Defendant, while serving a prison sentence under one count of an
indictment and while at the same time on probation as to an
independent sentence imposed under another count, was guilty of
repeated abuses of a liberty to leave the jail, granted to him for
a particular purpose. Upon a summary hearing before the District
Judge, the facts of these abuses were proved by witnesses
Page 287 U. S. 217
and admitted by the defendant. The order of probation bore the
express condition that the probationer should refrain from
violations of law "and in all respects conduct himself as a
la-abiding citizen."
Held, construing the Federal
Probation Act:
1. Revocation of the probation need not be preceded by specific
charges and a formal hearing thereon. P.
287 U. S.
219.
2. A condition of the probation necessarily implied was that the
probationer should not be guilty of conduct inconsistent with
obedience to his prison sentence. P.
287 U. S.
222.
3. Whether there should be a revocation was a matter within the
discretion of the District Judge. P.
287 U. S.
223.
4. Revocation of the probation was not an abuse of discretion.
P.
287 U. S. 224.
59 F.2d 721 affirmed.
Certiorari to review the affirmance of an order revoking
probation.
MR. CHIEF JUSTICE HUGHES delivered the opinion of the Court.
The Court granted certiorari to review the decision of the
Circuit Court of Appeals affirming an order revoking probation. 59
F.2d 721. On a plea of guilty to three counts of an indictment,
petitioner was sentenced, on May 4, 1931, on the first count to
imprisonment for one year, on the second count to pay a fine of
$2,000, and on the third count to imprisonment for five years.
Execution of the last-mentioned sentence was suspended, and the
court granted probation upon the following terms:
"during such time as the defendant reports regularly
Page 287 U. S. 218
every three months in writing, beginning with this date, to the
federal probation officer of this Court; during which time he
entirely refrains from any violation of any law with the possible
exception of parking and traffic ordinances, and in all respects
conduct himself as a law-abiding citizen. In case of the violation
of the terms of probation, the defendant will be brought before the
court and sentenced. Probation is granted for a period of five
years."
On January 21, 1932, while petitioner was serving his sentence
on the first count, he was brought before the court, by its
direction, for the purpose of investigating a report that he had
violated the terms of probation. After a brief recess to permit the
attendance of counsel for petitioner, the court held a summary
hearing. A special agent of the Department of Justice testified
that the jail records, a copy of which was produced, showed that,
on fifteen days between May 10 and August 18, 1931, petitioner had
been absent from the jail for long periods ranging from nearly four
hours to over twelve hours; that an order had been made permitting
him to visit a dentist for necessary dental work, but that, on
August 18th the agent had found petitioner at his home. Petitioner
was examined on his own behalf, and from his cross-examination it
appeared that, on one occasion, when the record showed that he had
been away from the jail from 10 a.m. until 9:06 p.m., he had been
at his home in the evening "listening to the radio, something like
that." He was unable to say how often he had gone to his home when
he was supposed to be visiting the dentist; it was "quite a few
times. Q. Most of the time? A. Pretty near." He further
testified:
"Q. When you left the jail and didn't go to the dentist's
office, were you and Lessner [a deputy marshal] riding around or
were you at your house and would Lessner ride around? Is that
right?"
"A. Yes."
On redirect examination, petitioner added that, when he was out,
he
Page 287 U. S. 219
asked to be taken home to get a change of clothes; that usually
each time he went to the house, he went for a change of linen.
After petitioner had testified, the court, denying the request
of petitioner's counsel for an opportunity to present further
evidence, especially as to matters upon which the court did not
base its conclusion, revoked the probation order. The court said
that "there is enough obviously before this Court to show that the
spirit of the probation was not in any sense complied with." The
Circuit Court of Appeals, reviewing petitioner's testimony at
length, sustained the order as based not upon
"a technical escape, but upon the fact that the appellant had
not acted in good faith in carrying out the order of the trial
judge, but, on the contrary, had taken advantage of a general
permit to carry out his own purposes quite independently of the
basis and theory upon which the order was given."
59 F.2d 724.
First. Petitioner objects to the summary character of
the proceeding. He urges that he was entitled to previous notice of
specific charges of violation of the terms of probation and to a
hearing upon such charges according to the established rules of
judicial procedure. As opposed to the action sanctioned below, he
invokes principles announced in
Hollandsworth v. United
States, 34 F.2d 423, 428, and in certain decisions of state
courts dealing with procedure under state probation laws.
See
State v. Zolantakis, 70 Utah, 296, 259 P. 1044, note.
*
Page 287 U. S. 220
The Federal Probation Act (March 4, 1925, c. 521, 43 Stat. 1259,
U.S.C. Tit. 18, §§ 724-727), confers an authority commensurate with
its object. It was designed to provide a period of grace in order
to aid the rehabilitation of a penitent offender; to take advantage
of an opportunity for reformation which actual service of the
suspended sentence might make less probable.
United States v.
Murray, 275 U. S. 347,
275 U. S.
357-358. Probation is thus conferred as a privilege, and
cannot be demanded as a right. It is a matter of favor, not of
contract. There is no requirement that it must be granted on a
specified showing. The defendant stands convicted; he faces
punishment, and cannot insist on terms or strike a bargain. To
accomplish the purpose of the statute, an exceptional degree of
flexibility in administration is essential. It is necessary to
individualize each case, to give that careful, humane, and
comprehensive consideration to the particular situation of each
offender which would be possible only in the exercise of a broad
discretion. The provisions of the act are adapted to this end. It
authorizes courts of original jurisdiction, when satisfied "that
the ends of justice and the best interests of the public, as well
as the defendant, will be subserved," to suspend the imposition or
execution of sentence and "to place the defendant upon
probation
Page 287 U. S. 221
for such period and upon such terms and conditions as they may
deem best."
There is no suggestion in the statute that the scope of the
discretion conferred for the purpose of making the grant is
narrowed in providing for its modification or revocation. The
authority for the latter purpose immediately follows that given for
the former, and is in terms equally broad. "The court may revoke or
modify any condition of probation, or may change the period of
probation." There are no limiting requirements as to the
formulation of charges, notice of charges, or manner of hearing or
determination. No criteria for modification or revocation are
suggested which are in addition to, or different from, those which
pertain to the original grant. The question in both cases is
whether the court is satisfied that its action will subserve the
ends of justice and the best interests of both the public and the
defendant. The only limitation, and this applies to both the grant
and any modification of it, is that the total period of probation
shall not exceed five years. Act of March 4, 1925, § 1.
Such procedural provisions as the act contains harmonize with
the view that the continuance of the probation, as well as the
grant of it, rests in the court's discretion. The probation
officer, when directed by the court, must report to the court with
a statement of the conduct of the probationer.
"The court may thereupon discharge the probationer from further
supervision and may terminate the proceedings against him, or may
extend the probation, as shall seem advisable."
Id., § 2. The broad authority of the court remains
unimpaired. At any time within the probation period, the
probationer may be arrested, either with or without warrant, and
thereupon he "shall forthwith be taken before the court." Also,
after the probation period has expired, but within the maximum
period for which the defendant might originally have been
sentenced, the court may issue a warrant and cause the
Page 287 U. S. 222
defendant to be arrested and brought before it.
"Thereupon the court may revoke the probation or the suspension
of sentence, and may impose any sentence which might originally
have been imposed."
Id.
The duty placed upon the probation officer to furnish to each
probationer under his supervision "a written statement of the
conditions of probation," and to "instruct him regarding the same"
(
id., § 4) cannot be deemed to restrict the court's
discretion in modifying the terms of probation or in revoking it.
The evident purpose is to give appropriate admonition to the
probationer, not to change his position from the possession of a
privilege to the enjoyment of a right. He is still a person
convicted of an offense, and the suspension of his sentence remains
within the control of the court. The continuance of that control,
apparent from the terms of the statute, is essential to the
accomplishment of its beneficent purpose, as otherwise probation
might be more reluctantly granted, or, when granted, might be made
the occasion of delays and obstruction which would bring reproach
upon the administration of justice.
See Campbell v.
Aderhold, 36 F.2d
366, 367;
United States v. Mulligan, 48 F.2d 93, 94;
Jianole v. United States, 58 F.2d 115, 117;
Commonwealth v. McGovern, 183 Mass. 238, 66 N.E. 805;
People ex rel. Pasco v. Trombly, 173 App.Div. 497, 499, 160 N.Y.S.
67;
Richardson v. Commonwealth, 131 Va. 802, 810, 811, 109
S.E. 460;
People v. Dudley, 173 Mich. 389, 392, 395, 138
N.W. 1044;
People v. Sanders, 64 Cal. App. 1, 220 P.
24.
The question, then, in the case of the revocation of probation,
is not one of formal procedure either with respect to notice or
specification of charges or a trial upon charges. The question is
simply whether there has been an abuse of discretion, and is to be
determined in accordance with familiar principles governing the
exercise of judicial discretion. That exercise implies
conscientious
Page 287 U. S. 223
judgment, not arbitrary action.
The Styria v.
Malcomson, 186 U. S. 1,
186 U. S. 9. It
takes account of the law and the particular circumstances of the
case, and is "directed by the reason and conscience of the judge to
a just result."
Langnes v. Green, 282 U.
S. 531,
282 U. S. 541.
While probation is a matter of grace, the probationer is entitled
to fair treatment, and is not to be made the victim of whim or
caprice.
Second. Applying these principles, it is apparent that
the instant case has the peculiar feature that the probationer was
actually serving a jail sentence while on probation with respect to
another sentence. But, even in jail, he was subject to the
conditions of the probation. By its terms, he was to refrain from
violation of law and "in all respects conduct himself as a
law-abiding citizen." As at the same time that the sentence in
question was suspended and probation was granted, he was committed
to jail upon a distinct sentence, there was also a condition
necessarily implied that he should not be guilty of conduct
inconsistent with obedience to that sentence. Abuse of the liberty
granted him to leave the jail for a particular purpose, and
absenting himself in the circumstances described in his testimony
-- apart from the question of violation of law (
see Act of
May 14, 1930, c. 274, § 9, 46 Stat. 325, 327, U.S.C. Tit. 18, §
753h) -- was clearly a breach of that condition, and the court was
entitled to take note of it.
There is, properly speaking, no question here of notice.
Defendant was brought before the court and questioned. Defendant
was not only heard, but gave his testimony. The inquiry related to
his own conduct in connection with his leaving the jail, and the
court could properly restrict the examination to what was pertinent
to that conduct, and could refuse to extend the inquiry to embrace
other matters. The hearing was summary, but it cannot be said that
it was improper or inadequate in view of the nature of the
proceeding and of the particular point upon which
Page 287 U. S. 224
the court rested its decision. The court revoked the probation
upon defendant's admissions of his dereliction, and it does not
appear that there was an abuse of discretion.
Judgment affirmed.
*
See also Riggs v. United States, 14 F.2d 5, 9-10;
Furrow v. United States, 46 F.2d 647;
Ex parte
Lucero, 23 N.Mex. 433, 168 P. 713;
State v. O'Neal,
147 Wash. 169, 265 P. 175;
Plunkett v. Miller, 161 Ga.
466, 131 S.E. 170;
Williams v. State, 162 Ga. 327, 133
S.E. 843;
State v. Hardin, 183 N.C. 815, 112 S.E. 593;
Weber v. State, 58 Ohio St. 616, 51 N.E. 116.
Compare
Campbell v. Aderhold, 36 F.2d
366, 367;
United States v. Mulligan, 48 F.2d 93, 94;
Jianole v. United States, 58 F.2d 115, 117;
People ex
rel. Forsyth v. Court of Sessions, 141 N.Y. 288, 36 N.E. 386;
People ex rel. Pasco v. Trombly, 173 App.Div. 497. 160
N.Y.S. 67;
People ex rel. Woodin v. Ottaway, 247 N.Y. 493,
497, 161 N.E. 157;
Commonwealth v. McGovern, 183 Mass.
238, 66 N.E. 805;
Finer v. Commonwealth, 250 Mass. 493,
146 N.E. 23;
People v. Dudley, 173 Mich. 389, 392, 395,
138 N.W. 1044;
Richardson v. Commonwealth, 131 Va. 802,
810-811, 109 S.E. 460;
State v. Sullivan, 127 S.C. 186,
121 S.E. 47;
State v. Miller, 122 S.C. 468, 473-475, 115
S.E. 742;
People v. Sapienzo, 60 Cal. App. 626, 213 P.
274;
People v. Sanders, 64 Cal. App. 1, 220 P. 24.