Crime and Punishment in American History - Lawrence M. Friedman [259]
After the Verdict: Probation
A jury’s verdict of guilty, or a guilty plea, or a judge’s decision, is not the end of the trial. The sentencing stage remains. And this is crucial. Here life or death may weigh in the balance; or, for far greater numbers, a prison term, or jail—or another chance. This “other chance” is probation.
Adult probation entered the system, for the most part, in the early years of the twentieth century. New Jersey enacted a probation law in 1900, New York in 1901, California in 1903.79 If the defendant asked for probation and seemed to have a reasonable shot, the judge would turn the case over to a probation officer. The probation officer would investigate the prisoner, then file a report, either recommending probation or not. Usually, the judge did what the report recommended, though he had the discretion to ignore it.
Probation was another step toward a more professional system of criminal justice. Not that early probation officers had any special training; they learned on the job. As late as 1932, Charles Chute wrote that the states had no prerequisites at all.80 Some did—in a minimal way. New York passed a law in 1928 saying that probation officers should be mentally, physically, and morally fit; over twenty-one; and have at least a high school education.81 Probation at least gave the judge the help of a person whose specific job it was to look into the defendant’s situation and character. Probation was also a move toward a more humane system of criminal justice. A poor wretch, a first offender caught in the tangles of justice, had a chance to escape the horrors of Sing Sing or San Quentin. But the probation system also gave probation officers and judges vast power, and vast discretion. They used this power to bend the system—consciously or otherwise.
The price of probation, to begin with, was a guilty plea and a humble attitude. Judges in many places demanded true confession and true atonement. Probation was the power to separate good people from bad. The good were more moral, moderate in habit, attached to work, family, and church—people who had slipped a bit but deserved another chance. The bad were the opposite of all this.
Early probation reports in California reveal a jumble of popular theories about crime and criminal personalities, and a jumble of popular prejudices about the morals of men (few women appeared in the records). The reports favored married men or men with family support. Jobs were a plus. And men who did not masturbate or go to brothels, and who stayed away from liquor and tobacco, were prime candidates. Drifters, the unattached, the vice-ridden, drug addicts—these never had a chance. Probation officers poked and rummaged in family histories. They examined character, habits, inheritance; they listened to gossip, they talked to neighbors. We read of one offender who had “masturbated since about fourteen” and was still (in 1914) not in full control of himself. He had gone to brothels (“three times”) and was “fond of theatre.” He had “no library card”—a sign, no doubt, of unregenerate ignorance. Probation was, of course, denied.82 In Chicago, in 1931, eighteen-year-old Emil C. was arrested for burglary. The probation office wrote a damning report. Emil’s brother Albert had been “Delinquent from the age of 8 years. Mother could do nothing with him. Loafed and stole at night.” Albert himself had a criminal record: “I simply mention this to show a family trait.” Emil’s parents lived above the “cheap little store” that they ran. It was just “a very poor little home, scantily furnished, and the neighborhood is as poor as the home.”83
Those who won probation were expected to toe the line. Young Albert Banks, of San Diego, who had written a bad check for $16.50 and defrauded a Mrs. Del Rey in 1908, pleaded guilty. Judge Lewis of Superior Court