exercise of the right of compulsory examination, which should be surrounded by the safeguards which experience and history have shown not only to be necessary, but to be entirely adequate. This suggestion is that compulsory examination of the accused should be permitted after indictment, but only at a formal hearing before a magistrate, and with the right to the accused to be represented by counsel and to "cross-examine." The prerequisite of an indictment would compel the public authorities in the first instance to present prima facie evidence of guilt, entirely apart from the proposed examination. The magistrate would secure order, prevent abuse, and would restrict the examination to matters relevant to the indictment. The right of representation by counsel and cross-examination would give the accused immediate opportunity of explaining any evidence apparently indicative of guilt.

Since the publication of this suggestion, the writer has received numerous expressions of approval of such a course from judges, public prosecutors and members of the bar, and he hopes that this suggestion will receive serious consideration and discussion by those having the administration of our criminal law and the improvement of our procedure at heart, and that as a result there will be brought about such statutory and constitutional changes as the situation may call for.

ADULT PROBATION

BY WILFRED BOLSTER,

Chief Justice, Municipal Court of the City of Boston.

The lay mind is so far unfamiliar with the essence of the probation system, and indeed those dealing with the subject at close range often show such a disagreement, if not ignorance, as to its basic principles, that it may be well, in attempting to gain a helpful conception of those principles, to restate a few definitions of probation.

Probation is a judicial system by which an offender against penal law, instead of being punished by a sentence, is given an opportunity to reform himself under supervision and subject to conditions imposed by the court, with the end in view that if he shows evidence of being reformed, no penalty for his offense will be imposed.

Or, probation is the suspension of final judgment in a given case, permitting the offender to have a chance to overcome his weakness or mistake by coöperating with the state through its probation officers. Its method is that of overcoming evil with good.

Or, probation is the conditional forgiveness by society, acting through its judicial officers, of an offender against its penal laws, based upon a reasonable expectation that, if forgiven, he will not again offend; and intended to take effect upon evidence that this expectation has been fulfilled.

The last definition probably is closest to the technical and historical aspects of the system. Legal practice has not yet arrived at the stage of compelling an offender to accept probation. And the almost universal practice at the end of a satisfactory probation period is to dismiss the case, or make a practically equivalent disposition by filing. Neither of these aspects is consistent with a fourth definition sometimes attempted-"a reformatory without walls."

The probation system originated in the practice of the judges of many Massachusetts courts, notably those of the inferior courts in and about Boston, of continuing cases from time to time, after a determination of guilt, and upon satisfactory proof of good behavior

of dismissing the case. Here is the germ of the theory that in certain cases society, by being kind to the defendant, is kind to itself. In a state where a maximum and minimum penalty, itself a rudimentary form of individualized punishment, had become the rule rather than the exception, this judicial practice marked the next step in the evolutionary process. It seems probable that the chief conscious motive was a desire to relax the rigors of the old system of punishment for crime. Reformation, as an end in itself, was in the background. The theory evidently was that society might well forego the entire penalty at times. And apparently society readily adopted the practice, whatever its realization of the theory. In 1878, the mayor of Boston was authorized to appoint a probation officer for Suffolk County, to be under the charge of the chief of police, and whose duty it should be to recommend to the courts of Suffolk County "the placing on probation of such persons as may reasonably be expected to be reformed without punishment." In 1880, this method was made state-wide. In 1891, the law took substantially its present shape, by which probation officers are judicially appointed throughout the state, and become to all intents and purposes agents of the courts. It is significant that all these laws provided only that courts might appoint probation officers, and might place offenders "upon probation." What that term meant in criminal law, what consequences it entailed, were still left for judicial evolution. And such has been the general course of later legislation in other states. In truth, probation is but one aspect of the evolution and growth of the system of individualized punishment.

The history of probation shows that there can be no essential and basic difference between adult and juvenile probation, for probation, in practice, though not legislatively, antedated juvenile courts and juvenile delinquency statutes. The topical division is in some ways unfortunate, as creating the impression of a difference in kind. The difference is only in degrees and methods resulting from the greater plasticity of the material for probation found in juvenile courts, and the more intensive treatment permitted by society because of the greater prospect of ultimate reclamation for society's welfare.

The space limits of this article obviously preclude any detailed description of the practice of probation, but attention cannot be centered too often upon its three cardinal principles, the selection

of only the fit for probation, the choice of properly qualified probation officers, and the need of judicious, unremitting supervision during the term of probation.

Probation is no panacea for crime. It has its definite niche in criminal practice, and any attempts to extend it beyond its proper sphere must result unfavorably. A proper selection of cases for probation should, in the writer's opinion, follow this rule: that the case should, after thorough investigation of the antecedents, environment, temperament and habits of the defendant, disclose a tendency to anti-social ways susceptible of reformation, more reformable outside than inside prison walls, conformably with public opinion, and consistently with public safety. This excludes in most cases the casual offender. A man of previous good conduct, who, under great provocation, assaults another, a woman of previous good repute, who under a sudden temptation, steals in a department store (an offense in which recidivism is exceedingly small), these are not usually cases requiring probationary treatment. What the humiliation of arrest and consequent appearance in court cannot accomplish in such cases, probation is not likely to accomplish. The prompt termination of the case by a moderate penalty or none at all is enough in such cases, because the probability of relapse is negligible. At the other extreme lie cases of chronic offenders, for whom probation may be a brief restraint, but whose real reform is largely improbable. It is all too common for courts to grant probation for purposes of temporary restraint alone, and the practice tends to the disrepute of the probation system. Underlying the probation system, just as in all penal measures, is the community instinct of self-preservation, and when the endeavor for persistent reform becomes disproportionately expensive when compared with results, the basis for further effort vanishes.

Legislation which limits probation to certain offenses is also illogical; and attempts to classify probation results by crimes rather than by persons are misleading. It is the habit or tendency which should be sought for, and the particular crime is of consequence only in so far as its nature denotes such tendency. The anti-social tendency plus a prospect of reform are the bases for probation.

As to fitness of officers, a somewhat extended experience in selection in a large city court has satisfied the writer that suitable candidates are an extremely rare commodity, and that a proper

selection of probation officers is as important as the selection of the judge himself. Their qualifications have been thus described. "The ideal probation officer should possess sound judgment, tact, patience and zeal in the work, the ability to read human nature, sufficient adaptability to appreciate and make due allowance for varying results of temperament, history and environment. He should be one who knows how to lead rather than drive, but who can drive effectually if need be. He should understand the influences that determine human character and conduct for good and ill, as well as methods of moulding character and how to apply them. And above all, he should have a love for the work." It is obvious that these qualifications cannot be had for the pittance which many states pay probation officers, yet an unsuitable officer is a poor investment for any community. Appointment is generally a function of the court. The importance of temperament and personality renders ordinary civil service methods of selection of doubtful value. In view of the growing importance of the probation system, it would seem advisable to inaugurate a method of preliminary training and examination, under the auspices of some specially qualified board, such as the probation commissions of Massachusetts and New York, and to give such board, if not the power of final selection, at least that of certification.

The urban court, if constructed according to the modern ideas of comprehensive unity, has the great advantage in the matter of selection of officers that the force may be made mutually supplementive. For instance, in the municipal court of Boston, the appointees, in addition to the majority of persons of common business experience, include appointments from the police force, several members of the bar, and an officer trained in parole work; and the public is now watching with interest the experiment of adding a physician who is also a specialist in psychology. The different lines of approach to the problems of probation which such a force brings with it result in discussions which cannot fail to prove mutually helpful, and to avoid stereotyped methods. A responsible department head, with large power, is an essential to best results.

In adequate supervision of persons on probation lies the very heart of the system, yet it is the part which is all too apt to be crowded

1 Report of Committee on Adult Probation in American Institute of Criminal Law and Criminology Journal, vol. 1, no. 3.