Pardon and Parole in Prohibition-Era New York: Discretionary Justice in the Administrative State

Historians of early-modern England and British colonies have productively applied Douglas Hays germinal study of mercy. In contrast, historians of the United States have overlooked the utility of the conceptual tools Hay provided to prize open the mitigation of punishment across time and place. In the decade that followed the First World War, disputes over the proper role of mercy and administrative discretion were as heated as they were in Hanoverian England. In Jazz Age New York, fears of gangsterism and concern over the apparent laxity of parole regulations put the proponents of Progressive penology on the defensive. This article asks what drove opinion against discretionary justice in the form of the pardon and parole, and traces the conditions that gave rise to judgments that discretionary justice was too frequent and injudicious. A new vision of order, fixated on penal certainty, came into sharp focus over the 1920s, when mandatory sentencing statutes were introduced. Yet gubernatorial clemency survived that crisis, and in 1930 parole was professionalized and placed under stricter management. This article confirms that modernity proved no match for discretionary justice. In its personal and administrative forms, discretion penetrates penal justice, despite the earnest drive to certainty and the persistent demands to terrorize criminals.