Governing Mercy in the Emerging Republic

When the Revolution transformed New York from a British colony into a state a question arose: what would republican justice entail? This chapter reveals that the bloody code continued to operate for the first two decades of the state’s history. The first constitution, of 1777, assigned authority to the legislature to pardon in cases of murder and treason, which required the governor to share his discretionary powers with legislators. The first governor, George Clinton, was a military as well as a political leader who granted pardons and military paroles for tactical purposes as a tool of war. In the early republic Clinton urged the adoption of Enlightenment principles of mildness and certainty in punishment, but legislators resisted until 1796, when New York’s penitentiary era began.

The Entanglement of Parole and Pardoning in the Progressive Era

The rise of the expert, emphasized in most histories of progressive penology, was marked in New York; however, this chapter draws on parole board hearing records to reveal the enduring personal nature of discretionary release. Whereas governors dispensed mercy according to traditional criteria (favoring persons of previous good character, the infirm, and prisoners for whom respectable citizens were willing to vouch), comportment and deference mattered in parole hearings. Above all the Parole Board’s discretion hinged on the promise of work (for men) and a stable home (for women). Gubernatorial clemency became a resort for individuals who could not qualify for parole, but governors continued to court controversy when individual pardons favored the rich and influential.

The Pardon and the Progenesis of Parole in the Mid-Nineteenth Century

Most histories of parole trace its roots to Australian and Irish precedents, overlooking the Prison Association of New York’s role in monitoring and assisting discharged prisoners, both males and females. This chapter explains how a philanthropic organization established in the mid-1840s promoted the reformatory ideal and the notion that the discharge of prisoners must be earned through moral reform. Its executive members, among the leading penal theorists of the nineteenth century, became the foremost critics of the pardon power as a personal mode of discretion in need of replacement by a court of review, bound by strict rules. Their campaign to do away with the gubernatorial prerogative faltered by the 1860s, but the Prison Association successfully sowed the seeds for the flowering of indeterminate sentencing and state parole in the Progressive Era.

Debating the Pardon in Antebellum New York

Although New York had acquired its nickname, the Empire State, by the 1820s, the term carried different meanings to citizens who shared unequally in its profits. The state constitutional conventions of 1821 and 1846 advanced the scope of democracy. However, this chapter explains how constitutional reform also elevated the governor as the sole arbiter of discretionary justice. Despite a growing body of early social scientific research that showed mercy to be dependent on governors’ individual inclinations, the chief executive’s prerogative held firm, demonstrating its capacity to rectify injustice: first, in undoing a disastrous experiment with solitary punishment at Auburn State Prison in the 1820s, and second, in commuting the sentences of anti-rent protestors in the 1840s. Democracy and executive justice proved compatible.

The Crime Wave and the War against Discretionary Justice in the 1920s

The welcoming environment that New York had provided for Progressive penology turned hostile in the 1920s, when fear of a crime wave led to an all-out attack on discretionary justice. Scathing accounts of the governor’s pardon power and the Parole Board’s release of prisoners serving indeterminate sentences appeared in the press, and in 1926 draconian mandatory sentencing statutes, known as the Baumes laws, clipped the board’s capacity to parole repeat offenders, yet nothing short of constitutional change could remove the chief executive’s powers. This chapter traces how a spate of prison riots in 1929 helped prompt a compromise between the Republican legislature and Democratic governor Franklin D. Roosevelt. This resulted in a revamped board geared to operate with business efficiency. Thus, a measure of sentencing discretion was restored, while the governor retained sole authority to reprieve and commute death sentences.

Mercy and Diversity

This chapter shows how mercy regularly modified punishment, albeit in ways that reinforced racial and social hierarchies in the early national period. As the state abolished slavery by increments, the use of pardons to banish slaves who had been found guilty of crimes allowed their sale to persist. Incursions into Indian territory were accompanied by efforts to impose state criminal law, and the use of pardons for non-treaty and treaty Indians gutted Native American sovereignty. The establishment of Newgate and Auburn state prisons created a new category of New Yorker: the inmate, sentenced to unprecedented periods of incarceration, whose hope of an early release depended on the governor’s prerogative to pardon.

Epilogue Mercy, Parole, and the Failed Search for Penal Certainty

By the Depression, New York had earned a reputation for being the state with the most sophisticated parole system, run according to up-to-date standards of case management, although never up to the standards set by actuarial criminologists. Governors’ involvement in discretionary justice narrowed by the 1930s to the consideration of capital cases, a “lonely business,” according to one office holder. This chapter underlines that even after the state abolished the death penalty it never did away with the prerogative of mercy, an attribute of gubernatorial power as relevant today as it was during the Revolution.

Reformulating Discretion in the Mid-to Late Nineteenth Century

The idea that individual failings—moral, physical, and mental—must dictate each criminal’s penal treatment gained currency in penal circles by the late 1800s. Starting in the Elmira Reformatory, prison managers acquired discretion over the release of prisoners and the surveillance of inmates after release, and reports of resounding success earned admiration in international forums. This chapter focuses on the shortcomings that occurred once those ideals were put into practice. Prisoners complained of appraisals by an unaccountable internal review board, and they went public with charges that the Elmira regime was cruel and arbitrary. In response, chief executives used their power to remedy administrative abuse, yet the same governors continued to respond to political pressures and personal ambitions every time they granted or withheld mercy.

Pardon and Parole in the Empire State

Historians influenced by Foucault’s reading of the transition from sovereign justice to disciplinary society have misread parole as the successor to executive mercy. This book shows that parole’s history stretches back to the Revolutionary era, and that the power of life and death remained in the chief executive’s hands in the twentieth century. Despite the building of penitentiaries, the ascendance of Progressive penology, the establishment of reformatories and the rise of medical and psychiatric expertise, pardoning continued to play a pivotal role in the discretionary release of prisoners. The chapters, arranged chronologically, trace the entanglement of pardoning and parole as closely related forms of discretionary justice, which have played a central yet neglected part in the development of penal modernity.