The Politics of Judicial a17Ministration: Transfer of the Federal Probation System

• DOI: 10.1177/106591297002300407
• Date: 01 December 1970
• Author: Peter Graham Fish
• Published date: 01 December 1970
• Subject Matter: Articles

THE POLITICS OF JUDICIAL A17MINISTRATION:
TRANSFER OF THE FEDERAL PROBATION SYSTEM
PETER GRAHAM FISH
Duke University
RGANIZATIONAL
integrity and agency survival are concerns looming
~
large in the minds of administrators who seek to accomplish particular
goals. Ends can be achieved only if adequate means exist or are created.
And whether these means emerge, live, or vanish depends largely on the workings
of the political process, on the degree of support which administrators are able to
muster in Congress, from the President, and from agency clientele. Without a
favorable balance of political support over political opposition, survival of the
agency may well be doomed.’
1
The federal probation service presents a classic model of an agency caught in
the throes of politically powerful forces over which it enjoyed only limited control.
During the last three decades, it has experienced the dichotomic pressures toward
agency preservation and autonomy on the one hand and in the direction of relo-
cation and integration on the other. A bureaucratic imbroglio in the 1930’s
brought about transfer of the agency from the Department of Justice to the federal
court system, a change which the Department and its allies in Congress have been
attempting, with vigor and determination, to reverse. And they have recently found
a potent source of support in the Republican party now returned to power in the
Executive Branch of the national government.
That party, with its emphasis on &dquo;law and order&dquo; in the last presidential
campaign, promised to revamp the federal correctional system. More specifically,
the 1968 platform called for &dquo;creation of a Federal Correctional Service to con-
solidate the fragmented and overlapping federal efforts.&dquo; 2 Merged into a single
agency would most likely be probation, now administered by the judiciary, and the
Bureau of Prisons and the Board of Parole, both presently attached to the Justice
Department.
Thus, the issue of whither the federal probation system has once more been
raised. Concomitantly, it might well be asked: How did its transfer come about in
the first instance?
In brief outline, the Department of Justice’s administration of probation
suffered an unfavorable balance of political opposition over political support dur-
ing the late 1930’s. Its administrative policies antagonized important clientele:
federal judges, who appointed probation officers, and congressmen, highly respon-
sive to criticism emanating from the judges. Yet the Department’s efforts to cen-
NOTE: I am indebted to the University Committee on Research in the Humanities and
Social Sciences of Princeton University for support of research for and the typing of
this article. A full-length study on the subject of federal judicial administration by the
author will be published by the Princeton University Press.
1
Harold Stein (ed.), Public Administration and Policy Development: A Case Book (New
York: Harcourt, Brace, 1952), p. 388.
2

Republican Platform 1968, Committee on Arrangements, Republican National Committee,
1968, p. 7.
769

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770
tralize and integrate the administration of a highly decentralized organization won
the plaudits of those legislators concerned with accountability, economy, and
efficiency. In the ensuing struggle, supporters of the Department lost, and respon-
sibility for administering the federal probation system was transferred to a newly
established agency within the judiciary -
the Administrative Office of the United
States Courts.
EXECUTIVE REORGANIZATION
Relocation of probation in the judicial branch came in the midst of President
Franklin D. Roosevelt’s executive reorganization campaign. The agency’s transfer,
however, was not explicitly a part of any reorganization plan although the status
of the several correctional services had been considered. An interdepartmental
committee to coordinate health and welfare activities had assumed a neutral stance
on the issue in its 1938 report. It then found grounds for merging the functions of
probation, parole, and institutional supervision in a proposed Department of Wel-
fare because of their close relationship to other social work functions.3 Yet, at the
same time, the committee noted that the intrinsic importance of these same func-
tions to the courts, and to the detecting, apprehending, and prosecuting agencies,
favored their retention in the Department of Justices.
4
More forthright was the position taken by the Brookings Institution in its 1937
study submitted to the Senate Select Committee to Investigate the Executive Agen-
cies of the Government. Transfer of the Bureau of Prisons, including probation,
and the federal prison industries to a Department of Welfare &dquo;would be logical&dquo;
declared the report.5 On the other hand, it predicted that the twin goals of effi-
ciency and economy would remain unachieved because separation of the Prison
Bureau from the Department of Justice would not simplify probation procedures
and might well cause an increase in probation personnel.&dquo; The report thus con-
cluded that the bureau should be left in the Department &dquo;for the time being at
least.&dquo; 7
ADMINISTRATIVE CENTRALIZATION AND CONFLICT
If relocation of the probation system bears little, if any, direct relation to the
New Deal’s reorganization programs, it does have a vital source in the Justice
Department’s administration of that system. On one hand it sought to build a pro-
fessional probation service based on national and objective standards. On the other
hand, many judges sought a service reflecting local values and customs as much
as possible.
The Act of March 4, 1925, establishing the federal probation system, permitted
federal judges to appoint probation officers from a civil service roster, and to fix
3
"Report of the Technical Committee on Probation, Parole, and Crime Prevention of the
Interdepartmental Committee to Coordinate Health and Welfare Activities," 1938,
Record Group 60, Department of Justice Files 220602, section 5, p. 8 (National
Archives, Washington, D.C.).
4

Ibid.
5
U.S., Congress, Senate, Select Committee to Investigate the Executive Agencies of Govern-
ment, Investigation of Executive Agencies of the Government, no. 8, 75th Cong., 1st
Sess., 1937, p. 113.
6

Ibid., p. 114.
7

Ibid.

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771
their salaries subject to the Attorney General’s approval.,, Under its terms, the
Department strove to exercise some administrative control over the fragmented
probation establishment. It sought &dquo;to be the usual spider in the center of the
web&dquo; who would &dquo;bring together all the threads and weave them.&dquo; Encouraging
the Attorney General and his cohorts in this endeavor was the House Appropria-
tions Committee which again and again insisted &dquo;that there should be a check on
all probation officers by the Department of Justice.&dquo; 10
But the Act of 1925 had never granted the Attorney General such authority,
and after that measure had been in operation for only a few years, Congress con-
cluded &dquo;that the work, even of the few probation officers so far appointed, is not
under adequate supervision or control The judges, too, were dissatisfied with
the Act. They objected to the civil service list on grounds that it impaired their
power to appoint probation officers, who bore a confidential relationship to them. 12
In an effort to rectify apparent weaknesses in the 1925 measure and to assuage
the feelings of miffed judges, Congress passed the Act of June 6, 1930.13 It freed
judges from the civil service criterion but simultaneously abolished their power to
fix initially the salaries of probation officers. This critical duty was transferred to
the Attorney General. 14 More significantly, the Act substantially enlarged and
enumerated the Department’s responsibilities for the administration of the proba-
tion system. These expanded duties consisted of assorted housekeeping functions
common to central agencies and included formulating &dquo;general rules for the proper
conduct of the probation work.&dquo; 15 The Attorney General was thus called upon to
&dquo;endeavor by all suitable means to promote the efficient administration of the pro-
bation system and the enforcement of the probation law.&dquo; 16
At the same time, the House Appropriations Committee attempted to
strengthen the Department’s supervisory authority over probation officers by
writing a salary control provision into the agency’s appropriation bill for 1931 and
for subsequent years as well .17 &dquo;No part of this or any other appropriation,&dquo; read
the new provision, &dquo;shall be used to defray the salary or expenses of any probation
officer who does not comply with the official orders, regulations, and probation
standards promulgated by the Attorney General.&dquo; 18
8
43 Stat. 1260, section 3.
9
Luther C. White, U.S., Congress, House, Subcommittee of the Committee on Appropria-
tions, Hearings on the Department of Justice Appropriation Bill for 1927, 69th Cong.,
1st Sess., 1926, p. 331.
10
William B. Oliver, U.S., Congress, House, Subcommittee of the Committee on Appropria-
tions, Hearings on Department of Justice Appropriation Bill for 1933, 72d Cong., 1st
Sess., 1932, p. 467.
" U.S., Congress, House, Committee on the Judiciary, Amend the Probation Law, 71st Cong.,
2d Sess., 1930, H. Rept. 92 to accompany H.R. 3975, pp. 1-2.
12
Sanford Bates, U.S., Congress, House, Subcommittee of the Committee on Appropriations,
Hearings on the Department of Justice...