Discretionary Justice: Pardon and Parole in New York from the Revolution to the Depression by Carolyn Strange (review)

During the last three decades, historians, sociologists, criminologists, and legal scholars have skillfully charted the intellectual and institutional development of the American criminal justice system. Often informed by Michel Foucault's work on punishment, this literature has emphasized shifting notions of criminal culpability and rehabilitation. More recently, however, scholars have begun to explore the gap between ideas and practices, extending their studies beyond the prescriptive literature and analyzing the actual administration of justice. Penological theory and even formal procedure notwithstanding, informal methods and customs often persisted, even as reformers and legislators embraced the latest, most progressive, and "scientific" intellectual currents. Long after criminal justice institutions "modernized," adopted social-scientific methods, and incorporated medical perspectives, police officers continued to employ rough justice, prosecutors routinely dismissed the lion's share of felony cases, and jurors rejected the rule of law and refused to convict most defendants. Carolyn Strange makes an important contribution to our understanding of the operation of legal institutions in Discretionary Justice: Pardon and Parole in New York from the Revolution to the Depression.

Impressive research in published and archival sources undergirds Strange's analysis. She consulted the papers of New York governors, the records of constitutional conventions, executive pardon registers, clemency and parole board case files, reform organization reports, and a wide array on New York newspapers. Moreover, her study relies on both quantitative and qualitative methods, and Strange effectively presents detailed case summaries to illustrate changing patterns of (and ideas about) pardon and parole. With such a broad range of sources and methods, she is able to trace both the intellectual history of discretionary justice and the actual trends in the granting of mercy and release from incarceration. It is in plumbing this disjuncture that Strange makes her most significant contribution.

Though a vestige of monarchy, the executive pardon somehow survived the American Revolution. But this "royal prerogative" (1) endured blistering assaults from the late eighteenth century through the early twentieth century. In constitutional conventions, in the popular press, and especially during gubernatorial elections, critics charged that vesting so much authority in one person was profoundly anti-democratic and subject to abuse and corruption. Yet, the pardoning authority of New York governors survived every challenge. Strange finds that pardons served myriad purposes. Often governors, responding to miscarriages of justice or hard-luck stories from prisoners, granted pardons as expressions of mercy and compassion. But executives also employed their pardoning authority for more pragmatic purposes, sometimes using this power in order to reduce prison overcrowding or to diffuse social tensions, such as the pardoning of prisoners convicted during the anti-rent crisis of the 1840s. Perhaps not surprisingly, the decision to pardon individuals typically reflected class-based gender and racial ideologies, and governors proved especially sympathetic toward petitioners with well-connected and influential supporters.

Parole, by contrast, developed in piecemeal fashion during the late nineteenth century. But it, too, faced intense criticism, as opponents of this form of discretionary justice often charged that parole coddled dangerous criminals and hence placed the law-abiding public at risk. With the rise of Progressive penology, criminologists, social workers, psychiatrists, and other experts increasingly argued that parole decisions should be made using "scientific" evidence. Furthermore, by the early twentieth century parole files included detailed evaluations from these experts. Strange's research, however, reveals that parole boards largely ignored this material and typically made decisions based on middle-class notions of respectability and self-discipline. Hence, despite the growing influence of science and the participation of trained professionals in the criminal justice system, parole board members "often acted on a 'hunch' about prisoner's likelihood of making good" (211). Thus, even as new ideas dominated the prescriptive literatures on criminal justice and deviance, discretionary justice continued to rest on vague, moralistic character assessments grounded in traditional notions of class, gender, and race. In the actual administration...