Academic journal article Federal Probation

The Federal Probation System: The Struggle to Achieve It and Its First 25 Years

Academic journal article Federal Probation

The Federal Probation System: The Struggle to Achieve It and Its First 25 Years

Article excerpt

The coming year, 2015, is the occasion for three important anniversaries for the federal probation and pretrial services system. Ninety years ago, in March 1925, Calvin Coolidge signed into law the act establishing a federal probation system. Seventy-five years ago, in 1940, the federal probation system moved from the Department of Justice in the Executive Branch to the Administrative Office of the U.S. Courts. Finally, forty years ago federal pretrial services came into being as a demonstration project in 10 courts; several years later it spread throughout the federal judiciary with the 1982 passage of the Pretrial Services Act.

The upcoming year's anniversaries will be celebrated in the federal probation and pretrial services system in a number of ways, including a special September 2015 issue of Federal Probation dedicated to tracking what we have accomplished and proposing where the next 10 years should take us.

Meanwhile, we lay the groundwork for this year-long commemoration by reprinting below former Assistant Chief of Probation Victor H. Evjen's account of the genesis and first 25 years of federal probation. This article is reprinted from the June 1975 Special Golden Anniversary Issue of Federal Probation.

THE FIRST PROBATION law in the United States was enacted by the Massachusetts legislature April 26, 1878. But it was not until 1925, when 30 states and at least 12 countries already had probation laws for adults, that a Federal probation law was enacted. Through a suspended sentence United States district courts had used a form of probation for nearly a century. But the use of the suspended sentence was met with mounting disapproval by the Department of Justice which considered suspension of sentence an infringement on executive pardoning power and therefore unconstitutional. The reaction of many judges ranged from "strong disapproval to open defiance." It was apparent the controversy had to be settled by the Supreme Court.

In 1915 Attorney General T. W. Gregory selected a case from the Northern District of Ohio where Judge John M. Killits suspended "during the good behavior of the defendant" the execution of a sentence of 5 years and ordered the court term to remain open for that period. The defendant, a first offender and a young man of reputable background, had pleaded guilty to embezzling $4,700 by falsifying entries in the books of a Toledo bank. He had made full restitution and the banks officers did not wish to prosecute. The Government moved that Judge Killits' order be vacated as being "beyond the powers of the court." The motion was denied by Judge Killits. A petition for writ of mandamus was prepared and filed with the Supreme Court on June 1, 1915. Judge Killits, as respondent, filed his answer October 14, 1915. He pointed out that the power to suspend sentence had been exercised continuously by Federal judges, that the Department of Justice had acquiesced in it for many years, and that it was the only amelioration possible as there was no Federal probation system. In one circuit, incidentally, it was admitted the practice of suspending sentences had in substance existed for "probably sixty years."

On December 4, 1916, the Supreme Court handed down its decision (Ex parte United States, 242 U.S. 27). The unanimous opinion, delivered by Chief Justice Edward D. White, held that Federal courts had no inherent power to suspend sentence indefinitely and that there was no reason nor right "to continue a practice which is inconsistent with the Constitution since its exercise in the very nature of things amounts to a refusal by the judicial power to perform a duty resting upon it and, as a consequence thereof, to an interference with both the legislative and executive authority as fixed by the Constitution." Probation legislation was suggested as a remedy. Until enactment of a probation law, district courts, as a result of the Killits ruling, would be deprived of the power to suspend sentence or to use any form of probation. …

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