Abstract
The book covers a century and a half of New York State’s struggle with executive clemency, examined as one facet of discretionary justice. Faithful to the historical reality, it focuses on pardon. In contrast to most states, New York long clung to the “one-man pardon” approach that reserves to the governor expansive discretionary authority. It featured ongoing challenges from the beginning. Carolyn Strange explores the conflict among elites, with insurgents repeatedly foiled in attempts to limit gubernatorial discretion in pardoning. She delivers a meticulous study that reads like an epic story of an ancient war.
The introduction frames Pardon and Parole in the Empire State as rooted in the nation’s and the state’s revolutionary origins. The “dual aspiration” of maintaining rule of law and related British principles while dislodging monarchical (executive) dominance yielded a dialectical conflict that would continue from the late- 18th century into the twentieth. From the state’s initial constitution through each subsequent one, the people’s new electoral power remained subject to executive discretion lodged in the governor’s office. The mercy associated with the pardon power of the governor would joust with the liberty voice of the citizenry throughout the first century of nationhood and statehood. Then, the social invention of parole would complicate matters, raising additional challenges to executive domination of pardon.
Chapter 1, “Governing Mercy in the Emerging Republic,” explores the transition from colony to nation. With independence came a new form of ordered liberty, but one much grounded in English law. Republican justice needed to work out the challenge of discretion, now weaned from “the royal prerogative of mercy,” still an ongoing feature of executive pardon. While other new states also accorded their governor the power to pardon, New York stood alone in linking that “authority with direct popular election and a 3-year term of office.” Strange asserts that New York’s paved the way for “the federal Constitution’s even greater reliance on executive discretion.” The state’s early experience in struggling to find new modes of governance also forecast another recurring theme in criminal justice policy and practice as pardoning moderated harsh mandatory sentencing.
Into the early decades of the 19th century, New York deployed executive pardon in its struggle for justice (Chapter 2, “Mercy and Diversity: The Pardon Power in the Early National Period”). Immense sociopolitical forces, including slavery, genocide, classical reform of punishment, and emergence of penitentiaries formed a context that called for pardon while coopting and even corrupting it. A graphic example emerges in the use of pardon of fugitive slaves to facilitate their transport out of state by their owners. Pardon also came into ineffectual and even unconstitutional play in cases dealing with struggles over tribal sovereignty. Strange presents a harrowing story of “mercy’s reinforcement of racial inequality” in tragic ways, played out differentially in the oppression of African Americans and Native Americans.
New York’s struggle for discretionary justice continued into the 1840s as constitutional revisions grappled with the dialectic of severity and mercy posted against the backdrop of massive structural inequalities and contested sovereignty claims (Chapter 3, “Debating the Pardon in Antebellum New York”). Despite democratic governance challenges to centralization of pardoning, the state’s aberrant reliance on executive discretion remained resolute. As responses to the anti-rent insurrection showed, pardon continued as a way for the state to manage entrenched, popular grievances.
Debate over executive pardon continued unresolved into the middle decades of the 19th century. Now a new form of discretionary release began to show signs of emerging as it would eventually become a more significant component of modern criminal justice than the pardon: parole (Chapter 4, “The Pardon and the Progenesis of Parole in the Mid-Nineteenth Century”). The growth of prisons and prisoners, with the accompanying ills of coerced confinement and of trying to change persons and manage masses, together with the emergence and strident advocacy efforts of the Prison Association of New York, paved the way.
In the second half of the 19th century, pardon’s place in the politics of punishment changed for reasons beyond the equal justice criticism (Chapter 5, “Reformulating Discretion in the Mid- to Late-Nineteenth Century”). Forces included burgeoning and diversification of New York’s population, new understandings of mental capacity, and the state’s first reformatory for adults. Categorical biases and idiosyncrasies characterized a pardon world in which “New York’s chief executive assumed a role more akin to an early modern monarch than a bureaucrat in a modern government office.”
Yet this situation faced a major transformation by the turn of the century (Chapter 6, “The Entanglement of Pardoning and Parole in the Progressive Era”). While in the modern era, we take parole for granted as a significant institution in criminal justice process, this story reminds us of its recent emergence, impossible until prisons developed. After prisons and then parole (and probation) appeared and grew, they eventually superseded pardon in discretionary justice discourse.
The story concludes with the Great Depression (Chapter 7, “The Crime Wave and the War Against Discretionary Justice in the 1920s”). The crime wave of the Prohibition Era, with attendant fear spurred again by sensationalized and biased newspaper accounts, generated further movement against discretionary justice, now including parole, indeterminate sentencing, and the rehabilitative ideal, as well as pardon.
Eventually, the war against discretionary justice amalgamated pardoning and parole. Again, we observe escalation of penalties and expansive generalization that foreshadows three strikes and out and a host of related harsh, unjust, ineffective, and misleading penal measures decades later. The fiscal distress of the Depression limited further growth of imprisonment. The epilogue (“Mercy, Parole, and the Failed Search for Penal Certainty”) concludes that “popular punitiveness produces injustice no less today than it did in the eighteenth and nineteenth centuries.”
In sum, Carolyn Strange tells a formidable tale of the vagaries and dialectics of discretionary justice, full of exquisite details grounding the analysis yet complemented by clear identification and compelling explanation of the major themes revealed. Hence, criminal justice scholars and students will find here, told from masterful historical perspective, the explication of familiar dynamics about the challenges and perversities of discretionary justice. That alone makes the work timely. Moreover, the serendipity of current events in 2018 makes it even more so, as the problem of “one-man power” of centralized, executive pardoning becomes even more relevant in the current presidential context. This landmark historical case study of centralized discretionary justice should augment graduate seminars seeking to benefit from a broader palette for serious criminal justice policy analysis.