Crime and Punishment in American History - Lawrence M. Friedman [260]
Charles Coons of Santa Clara County, California, convicted of selling intoxicating liquor in 1925, was also lucky. But for him, too, probation was not exactly freedom. Six standard conditions were printed on the probation form the county used. The probationer had to “accept the first honorable employment” offered; he had to get written consent from the probation officer if he moved or changed jobs; he had to report to the probation office once a month; “in all respects” he had to “conduct himself honestly, avoid all evil associations, obey the law, and abstain from the use of all intoxicating liquors, opium in any form, cocaine or other noxious drugs”; under no circumstances was he to “enter a saloon, where liquor is either sold or given away.” Judges could, and often did, add other conditions. Coons, for example, was not to “visit ... pool rooms, or prize fights, or other improper places.”85 A young offender in 1922, Lawrence Narvaez, was to “remain at home at night for a term of six months; except when accompanied by his father he cannot go down town. At all times during his probation he shall obey his father and be under his control.”86
Still, probation was a good deal; defendants were certainly more than willing to take it, whatever the conditions; and many judges made free use of it. In January of 1917 in the Common Pleas Court of Cleveland, 135 men out of 254 found guilty of felony got probation (which in Cleveland was called, somewhat confusingly, “parole”). Not everyone approved. Reginald Heber Smith and Herbert B. Ehrmann, who participated in the Cleveland crime survey, were bitterly critical. These defendants, they wrote, “were a selected bad lot,” the dregs of the process; those who had “anything in their favor” had been filtered out before trial, or by pleading down to a misdemeanor. Yet this “dangerous group went practically unpunished.” They compared the judge’s behavior to the “old game of ‘Donkey’” where the “blindfolded player often relies upon the cheers of the onlookers to guide him to the spot where he can pin the animal’s tail in its proper place.” The judges “follow the clamor of the press and public.“ The fault also lay, in part, in the weak, understaffed probation department. Defendants were paroled to “relatives, detectives, clerks, and even stenographers in the prosecutors office.” As a result, probation was a “joke.”87
Probation survived such critiques, and flourished. In fiscal year 1970, in the federal district courts, 28,178 defendants were convicted; of these, 12,771 were put on probation, slightly more than the 11,071 who were imprisoned.88 The backlash and cries for toughness that followed in the seventies, however, were bound to have an impact on probation. In 1988, in the federal district courts, imprisonment now outweighed probation, 22,473 to 16,057. And in the state courts in 1986, it was estimated that 28 percent of the male felony defendants got probation, while 70 percent went to prison or jail.89dv Perhaps if the prison crush were not so great, probation would have shown even more signs of shriveling.
The Sentencing Process
Probation involved (ideally, at least) an individualizing process—weigh—ing the man or woman in the balance to see what he or she deserved. This was at the heart, too, of the indeterminate sentence (see chapter 7). And it was at the heart of the whole sentencing process, which vested vast discretion in the judge.
In California, for example, in the first part of the century, “proceedings upon sentence” took place after conviction. Judge and district attorney would ask questions to find