Crime and Punishment in American History - Lawrence M. Friedman [104]
Parole was a way to correct for inequities in sentencing. More important, it was still another way to sift worthy from unworthy prisoners, and give the worthy ones a chance to prove themselves.65 Parole had some very discretionary features. The rules and regulations in Ohio limited parole to prisoners who had been “in the first grade continuously for a period of at least four months.” A parolee had to have a job waiting for him. He could be put back in prison “for any reason that shall be satisfactory to the board of managers, and at their sole discretion.” No lawyer (or anyone else, for that matter) was allowed to present “oral argument” at parole hearings; the prisoner could submit only written documents. 66
Parole took some political heat off the governor, however, by reducing the (political) demand for clemency. Governors had previously held (and continued to hold) the power to pardon. In some states, governors used the power lavishly, so that a high percentage of prisoners went free early through this route. DeWitt Clinton, in his eight years as governor of New York (1817—22 and 1825—28), pardoned 2,289 prisoners.67
The pardon was a matter of grace and favor. No rules bound the governor; there were no guidelines. The governor might, and sometimes did, respond to appeals to his sympathy; or to whims; or to political pressures or cronyism. All in all, the process disfavored the “poor and friendless,” or the “miserable foreigner.” The executive ear never heard their “groans”; he pardoned, instead, “the rich, the intelligent, the powerful villains.” These were the men who had friends, who employed “agents,” and who made use of their “property, talents, and influence” to pry open the prison door.68 Parole, on the other hand, was, in theory, controlled by professionals, using rational criteria. No doubt in practice it, too, worked against the poor and friendless, but more subtly.
Another correctional reform was probation. A convicted criminal who gets probation is released conditionally before he ever sets foot in a prison or jail. The pioneer in the history of probation was a Boston boot-maker named John Augustus. In August 1841, Augustus noted and took pity on a poor drunk who was desperate to avoid the House of Correction and swore he would go on the wagon. Augustus gave him that chance by posting bail. Augustus then began to act as a “private angel and guardian of men convicted of crime.” Before he died, in 1859, he went bail for about two thousand convicts.69 By that time, he was not alone: others had joined in the campaign. In 1878, Massachusetts formalized the system and provided for a paid probation officer in the criminal courts; in 1891, another statute authorized a statewide system. Several other states followed suit in the late nineteenth and early twentieth centuries. California, for example, passed its own version in 1903.70
Juvenile Justice
Young offenders were a special problem for the criminal justice system. At any rate, they were defined as such. It began to strike many people as barbarous to lock juveniles up in the same prisons as “hardened criminals”; or to lock them up at all. A prison was bound to be nothing but a school for learning vice.
To be sure, the law did not consider very young children capable of committing crime. There was a “conclusive” presumption that a child under seven could not have a criminal mind, and could not be put on trial. Between seven and fourteen,