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the Director of Emergency Conservation Work as to the eligibility for enrollment in Civilian Conservation Corps camps of persons on probation.

The Civilian Conservation Corps was created pursuant to the authority contained in the act of March 31, 1933 (c. 17, 48 Stat. 22, 23), which reads, in part, as follows:

"That for the purpose of relieving the acute condition of widespread distress and unemployment now existing in the United States, and in order to provide for the restoration of the country's depleted natural resources and the advancement of an orderly program of useful public works, the President is authorized, under such rules and regulations as he may prescribe and by utilizing such existing departments or agencies as he may designate, to provide for employing citizens of the United States who are unemployed, in the construction, maintenance and carrying on of works of a public nature in connection with the forestation of lands belonging to the United States or to the several States which are suitable for timber production; the prevention of forest fires, floods and soil erosion, plant pest and disease control, the construction, maintenance or repair of paths, trails and fire-lanes in the national parks and national forests, and such other work on the public domain, national and State, and Government reservations incidental to or necessary in connection with any projects of the character enumerated, as the President may determine to be desirable * * *. The President is further authorized, by regulation, to provide for housing the persons so employed and for furnishing them with such subsistence, clothing, medical attendance and hospitalization, and cash allowance, as may be necessary, during the period they are so employed, and, in his discretion, to provide for the transportation of such persons to and from the places of employment. That in employing citizens for the purposes of this Act no discrimination shall be made on account of race, color, or creed; and no person under conviction for crime and serving sentence therefor shall be employed under the provisions of this Act." [Italics supplied.]

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The inhibition against employment of persons "serving sentence" cannot reasonably be construed as referring to

utilization of the labor of persons actually under confinement in a jail, penitentiary, prison camp, etc. The statute provides for "employing citizens of the United States who are unemployed," and is purposed to relieve distress, not merely to obtain labor for the specified projects. Other statutes provide for the employment of Federal prisoners, and expressly forbid their "hiring out" or employment beyond the prison limits (U. S. C., title 18, secs. 708, 744a et seq., 764, 793, 838). A fortiori "employment" by the United States of unemployed citizens could not extend to employment of persons incarcerated in local prisons for violation. of local laws.

Therefore, since the rules of construction require that the inhibition against employing persons "serving sentence" must be accorded some effect, it is necessary that the words be interpreted as applying to the serving of sentences otherwise than by confinement in penal institutions, if reasonably possible; and this can be accomplished only by applying the provision to persons on parole or on probation, and to any persons who may be given conditional suspended sentences under State laws.

The Federal probation system was established to take the place of a former practice of suspending sentence, held illegal by the Supreme Court. Ex parte United States (242 U. S. 27, 51), United States v. Murray (275 U. S. 347, 357). Probation includes suspending of sentence-and it is unnecessary to treat the latter separately.

The Federal Probation Act (March 4, 1925, c. 521, 43 Stat. 1259-1260; U. S. C., title 18, secs. 724, 727) reads in part as follows:

"That the courts of the United States having original jurisdiction of criminal actions, except in the District of Columbia, when it shall appear to the satisfaction of the court that the ends of justice and the best interests of the public, as well as the defendant, will be subserved thereby, shall have power, after conviction or after a plea of guilty or nolo contendere for any crime or offense not punishable by death or life imprisonment, to suspend the imposition or execution of sentence and to place the defendant upon probation for

such period and upon such terms and conditions as they may deem best; or the court may impose a fine and may also place the defendant upon probation in the manner aforesaid. The court may revoke or modify any condition of probation, or may change the period of probation: Provided, That the period of probation, together with any extension thereof, shall not exceed five years.

"While on probation the defendant may be required to pay in one or several sums a fine imposed at the time of being placed on probation and may also be required to make restitution or reparation to the aggrieved party or parties for actual damages or loss caused by the offense for which conviction was had, and may also be required to provide for the support of any person or persons for whose support he is legally responsible."

The Federal Parole Act (June 25, 1910, c. 387, 36 Stat. 819, 821, as amended; U. S. C., title 18, secs. 714-723) provides, insofar as here pertinent, as follows:

"That every prisoner who has been or may hereafter be convicted of any offense against the United States and is confined in execution of the judgment of such conviction in any United States penitentiary or prison, for a definite term or terms of over one year, or for the term of his natural life, whose record of conduct shows that he has observed the rules of such institution, and who, if sentenced for a definite term, has served one-third of the total of such term or terms for which he was sentenced, or, if sentenced for the term of his natural life, has served not less than fifteen years, may be released on parole as hereinafter provided."

"That if it shall appear to said board of parole from a report by the proper officers of such prison or upon application by a prisoner for release on parole, that there is a reasonable probability that such applicant will live and remain at liberty without violating the laws, and if in the opinion of the board such release is not incompatible with the welfare of society, then said board of parole may in its discretion authorize the release of such applicant on parole, and he shall be allowed to go on parole outside of said prison, and, in the discretion of the board, to return to his home, upon such terms

and conditions, including personal reports from such paroled person, as said board of parole shall prescribe, and to remain, while on parole, in the legal custody and under the control of the warden of such prison from which paroled, and until the expiration of the term or terms specified in his sentence, less such good time allowance as is or may hereafter be provided for by act of Congress; and the said board shall, in every parole, fix the limits of the residence of the person paroled, which limits may thereafter be changed in the discretion of the board."

In the consideration of this matter, I have had the benefit of strongly divergent views as to the application or nonapplication of the statutory inhibition to persons on probation, although there appears to be a practical unanimity of opinion among those presenting such views that persons on parole are subject to the provision. I therefore deem it pertinent to quote from the opinion of the late Chief Justice Taft in United States v. Murray, supra, concerning the differences between probation and parole.

"The parole statute provides a board to be invested with full opportunity to watch the conduct of penitentiary convicts during their incarceration and to shorten it not only by the regular monthly reduction of days but by a larger diminution by parole.

"What was lacking in these provisions was an amelioration of the sentence by delaying actual execution or providing a suspension so that the stigma might be withheld and an opportunity for reform and repentance be granted before actual imprisonment should stain the life of the convict. * finally the Probation Act was passed. "The great desideratum was the giving to young and new violators of law a chance to reform and to escape the contaminating influence of association with hardened or veteran criminals in the beginning of the imprisonment."

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Insofar as concerns the difference, indicated by the Chief Justice, that the man on probation has escaped "the contaminating influence of association with hardened or veteran criminals," this is without apparent bearing upon the question here presented. The most "hardened" and "contami

nated" criminal obtains neither probation nor parole and, so far as the statute is concerned, is eligible for enrollment in the Civilian Conservation Corps camps immediately upon release. Obviously, therefore, the Congress did not undertake to discriminate for such reasons between less "hardened" and "contaminated" individuals who have earned parole or probation.

A person on probation is not serving that sentence which is suspended, and this is likewise true of one on parole. Each, upon revocation of probation or parole for breach of condition, must serve the full term of imprisonment, or the remainder of the full term of imprisonment, which was suspended without deduction of time elapsed while on probation or on parole. Anderson v. Corall (263 U. S. 193, 197), Archer v. Snook (10 F. (2d) 567, 569), Kaplan v. Hecht (24 F. (2d) 664, 665).

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However, as pointed out in Archer v. Snook, "imposition of probation is really a sentence," although a different kind of sentence from the one which is suspended; and it will be noted that Chief Justice Taft, in United States v. Murray, spoke of probation as "an amelioration of the sentence." "Sentence," in its broader import, is merely an order of the court pronounced in a criminal case-contrasted with "judgment" in a civil proceeding. Bouvier's low Dictionary; Cyclopedic Law Dictionary.

I have been referred to the statement by Circuit Judge Swan in Kaplan v. Hecht that "probation is not intended to be the equivalent of imprisonment." Opposed to this, Mr. Justice Butler stated in Anderson v. Corall that parole "is in legal effect imprisonment"; and Chief Justice Taft, in United States v. Murray, referred to probation as affording "in the beginning of the imprisonment" that which parole afforded at the end of the imprisonment. "Imprisonment," in the broader sense, was defined by Mr. Justice Baldwin, sitting in the Circuit Court, in Johnson v. Tompkins, et al. (13 Fed. Cas. p. 840, 853), as “any restraint of the personal liberty of another; any prevention of his movements from place to place, or his free action according to his own pleasure and will."

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