Locked Down

Abstract

Locked Down Pippa Holloway (bio) Carolyn Strange. Discretionary Justice: Pardon and Parole in New York from the Revolution to the Depression. New York: New York University Press, 2016. x + 323 pp. Halftones, notes, selected bibliography, index. $55.00. Kelly Lytle Hernández. City of Inmates: Conquest, Rebellion, and the Rise of Human Caging in Los Angeles, 1771–1965. Chapel Hill: University of North Carolina Press, 2017. 301 pp. Illustrations, maps, tables, notes, bibliography, index. $28.00. At first glance, Discretionary Justice and City of Inmates appear to take similar approaches and might, considered together, suggest a framework for understanding the long history of incarceration in America. Both are local studies that cover the eighteenth through twentieth centuries. Both make arguments about the long legacies of old practices. With the former set in New York state and the latter in Los Angeles, California, they could offer fruitful contrasts between the east and west coasts and highlight histories of locations that still today are critical points on the carceral landscape. Upon closer inspection, though, the two books could not be more different. Discretionary Justice looks at incarceration from the perspective of who gets released and why. Tracing the history of pardons and parole, two paths by which criminal punishment might be modified or rescinded, this is a detailed and impressive examination the gubernatorial policies, criminal justice procedure, and legislative actions of the administrative state. In contrast, City of Inmates foregrounds ideas about incarceration more than the management of public policy. To understand how and why Los Angeles built a massive system of incarceration, Hernández turns to the framework of settler colonialism, finding the origins of mass incarceration in the earliest attempts to eradicate native sovereignty. Discretionary Justice looks at the politics and policy behind clemency in New York, identifying changes but also locating common threads between the Revolutionary era and the 1930s. Pardons find their origins in an ancient practice, the ability of a sovereign to grant mercy to any subject. Despite their undemocratic origins, pardons were enshrined in the first state constitutions, [End Page 413] such as the one in New York, which gave the governor the power to grant mercy in order to curtail criminal punishment. The odd persistence of this "ancient prerogative power of kings" in the new American model of republican government was observed by many, including Alexis de Tocqueville on the occasion of his 1831 visit to the United States (p. 210). Strange notes that pardons faced opposition on several fronts in New York. Two constitutional conventions, in 1821 and 1846, debated the executive pardon but failed to limit it, also rejecting efforts to assign the power to pardon to the legislature rather than the executive. Later in the century, social scientists and modern reformers also challenged the pardon power, saying that this old, irrational form of mercy contradicted both democracy and modern understandings of justice. Critiquing pardons as anti-modern and irrational should have found broad support in New York. Policymakers there were heralded as leaders in prison reform, dating back to the establishment of Auburn State Prison in 1819, a model institution that was imitated across the world. New York also pioneered indeterminate sentencing and promoted the idea of punishment as a means to reform. New York was also among the first states to embrace a new form of discretionary justice and establish a system of parole. Whereas pardons simply terminate punishment, parole is a contingent termination, usually resulting from good behavior. The idea was simple. Good behavior in prison was indicative of a reformed character and would lead to early release. Further proof of reform would come if the individual continued to avoid criminal behavior. Re-offending demonstrated that the reform had failed and would result in re-incarceration. New York established a parole board, made up of experts who would interview applicants and consider evidence from prison officials in determining whether to grant parole. Strange points out what might appear to many as a paradox. As New York established some of the most innovative prison policies in the nation, including parole, it kept the old tradition of pardons. From the perspective of those who sought to bring scientific processes to prisons, whereby...