persistent, the influence of which must imperatively be thrust out of the judge's mind, is this, that probation like the sentences prescribed in the Penal Law still looks to the offense. Once probation be decreed, the court shall see before it the offender and no longer the offense excepting in so far as the latter is a guide and index to the defendant's shortcomings which are to be corrected. We have all known convicted felons whose hearts were softer, whose characters were more malleable and whose minds. more amenable to reformative influences than even a so-called first offender convicted only as "drunk and disorderly." Most of us are probably convinced that no Legislature should interfere with the free play of judicial discretion, as for instance by laying down an invariable rule that all first offenders shall be placed on probation. Every one of us has had experience with first offenders who, upon investigation, have been found to have so elaborate a history of moral delinquency that to treat them as first offenders would make a travesty of justice. It was such a one who upon being asked, "How often have you been convicted before,” replied proudly, "I am a first offender; I have never been convicted before." To whom the judge said, "you mean you have never been caught before."

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Again without entering into a needless discussion as to the metaphysics of punishment, we must never forget that one function of the court is that of social defense against crime. Professor Albert Kocourek of Northwestern University in a well considered paper on this point, says, "The probation system is a difficult field of thought now still ruled by confused theories of the proper function of criminal justice. It is inspired no doubt by a laudable thought but historically it is entirely at variance with the legal evolution of all developed societies. It tends to make a victim of the person injured in favor of the wrong-doer. It seems hard to take away from this part of society this armor of protection in order to perform an experiment on its enemies. We may therefore conclude that the probation principle as a visitorial expedient which leaves the offender in his normal surroundings as a productive unit of society under the direct tutelage of the State is a valuable invention provided that the probation system does not for the purpose of

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reforming the offender, inflict an evil on the person injured and does not by its leniency encourage the commission of crimes."

In short, the judge must still keep in mind that whatever be the excuses in behalf of the defendant or his needs from the social humanitarian point of view, the case may still be one in which punishment must be inflicted for its deterrent, expiatory or retributive value. In some cases of this character the Legislature has given statutory recognition to this principle by forbidding probation or by peremptory enactment imposing a fixed penalty within a sliding scale. Judge Marsh has instanced such a case in citing our well-known Section 150 of the Tenement House Law. Other examples are to be found in many statutes defining mala prohibita, such as laws and ordinances pertaining to motor vehicles, child labor and factory safety laws.

By way of reconciling the views of those who may be unalterably opposed to the doctrine of deterrent punishment it is suggested that in appropriate cases involving turpitude, in which the law permits probation, there may be prescribed a course of probationary conduct which will automatically work out not mere milksop and often mistaken kindness but also a recognition of the fact that within the probationary purpose there inheres also a penalty. For example, restitution where possible can be enforced as a prerequisite while strict probationary oversight and the compulsion to report frequent may always be used as stern disciplinary agencies.

While laying emphasis upon these elements of the proper attitude to be assumed toward probation by the man on the bench, it is surely not amiss to point out that judicial impatience with a multiplicity of reports, forms, blanks, card systems and indices, to which indeed there seems to be no end, may be, plainly speaking, ill advised. The method of statistics has not perhaps received the recognition it merits because anyone may juggle with figures and statistics may be gathered to prove almost any proposition under the sun. But, as Mr. Koren well demonstrated in an address before an earlier conference of this Association, in such work as the Criminal Courts are doing we shall never be able to reach any definite destination, unless statistics are

carefully and methodically compiled so that the competent statistician may draw the deductions upon which future criminological science is to be upbuilt. It is precisely because in the past statistics have never been adequately or in many cases at all preserved that skeptical city and county authorities have not been impressed with the necessities of the probation system and have refused the required appropriations. In our State the State Probation Commission has sought to introduce a system of reports to fill this need but I think that generally such commissions as well as ourselves are still laboring under considerable uncertainty as to just what kind of a statistical and filing system will produce profitable and worth while material for the future scientist's study. However, while we are slowly groping our way, let no one captiously criticize even though the labor falling upon the shoulders of the probation officers as well as our own may be onerously reduplicated. We may balk at the seemingly unnecessary duplicity of work involved in having the judge indorse upon the papers all the minute details, terms and conditions of probation in each individual case especially as the probation officer's card and report will fully state the same matters, but a lawful and intelligible administration of the probation system requires that this be done.

I shall omit all special discussion of two topics, both unquestionably of the highest importance, namely: the kinds of cases in which and the kinds of persons to whom probation is to be regarded as applicable, chiefly because there now seems to be a fair degree of agreement on these subjects and I cannot add any suggestion of importance to the many admirable discussions already published and easily accessible to the student of probation. The judiciary generally are learning the caution borne of disappointment and are apparently tending to be more carefully conservative in apportioning probation to the offenders before them. Too many failures will certainly sound the doom of the whole system, especially before the bar of public opinion the support of which we need above all things in the establishment of reforms in our criminal and penal administrations. This does not mean that a too timorous conservatism shall withhold probation from even a single deserving defendant but it does mean that in case of doubt, the doubt had better be resolved against probation. Perhaps also here in New

York City there is a tendency to narrow the numbers placed upon probation because if this remedy were dealt out with too liberal a largess, our system would soon be swamped and our comparatively small force of probation officers be compelled to throw up its hands in dismay. Further the now very general acceptance of the principle that there should be no probation until after a very careful preliminary investigation or its equivalent, has still more tended to prevent the unduly great increase of probation cases. I suggest with all the emphasis I can lay upon it that this conference sanction in some way with what authority it can command, this one great principle fundamental to all probation work, namely, that no judge should place any person whatsoever upon probation until after as complete a preliminary investigation into the character, history and mental attainments of the defendant as he can have made, shall disclose that such defendant is a fit subject for probation. This principle seems so self-evident, the wonder is that there still be judges who transgress it.

There are two remaining thoughts which are however so largely for the present at least of academic value that I shall merely mention them in passing. There is first the suggestion made recently by the Committee on Adult Probation of the American Institute of Criminal Law and Criminology of which Chief Judge Wilfred Bolster of the Boston Municipal Court was chairman, contained in these words: "We strongly recommend that after successful probation the indictment or complaint shall be dismissed of record." While this may at some future time become a fruitful suggestion, it may be fairly questioned whether in New York State under the present constitution it would not be in contravention of the power to pardon reposed exclusively in the hands of the Governor of the State. But that it may be adopted at some future day as a logical capstone to our structure of probation I personally do not doubt.

The second thought which also involves some debatable and moot points is this: just how and how far shall the judge keep or be required to keep in rapport with the probationers and their progress. The almost complete withdrawal of interest and supervision on the part of the judges in and over the persons placed by them on probation, coupled with the unpleasant facts that so many of the sentences imposed, whether fines, imprisonment, suspension

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or probation are founded on ill-gathered and incomplete data, are so often fearfully discrepant and anything but uniform, and the fact that after sentence has been pronounced, the very man whose fiat set the whole penal machinery in motion becomes completely severed from the case, these facts have led highly respected authorities in penology to propose that the power to sentence be taken away entirely from the courts. To the courts should be left the function of finding the defendant guilty or not guilty, of 'separating the sheep from the goats." The convicted ones should then be transferred to a State or local penal commission for sentence and for periodic revision of sentence as they show progress toward reform. To me, the condition of complete estrangement of the sentencing judge from the defendant placed by him on probation is an anomalous one. A great many of our judges must unquestionably agree with me for I have found that they invariably refuse to interfere with or to revoke probation excepting in their own probation cases. Further our new New York Parole Law (Chapter 579, of the Laws of 1915) distinctly provides that judges shall remain in touch with the cases of defendants sentenced under its provisions, to the extent that indeterminate sentences shall not be determined except upon their approval and consent. With respect to the Magistrates' Courts of New York City, a remedy also has been suggested, namely, by the institution of a new functional court to be known as the Probation Court with a stationary judge therein to become an expert in and generally to supervise all probation cases.

Little need be added upon the general subject of suspension of sentence without probation, assuming that this point is included in the topic assigned to me. The authorities are now generally agreed that in cases involving moral delinquency or turpitude, suspension of sentence without probation is useless and a mere makeshift. The committee headed by Judge Bolster goes so far as to call it "vicious." Of course this means suspension of the imposition of sentence. On the other hand there On the other hand there may always be merit in appropriate cases in a suspension of the execution of sentence after a definite sentence has been pronounced, whether of fine or imprisonment. This is what the European penal procedure calls a "conditional sentence," namely, a sentence which is or is not to be executed conditioned upon the bad or good conduct