, manslaughter, rape, kidnapping, willful and corrupt perjury or sub1 See Bruce, "The Power to Suspend a Criminal Sentence," 6 Minnesota Law Rev. 363. ornation of perjury, arson, larceny, and embezzlement where the amount taken or converted exceeded two hundred dollars in value, incest, burglary of an inhabited dwelling house, and conspiracy against the election laws. The Act, however, was not made applicable to persons who had been previously convicted of felonies, petit larcenies, and embezzlement excepted. Under this legislation the probation officers were to be appointed by the circuit judges, and not more than one for every fifty thousan inhabitants was provided for. Up to this time, also, there was no provision for the salaries of these officers. By an Act of April 18, 1919, the system was rendered more effective by a provision that the compensation and expenses of the probation officers should be paid out of the various county treasuries. Generally speaking, there can be no objections to these Acts2 with the exception that there is not a sufficient provision for the appointment of an adequate number of probation officers. The enactments can, however, be manipulated, and probation can be and in many instances is allowed in cases which were not contemplated by the statute, by the mere expediency of accepting pleas to lesser offenses. It is also, perhaps, well to add that in the probation system the probation officers furnish one of our most important units, and that if probation officers are appointed and removed for political purposes merely, as we fear has recently been the case in the city of Chicago, the whole system must fall into decay. 'Probation as a function of the courts rather than of the executive has a forerunner in the so-called "benefit of clergy" which originated in the claims of ecclesiastics to be exempt from criminal process before the secular courts and which was subsequently extended by various English statutes to include also peers who were presumed to be able to read and to commoners who could establish themselves as "clerks" by proving that they could read. Under this system the Bishop's clerks performed the function of the modern probation officers as to the right of prisoners to claim the "benefit of clergy" and the system was often used for the advantage of the non-clerical as well as the clerical; the unlearned as well as the learned. The practice prevailed in Massachusetts from an early time, and was looked upon as a part of the judicial prerogative. (See Commonwealth v. Dowdican's Bail, 115 Mass. 133 and illuminating article by F. W. Grinnell of the Boston Bar in the Massachusetts Law Quarterly, Vol. 2, page 6, entitled "Probation as an Orthodox Common Law Practice in Massachusetts.") In 1870 it was expressly recognized by the Massachusetts legislature. Justice Burns in the Dover, New Hampshire, Press, abridgement by Eliphalet Ladd, prints a reference to a passage in Dalton's Country Justice, edition of 1746, page 288, where Dalton says: "I lately granted the good behavior against one for that he had bought Ratsbane and mingled the same with corn and then wilfully and maliciously did cast the same among his neighbors' fowls, whereby most of them died, And since I have known it allowed as a good cause by the Judge of Assize." CHAPTER XIII THE CREATION OF THE, DEPARTMENT OF PUBLIC WEL- THE LEGISLATION PRIOR TO 1917 In the early history of the State, although there was no recognition of the parole in the statutes, the power was, no doubt, exercised in certain cases by the Governor under his constitutional power to grant pardons, reprieves, and commutations and which, no doubt, included and still includes the power to parole which is, after all, merely a conditional pardon or commutation. Later in 1879 and under the constitutional provision that the Legislature might make rules as to the method of applying for pardons, a statute was passed which provided that all applications should be in writing and accompanied by statements from the judge and the prosecuting attorney. Later still, in 1895, while the pardoning power was still vested exclusively in the Governor and before any subsidiary board of pardons and paroles had been created, a system of paroles was provided for, which was to be exercised by a Board of Prison Commissioners to be appointed by the Governor by and with the consent of the Senate. Then on June 5, 1897, a Board of Pardons was provided for, to consist of three persons, who also had to be appointed by the Governor, by and with the consent of the Senate, and a few days after, on June 10, 1897, another Act was passed which amended the Act of June 25, 1895, and took the power of parole from the Prison Board of Commissioners and vested it in the new State Board of Pardons just created. THE CREATION OF THE DEPARTMENT OF PUBLIC WELFARE IN 1917 This was the situation until July 1, 1917, when the Civil Administrative Code was passed, the Department of Public Welfare created, and the Board of Pardons and Paroles made a subdivision thereof. Under this Act the former Board of Pardons was abolished and a new Board of Pardons and Paroles was created as a subdivision of the Department of Public Welfare, the nominal head of which was the Director of Public Welfare and whose active and operating officer was the Superintendent of Pardons and Paroles. But who should compose the other members of the Board, if any, was not clearly stated. Presumably the members were to be chosen from the personnel of the Department of Public Welfare, though we believe this practice was not always followed. The Department of Public Welfare was composed of an Assistant Director of Public Welfare, an Alienist, a Criminologist, a Fiscal Supervisor, a Superintendent of Charities, and a Superintendent of Prisons. To this Department, or to its subdivision, was entrusted the power of passing upon and recommending both pardons and paroles. THE ACT OF 1927 AND THE NEW BOARD OF PAROLES In 1927, however, a radical departure was made, and by a bill approved July 6, 1927 (Laws of Illinois, 1927, page 844), the Civil Administrative Code was amended so as to add to the clause relating to the Department of Public Welfare, the words: "The Parole Board shall consist of the Supervisor of Paroles, who shall be Chairman, and nine other members." and by adding to the Act a new section which provided that "Sec. 13, pp. 54a. The Parole Board created by this Act shall exercise and discharge all the rights, powers and duties heretofore vested in the Department of Public Welfare in granting paroles to persons sentenced or committed for crime or offenses, but the supervision and aftercare of persons so paroled shall remain in the Department of Public Welfare. The action of a majority of all the members of the Board shall be the action of the Board and no parole shall be granted except upon the concurrence to be recited in the records of the Board. In consideration of any parole, said Board shall consider and give weight to the record of the prisoner's conduct kept by the superintendent or warden." The changes made by the Act of 1927 were sweeping. Though they left the original Board of Pardons unchanged, they created an entirely separate and distinct Board of Paroles which was to be composed of the Supervisor of Paroles and nine other members. As far as pardons were concerned the Board, as before, was to be composed of the Director of the Department of Public Welfare, the Superintendent of Pardons and Paroles and some or all of the other members of the Department of Public Welfare, viz., the Assistant Director of the Department of Public Welfare, the Alienist, the Criminologist, the Fiscal Supervisor, the Superintendent of Charities, and the Superintendent of Prisons. As far as paroles were concerned, a new Board was created, conposed of the Superintendent of Pardons and Paroles and nine other members who could be appointed by the Governor and did not necessarily need to occupy any other office in the Department of Public Welfare. For this Board, also, a separate appropriation was made. It is to be remembered that both of these Boards sit in an advisory capacity merely, and though their recommendations have uniformly been recognized by the Governor, the Governor is not necessarily bound thereby, since the pardoning power is vested in him by the Constitution and the parole is merely a conditional pardon. CHAPTER XIV THE COST OF PAROLE As we have before seen, the Legislature of 1927 made of the Board of Paroles a separate and independent body, but, though it also made its chairman the Superintendent of Paroles, left in the Department of Public Welfare as a whole the care and supervision of the parolees after they had been released from the penitentiary. It, in fact, made of the Board of Paroles a semi-judicial body and entrusted to it the power of passing upon and granting parole but left to the Department the care and custody and supervision of the convict after he had been released. For the furtherance and maintenance of the Board of Paroles, it made an appropriation of $357,800 for the biennial period and to the parent Department of Public Welfare, and for the supervision of the parolee, it granted the sum of $1,108,400 for the same period of time. We are of the opinion that these appropriations were wisely made and were in the interest of economy since either an adequate system of parole had to be provided for and financed or new penitentiaries had to be constructed. We glibly talk of long sentences of imprisonment but we seldom think of the staggering cost to the community of these sentences. Mr. Clabaugh told the truth when he stated to the members of the Legislature in 1927 that they were confronted with the choice of either appropriating for and making efficient the system of the indeterminate sentence and of the parole or of expending nearly forty million of dollars during the next ten years in the erection and maintenance of penitentiaries and reformatories. On July 1, 1926, there were 5,796 persons confined at Joliet, Menard, and Pontiac. On July 1, 1927, this number had increased to 6,342. Everyone knows that the number of criminals who have been actually caught, tried, and convicted forms but a trifling percentage of the number who commit serious crimes. Not only in Illinois but in every state in the Union we are rapidly coming to realize the inefficiency of our police methods and of our system of criminal trial and prosecution and there can be no doubt that in the coming years these methods will be greatly improved. If they are improved, thousands of additional persons will be arrested and convicted, and the population of our penitentiaries and reformatories will be correspondingly increased. Even as things now are, an increase of but one year in the actual period of incarceration would involve the erection of at least two penitentiaries the size of Joliet. 46 |