History 1965 to 1966CHAPTER V
1965-1966: THE STRUGGLE TO KEEP PROBATION WITHIN THE JUDICIARY
Probation officers now report individually to the 92 federal court districts by which they are employed. Under the proposed revision the chief of all of them would be the director of the United States Correction Service, a new agency which would be formed by the consolidation of probation offices with the Bureau of Prisons of the Justice Department. Field supervision (probation and parole) is as much a part of the executive function as prison supervision. (It) is foreign to the experience and capabilities of judges engaged in daily litigation."' Report of Ramsey Clark, Deputy Attorney General to House Judiciary Subcommittee (Federal Times, June 15, 1966).
Perhaps the desire to draw the Federal Probation Service into the Department of Justice along with the Bureau of Prisons always existed in some quarters since 1940. At that earlier time, with the creation of the Administrative Office of the U.S. Courts, probation offices were removed from the authority of the Bureau of Prisons, under whom they had worked, and were placed under the direction of the Courts.
In 1965, some 25 years later, there was a move afoot to return to the earlier arrangement. The Director of the Administrative Office of the U. S. Courts, Warren Olney, the Director of the Bureau of Prisons, James V. Bennett and Chief Justice Earl Warren discussed what they perceived as the value of reorganization of the criminal justice agencies which would incorporate probation, parole and prison workers into one superagency. In early 1965, Nicholas deB. Katzenbach, the Attorney General, appointed Professor James Vorenberg, Director of the newly-created Office of Criminal Justice, to study the need for a consolidated correctional service.
The discussions concerning consolidation in early 1965 did not include the members of the Judiciary, however, nor the Probation Service. When Warren Olney and his Assistant Director, William Sweeney, sought to have the support of the Federal Probation Officers Association for the idea of unification, they revealed the proposal to President Al Wahl. Wahl, seeing the dangers and conflicts inherent in such a reorganization, opposed such a move and immediately brought the matter to Judge Luther Youngdahl, Chairman of the Subcommittee on Probation of the Judicial Conference, who was unaware of the earlier discussions, and he became extremely concerned. What followed was a long and time-consuming struggle to keep Probation Officers under the authority of the Courts in spite of the opposing positions of the Chief Justice and the Attorney General.
On May 4. 1965 Judge Youngdahl wrote to Professor Vorenberg about the reorganization being considered, pointing out the conflict of interest for probation officers working for the Court who would be under the jurisdiction of the Justice Department in the reorganization plan. A week later, while noting the objection of Judge Youngdahl, Professor Vorenberg submitted a lengthy proposal to Warren Olney on an integrated federal correctional service. Essentially, the proposal called for the creation of a Division of Corrections within the Department of Justice which would include probation, parole and prison personnel. According to Vorenberg, the establishment of such an integrated correctional service would permit recruitment, training, supervision and promotion of corrections personnel on a coordinated basis and thus further the development of professional standards and performance within the federal system.
Although the Vorenberg proposal called for unification, it recognized that certain areas had to be separate from prosecutorial interests, such as the operation of the Parole Board and the presentence work of probation officers. In effect, it was unifying on the one hand and returning to separate functions on the other. Ben Meeker, a Regional Vice-President of the Association at the time, suggested an alternative in which the Association and the Probation Division always believed. "There is merit in the idea of a closer working together under common leadership, but many of us believe that this can best be accomplished, not by consolidation, but by greater coordination of present services..."
Ben Meeker's comment was included in a cover letter that was sent to the field in early June 1965. The letter introduced ten propositions for which the Association sought comments from the field relative to the prevention of unification. The propositions cited a number of facts, such as the already existing coordination between federal criminal justice agencies, the nature of probation as an arm of the Court, the conflict of interest inherent in the Justice Department's involvement in judicial prerogatives and the non-interchangeability of the roles of probation officers and prison case workers.
Simultaneously with the solicitation for comments on the propositions, President Al Wahl distributed a paper on the needs of the Probation Service that was prepared by the Executive Board on June 1. The paper pointed to the requirement for more manpower, the need for continuing high-level communication between administrators of the Probation Division, the Board of Parole and the Bureau of Prisons; the need for regional field supervisors within the Probation Division; expansion of Probation Division staff; and expansion of training, psychiatric services and research. The Executive Board concluded its paper with a request that the Judicial Conference study and evaluate the administration of the Probation system for the prior twenty-five years before making a major change as called for in the unification movement.
As the FPOA was alerting the field and the judges of the District Courts of the unification drive, two major talks were delivered in support of consolidation. On May 18, 1965 the Chief Justice discussed the reorganization of federal corrections at the annual meeting of the American Law Institute, saying, in part, 'To me, this is a challenging idea and one that seems to offer an opportunity for a vast improvement for dealing with people convicted of crime in federal courts." On August 23, 1965 Attorney General Nicholas Katzenbach officially announced to the American Correctional Association meeting in Boston that the Justice Department was considering a unification of the federal correctional system which would take jurisdiction over federal probation officers away from the Courts. He indicated, too, that legislation toward this end was already in the Congress. The New York Times reported on Katzenbach's speech on August 24.[i] Five days later the paper published an editorial that suggested that federal probation officers were employed by patronage rather than training and talent, and it supported the unification concept.[ii]
In the face of the strong support toward consolidation, the FPOA took a number of significant steps. Ben Meeker sought out the President of the Chicago Bar Association and reviewed with him a prepared statement which he and Al Wahl had developed in opposition to consolidation. This had the effect later, when Bureau of Prisons' Director James Bennett addressed the national ABA meeting in Montreal seeking support for unification, that the Bar Association would only suggest further study rather than support for immediate implementation. Meanwhile, Al Wahl, in reaction to the Times’ editorial, asked each regional president to survey their Districts in order to obtain the qualifications of all officers. A directory was then compiled of these qualifications, which reflected a significantly high level of college education and experience. Wahl delivered it to the Administrative Office and to Judge Youngdahl of the Judicial Conference. Judge Youngdahl, in turn, personally brought the document to the two Congressional committees studying the idea of unification. In September 1965, at its Fall board meeting in Kansas City, Missouri, the Association unanimously rejected the transfer of the Federal Probation Service to the Department of Justice and passed a resolution to that effect.[iii] At the end of the following month, Wahl mailed a substantial information packet to every district in order that a coordinated public relations campaign could be initiated.[iv]
The early groundswell opposition, however, did not deter two identical bills providing for the unification of correctional services to be introduced in the Senate and the House in the first months of 1966. S3065 was introduced by Senator John L. McClellan (D-AR), and HR13549 was introduced by Representative Emmanuel Celler (D-NY). The Senate Subcommittee on Criminal Laws and Procedures, headed by Sen. McClellan, consisted of Senators Sam J. Ervin D-NC), Philip Hart (D-MI), Hugh Scott R-PA) and Roman L. Hruska (R-NE). House Judiciary Subcommittee Number Three was headed by Congressman William M. Tuck (D-VA) and included Edward Hutchinson (R-MI), William D. Edwards (D-CA) and Herbert Tenzer (D-NY). The House heard testimony in early June 1966 from Deputy Attorney General Ramsey Clark.
Clark, in his presentation, told the subcommittee that he had some reservations about the quality of work of some federal probation officers. Rep. Edward Hutchinson pressed the Deputy Attorney General but he would not be more explicit. When Hutchinson and other committee members persisted in their questioning, Clark agreed that more manpower would solve many of the problems that faced probation and parole. He did not fully yield to the subcommittee, however, stating that the concept of field supervision was as much a part of the executive function as prison supervision, and that field supervision was "foreign to the experience and capabilities of judges engaged in daily litigation." Rep. Hutchinson remained suspicious of Clark and the Justice Department's motives informing that “behind it all might be the Justice Department's idea that in some way it will be able to get a large increment of persons that the courts cannot.”
Few testified on the unification bills although Judge Youngdahl and the FPOA both sought to appear. In interviews with the Federal Times[v] Judge Youngdahl pointed out that the national district court judges disapproved of consolidation by a straw poll vote of 300 to 5. President Al Wahl described the Association's solid opposition to consolidation and suggested that much of what unification supporters sought, such as increased manpower, research and cooperation, could be obtained without major administrative changes.
Perhaps one of the strongest newspaper accounts describing the opposition was an editorial appearing in the Hartford (Connecticut) Courant on May 2, 1965:
A bill setting up the united system has been introduced by Representative Celler of New York. Thus far, hearings on the bill have failed to show that the present system isn't working. In fact, there is evidence every day in nearly every U.S. District Court in the nation to show that Federal Probation Officers do an outstanding job. An independent judiciary is a strong bulwark in the administration of justice, and probation officers are an essential arm of the courts. The Department of Justice is primarily a prosecuting agency. Let's keep them independent of each other.
While there was little testimony taken in the Senate and the House, Association representatives discussed the organization's opposition to unification with Senate and House committee members and ultimately received their support. In the House, Richard Chappell, who was engaged as counsel by the FPOA in light of the proposed consolidation, approached Representative Celler and received an assurance that, should unification be pressed, the FPOA would be permitted to testify. In a separate action, Al Wahl met with Judge Youngdahl and Albert C. Wollenberg of the Judicial Conference. Eventually, the Conference would unanimously oppose the consolidation bill (March 10, 1966). The Board was also able to make its views and position known to then President Lyndon Johnson through the efforts of FPOA Regional Vice-President Rosser Smith.
By mid-1966 the FPOA had been able to reach all field officers, the District Courts, the Judicial Conference and the Congress. An informational kit was distributed to all probation offices in order to provide sufficient information to continue to resist consolidation efforts.
For several years following the introduction of the proposal to consolidate the federal correctional system, bills lingered in Congress that could effect it. However, the Association's early work, in conjunction with the support of others, including the Judicial Conference, forestalled any change. The Association continued to monitor similar bills but eventually these, too, died without action.[vi] The Association can be justly proud of its significant role in maintaining probation officers within the judicial branch of government.
[iii] See Appendix F. The Kansas City Times reported about this board meeting on September 29. See Appendix G. Al Wahl’s response to the earlier New York Times’ editorial was made on October 4, 1965. See Appendix H. [vi] As former FPOA President Walter Evans has written to the author, the desire to incorporate Federal Probation Officers’ work into the responsibilities of the Bureau of Prisons “did not end as abruptly or as serenely as [it has been presented here]. A significant attempt was made by the Department of Justice to legalize the informal practice of Deferred Prosecution within the Bureau of Prisons. In the mid-1960’s the Bureau had situated employment placement officers in local communities and had hoped to transfer, by statute, the responsibility of supervising defendants on Deferred Prosecution supervision to these officers.” Again, through the organizing and educational efforts of Walter Evans and the Association, the attempt failed. Credit must also be given to Merrill Smith, then Chief of the Probation Division, for what Evans describes as his “integrity and quiet determination” which proved formidable to any legislation designed to weaken or alter the role of probation. Letter of Walter Evans to Philip Bigger, March 1, 1987.
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