A new book about parole and pardoning in New York state’s criminal justice system highlights the difficulties state governors faced while deciding whether to show mercy to criminals.
Discretionary Justice (New York University Press 2016) by Dr Carolyn Strange of the ANU School of History, examines the unique power governors hold; a relic of the British royalty that they retained after the American Revolution.
“In criminal justice literature, the tendency is not to look at decision-makers as human beings with feelings themselves,” Dr Strange says.
“Most governors wrote about the pardon power as the most difficult one they had to handle.
“One of them, in the 1950s, summed it up quite nicely, saying it was a ‘lonely business’. Governors could consult with others, but it was essentially up to them.”
Dr Strange’s colleague, Dr Douglas Craig, calls the book a “richly researched and elegantly written exploration” of procedures and institutions that stood between a convicted person and the criminal law in New York between 1776 and 1930.
“Carolyn explores the dawning over time of the original royal, and then the gubernatorial prerogative of mercy, with modern ideas and institutions relating to notions of criminal responsibility and punishment.”
At its peak in the 1800s, around 200 people per year were pardoned – mostly poor and voiceless people who lacked the social and political power that kept wealthy white men out of prison, Dr Strange argues.
“There are all kinds of reasons why people were released from prison early, and one of the main reasons in the early 19th century was to relieve prison overcrowding,” she says.
“This is one of the reasons pardoning came under a lot of criticism, that it was indiscriminate, that it wasn’t judicious or merit-based, or for the overturning of wrongful convictions.”
Dr Strange first planned to write a book about a pardon in 1873 of a man who killed his father who the son claimed had long abused the prominent New York family.
But in 2008, New York state released its archive of more than 8,000 cases of people who had appealed or petitioned for clemency and were pardoned.
Dr Strange sampled about 800 files and first thought she’d write a book about those, but they only dated from 1859.
“Then I decided I needed to look right back to the origins of pardoning and parole as the state came into being.
“That’s really the main question that drives the book – why in a republic, which had rejected all forms of royal rule, was there something that has its vestiges in the royal prerogative of pardon retained?”
Parole, and administrative discretion, slowly and haltingly became the most common means for prisoners to shorten their sentences. Yet, Strange shows how personal discretion, expressed in the stroke of the governor’s pen, never disappeared.
In New York it persists today, a fact that makes this book pertinent in our own time.