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The working title of the film was Roosty. According to Hollywood Reporter news items, Virginia Grey was initially considered for the role that went to Marsha Hunt. Hollywood Reporter production charts include Fay Holden in the cast, but she was neither in the viewed print nor mentioned in reviews, and it is likely that her part was cut before the press preview. Clyde De Vinna was listed as the cameraman on all production charts; however, only Harold Rosson is credited with photography on the film. News items note that portions of the picture were filmed on location in Sherwood Forest, CA. The farm sequences were partially filmed in Inglewood, CA. This was Robert Sterling's first film under contract to M-G-M, and the first feature produced by Jack Chertok, who had formerly been with the studio's shorts department. According to records of the OWI, The Penalty was "disapproved for all export" in July 1943 by Watterson R. Rothacker, Chairman of the Los Angeles Board of Review of The Office of Censorship, because "it is lawless throughout, with killings, juvenile delinquency, and other undesireable features."