In 1884, Judge Henry Gildersleeve declared New York City a cesspool of theft and avarice. He blamed the deterioration of the city’s moral fiber on a “class of criminals”, a social entity consisting of New York’s most undesirable inhabitants. Gildersleeve was an authoritative witness of the newfound criminal element. As Justice of the Court of General Sessions, he sentenced thousands of men and women to prison each year. In carrying out this civic function, he and his colleagues exercised an enormous amount of discretionary power. Not only could each judge sentence a defendant however he saw fit, he could also call for an arrest without issuing a warrant and levy fines based on unfounded personal suspicions. These powers were stated explicitly in contemporary legislation, giving magistrates the legal precedent to selectively apprehend and penalize those individuals they deemed most dangerous to the public. By deciding whom to summon, indict, condemn, and imprison, the nineteenth century New York City judiciary played a decisive role in the construction of the criminal class.
The Politics of Appointment
Judges were subject to a multitude of personal and political influences which all had the potential to affect their decisions on the bench. In order to become a justice of the peace a candidate had to be nominated by the mayor and have their nomination approved by a majority of the city’s Common Council. In the latter half of the nineteenth century, the Council was dominated by members of Tammany Hall, the powerful Democratic club led by William “Boss” Tweed and his successor, John Kelly. The Tammany bosses used their political clout to secure judicial appointments for supporters. In return, the judges they appointed were especially lenient in punishing Tammany affiliates, with the expectation that the defendants would later repay the party with their votes. Frederick Smyth’s election to the office of Recorder in 1880 illustrates the power of “the machine strength of Tammany”. Smyth was a long-time party member and intimate friend of Tammany leader John Kelly. The New York Times reported that a Tammany majority had easily persuaded several anti-Tammany aldermen to cast their votes for Smyth.
The Power of the Judge
Smyth, Gildersleeve, and their colleagues on the bench shaped the fates of thousands of people each year. Their arbitrary mandate was legitimized by laws that placed suspected criminals at an enormous disadvantage. Defendants in criminal court could do little to shield themselves from punishment, even if they had not in fact committed a crime. Warrants of arrest could be issued on the suspicion that certain individuals might be prone to illegal activity, and these warrants “need not contain a formal adjudication that there is reason to fear the commission of the offense threatened”. The defendant would have no idea why they were being detained until they were brought to court. Once before the judge, “it [was] not open to the defendant to contradict the facts stated” – in other words, people accused of criminal intent were not allowed to defend themselves against the complainant’s accusations . This was justified because the complainants had acted on their own “apprehensions” that the law might be broken, and such intimate fears were almost impossible to disprove.
In cases when a crime had actually been committed, justices still maintained a great deal of discretionary power. The 1870 Cincinnati Declaration, written by reform-minded penologists from across the nation, laid out several solutions meant to improve the overcrowded and inefficient prisons that plagued New York and other urban areas. The Cincinnati delegates proposed relying more heavily on indeterminate sentences, which would allow convicts to be released early for good behavior, and to use probationary sentences and fines as alternatives to fixed-sentence prison terms. A study of sentencing practices from 1865-1880 shows that judges largely ignored these new options . A sample of 128 cases from the year 1880 includes only five probationary sentences and ten indeterminate sentences (representing 3.9% and 7.8% of total punishments, respectively). The only crimes punished by fines were perjury and lottery, felonies which one judge declared could only have been committed by “adroit” American criminals . Robbery, larceny, and assault, the crimes he attributed to foreigners, made up the majority of the case sample. If anything, New York judges saw the Cincinnati Declaration as an affirmation of their right to mete out punishment according to their own interpretation of the law.
As late as 1908, reformer Arthur Towne noted that in New York City’s courts, “[a]buses [were] conspicuous” and that “[t]he practice in different district courts … lacked uniformity”. On January 26, 1878 Justice Henry Gildersleeve sentenced a man to five years in state prison for stealing 75 cents. Later that day, he tried the case of a defendant who had stolen $104. This man was sent to the penitentiary for one year. Given this unpredictability, it is difficult to ascertain whether the newly branded criminals deserved the punishment they received, or whether their suffering was the unwarranted result of willful discrimination on the part of the city’s judges. The essays to follow will attempt to demonstrate the extent to which two of these judges differed in the performance of their duties, and what, if anything, their sentencing practices can tell us about the development of a recognizable criminal class.
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 Barbour, Oliver L. 1811-1889. A Treatise On the Criminal Law And Criminal Courts of the State of New York: And Upon the Jurisdiction, Duty And Authority of Justices of the Peace And Other Magistrates, And On the Power And Duty of Sheriffs, Constables, Peace Officers, Police Officers, &c., In Criminal Cases. 3d ed., Albany: Banks & Brothers, 1883. Web. 3 October 2015.
 Gilfoyle, Timothy J. A Pickpocket’s Tale. 1st ed. New York: W.W. Norton & Company, 2007. Print.
 Kuntz, William Francis. Criminal Sentencing in Three Nineteenth Century Cities. Social History of Punishment in New York, Boston and Philadelphia 1830-1880. New York & London: Garland Publishing, Inc., 1988.
 “The Court of General Sessions, 1683-1847 In New York City, 1683-1962”. (NYC Courts, n.d.) http://www.nycourts.gov/history/legal-history-new-york/other-courts/court-of-general-sessions.html
 “Records Relating to Criminal Trials, Appeals, and Pardons” (New York State Archives, n.d) http://www.archives.nysed.gov/common/archives/files/res_topics_legal_trials.pdf
 The New York Herald. New York: The New York Herald, January 26, 1878. 8.
 Towne, Arthur W. “Criminal Courts of New York City: Proposed Reforms of”
 The American Political Science Review, Vol. 4, No. 2 (May, 1910): 213-216 American Political Science Association. JSTOR. Web. 3 October 2015.
 Vos, Frank. “Tammany Hall”. The Encyclopedia of New York City. (CUNY, n.d.) http://www.virtualny.cuny.edu/EncyNYC/tammany_hall.html