Journal of Criminal Law and Criminology Volume 30 Article 8 Issue 4 November-December Winter 1939 Consolidation of Pardon and Parole: A Wrong Approach Henry Weihofen Follow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclc Part of the Criminal Law Commons, Criminology Commons, and the Criminology and Criminal Justice Commons Recommended Citation Henry Weihofen, Consolidation of Pardon and Parole: A Wrong Approach, 30 Am. Inst. Crim. L. & Criminology 534 (1939-1940) This Article is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. CONSOLIDATION OF PARDON AND PAROLE: A WRONG APPROACH HENRY WEMOFEN* There is a growing tendency throughout the United States to consolidate pardon with parole administration, and even with pro- bation. This movement seems to have met with almost unanimous approval; at least it has no opposition. It is the purpose of this paper to remedy that lack and furnish the spice of opposition. The argument for such consolidation-is that pardon and parole perform very largely the same function. A conditional pardon, particularly, is practically indistinguishable from a parole. But the governor, granting a conditional pardon, usually has no officers available to see that the conditions are complied with. Why not-, it is argued-assign this duty to parole officers? Moreover, it is felt to be illogical to have two forms of release so similar as parole and conditional pardon issuing from two different sources, one from the parole board and the other from the governor's office. Why not place the power to grant both in one authority-for example, a board of pardon and parole of which the governor is a member? This reasoning has led about half of the states to combine the pardoning with the paroling authority to greater or less extent. Thus in seventeen states the parole board is also the governor's advisory pardon board,1 and in at least two others the parole com- missioner is also the governor's advisory pardon commissioner.n 2 School of Law, University of Colorado, Boulder, Colo. lALA. Co=T., art. V, §124; Anm. REv. CODE Amr. (Struckmeyer, 1928) §5220; Im REv. STAT. Axs. (Smith-Hurd, 1935) c. 38, §802; IND. STAT. Am. (Burns, Supp. 1936) §§13-1301 to 13-1304; IowA CoDn (1935) §3912; MAss. LAws Amr. (Mlichie, 1933) c. 127, §154; Mich. Pub. Acts 1937, no. 255, c. II, §§1, 13; Mo. Laws, 1937, p. 400; MoMr. CoNST., art. VII, §20; MoNr. REV. Cors ANN. (Anderson and McFarland, 1935) §§12434, 12455, 12456, 12264; N. Y. CONSO. LAws (Cahill, 1930) c. 18, §116; Omro CoDE ANN. (Throckmorton, 1936) §2211-7; PA. STA. AwK. (Purdon, 1930) tit. 61, 1299; 7br- Coxsr, art. IV, §11, as amended 1936; Tex. Laws 1935, p. 1237; Wash. Laws 1935, C. 114; Wyo. REV. STAT. (Courtright, 1931) §80-102 In North Carolina and Oklahoma, the governor in exercising the pardoning power has the help of a pardon and parole officer and a pardon and parole board. 2 Md. Laws 1922, c. 29; N. C. Laws 1933, c. 1M1; N. C. Laws 1935, c. 414. In Oregon also, although no legal authority exists for the practice, the governor always requests the parole officer to investigate pardon applications, and this request is complied with. [534] PARDON AND PAROLE 535 In a few states the power to grant paroles is treated in the constitu- tion as part of the clemency power, the governor being given power to "grant reprieves, paroles, commutations and pardons."3 Several of the states which have vested the pardoning power in a board rather than in the governor alone have given this board jurisdiction over both pardons and paroles." The courts have sometimes fos- tered this tendency by holding that parole is a form of executive clemency,5 and even holding that any attempt to vest the paroling power elsewhere is unconstitutional. 6 Seven states have more or less consolidated the administration of pardon with probation- most of these within the last few years.7 No one will deny that it is undesirable to have practically the same type of release issued from two possible sources under two different names. Nor will anyone dispute that it is desirable, if conditional pardons are going to be issued as a substitute for pa- roles, that there should be officers provided to supervise persons so released to see that the conditions are complied with. It seems to me, however, that to try to accomplish this by consolidating the two is not the best solution. I propose instead that we start a step further back, and define the proper sphere of action for pardon and parole respectively; and I believe that a proper definition would show them to be entirely different in nature and purpose. If each Sa A. CosT., art. V, §124; Osx.A. CoxsT., art. VI, §10. 4IDAo CONST., art. IV, §7; NB. CowsT., art. V, §13; NEs. Comr. STAT. (1929) §29-2602, 29-2604; NEv. CowsT., art. V, §14; N. J. CoMP. STAr. (1911) fit. 53, 1173; UTAH COST., art. VII, §12; UTAE Rrv. STAr. AwN. (1933) §67-0-1; State ex rel. Bishop v. Board of Corrections, 16 Utah 478, 52 Pac. 1090 (1898). 5In re Prout 12 Idaho 494, 86 Pac. 275 (1906); State v. Yates, 13 N. C. 753, 1 S. E. 337 (1922). 6 People v. Cummings, 88 Mich. 249, 50 N. W. 310, 14 L. I. A. 285 (1891); Fehi v. Martin, 155 Ore. 455, 64 P. (2d) 631 (1937); State ex rel. Bishop v. Board of Cor- rections, 16 Utah 478, 52 Pac. 1090 (1898). As a result of the latter decision, parole in Utah is now administered by the board of pardons. UA REv. STAr. Ar. (1935) §67-0-7. See also In re Conditional Discharge of Convicts, 73 Vt. 414, 51 AtL 10 (1901). 7 Missouri, Tennessee and Washington have recently created consolidated boards which not only administer both parole and probation, but also act as the governor's advisory pardon board. Mo. Laws 1937, p. 400; Tenn. Laws 1937, c. 132, 276; Wash. Laws 1935, c. 114. Michigan in 1937 consolidated all three functions in a department of corrections, but probation is handled by one bureau within this department, and pardons and paroles in another. Mich. Pub. Acts 1937, No. 255. In Arkansas the director of probation and parole is appointed by the State board of pardons and paroles, and presumably the administration of the two release procedures is fairly closely linked in the same officials. In Montana the board of prison commissioners is charged with the administration of probation. This board consists of the governor, the attorney general and the secretary of state; the first two of these, together with the state auditor, also make up the board of pardons. In North Dakota the State board of administration has charge of probation, sub- ject to the probation regulations of the board of pardons. 536 HENRY WEIHOFEN were kept within its proper limits, there should be no overlapping and so no necessity for consolidation. It is submitted that the policy and practice of releasing con- victs from the penitentiary upon conditions calling for good be- havior, and under supervision, should be denominated parole, with administration concentrated in one agency, the parole board. Par- don should not be used as a regular release procedure but should be an extraordinary measure, granted for peculiar reasons calling for mercy or leniency. The cause for our present cohfusion is that pardon is not so restricted to extraordinary cases, but is in many states employed as a regular releasing device, as a substitute for or supplement to parole. The reason for this situation is largely historical. Before regular parole systems were created by statutes, the same general purpose could to some extent be served by a conditional pardon." It wasn't necessary to wait for the legislature to enact a parole law; a makeshift sort of parole could be had by a pardon granted upon condition of maintaining good behavior. This was mere "make- shift," however, because the governor had no staff to see that the conditions were in fact complied with, and a conditional release without supervision is in effect a mere turning loose of criminals without any strings attached. It fools only the public and lulls the consciences of officials; it never fools the convicts, who know quite well that no one is checking up on the requirement that they re- main employed, stay away from evil companions, refrain from drink- ing, etc. Nevertheless, this makeshift substitute for parole was suffi- ciently like the real thing in appearance to satisfy some states, es- pecially since it was commonly referred to as "parole." The public, hearing it spoken of as "parole" thought they had a parole system and were satisfied; there was no sufficiently strong demand for a real parole law to overcome legislative inertia. 8 The usefulness of conditional pardon for this purpose was early recognized. In 36, a statute was enacted in England providing that no pardon of felony would be allowed unless the party found sureties for his good behavior, before the sheriff and the coroners of the county (10 Edw. MIT,c. 2). This was repealed in 1694, by a statute which provided that the judges before whom any pardon of felony was pleaded might at their discretion require that the person enter into a recognizance with two sureties for good behavior for a period of time not to exceed seven years (5 & 6 W.