Prison Pardons: A Necessity, A Tool, A Scandal

The pardon system in nineteenth century New York existed since the colony’s establishment. To pardon a criminal, in the eyes of the Supreme Court, was to erase not only the punishment but also the guilt of the crime.[1] In practice, the pardon was meant to protect the innocent from errors in criminal procedure or allow for the termination of a sentence if new evidence showed innocence. Until 1915, the governor of New York State was given nearly absolute power in the pardoning of criminals.[2] This gave him incredible political power, but also exposed the system to corruption. Pardoning power was not used as it was intended, to pardon the innocent of the sentence. Pardoning power in nineteenth century New York City was used to control the prison populations, to incentivize good behavior in the prisons, and as a scandalous form of corruption to achieve wealth and influence.

The New York constitution, along with those of most US states, left the power to pardon criminals almost exclusively in the hands of the governor.[3] While many critics believed the pardoning power should not rest exclusively with the executive, the power of clemency nonetheless stuck as a tradition passed on from the monarchy.[4] Not until the Statutes of 1915 was this reformed with the creation of an Advisory Board, the purpose of which was to diminish the exposure of individual governors to “the pressure of influences and importune applications.”[5] The power of the Governor to pardon was laid out in 1777, but in 1882 the power was expanded further by allowing the governor to pardon murderers.[6] The only crimes exempt from pardon were treason and impeachment. The pardoning power became a vetoing power against both the legislature and the courts. The New York governor wielded perhaps too strong of a check on the judicial branch, being able to pardon criminals already sentenced by the courts. From some points of view, it should be left to the courts to determine sentences, and to others, the legislature to lay out the sentencing guidelines. By establishing executive pardoning power, the governor became a major power figure in criminal law.

Theoretically the pardon was meant to absolve the criminal of his crime and of his punishment. Only when faced with innocence should a criminal be released, but this was hardly the only time when a pardon was given. The consensus of American governors was generally that there should be the use of executive clemency for when the sentence awarded was too harsh.[7] Governors in the mid-nineteenth century used pardons to soften the harsh sentences given by the New York courts and prevent civic anger towards the state. While the New York courts gave some of the longer terms in the country, the actual average terms served by the convicts were relatively low.[8] This practice stripped the court of its power to sentence according to the statutes, where sometimes the set sentence was too harsh but there was no alternative.[9] The intermediate sentence, where the courts and juries could define the sentence, was an attempt to remedy this problem, so that the punishment would fit the crime and actually be served rather than pardoned.

The growing penitentiary system in nineteenth century New York faced a perpetual problem of overcrowding. In the 1820’s, Newgate Prison was filled to twice its capacity and was known for mass pardons of sometimes fifty prisoners in a single day.[10] Auburn and Sing Sing prisons were simply not large enough to accommodate the large number of criminals sentenced by the New York courts, especially with the population boom that occurred in New York due to immigration and urbanization. Between 1860 and 1880, New York’s population rose from 806,000 to 1,206,000, passing a population of one million for the first time.[11] Contributing to the problem of overcrowding were the long sentences given by the New York courts, which meant that the inmates who entered the prison were not expected to leave for many years.[12] In the view of many governors, pardoning was not only a procedure for pardoning the innocent, it was necessary due to the overcrowding of the penitentiaries, which were already large facilities. Governor David Tompkins (1807-1817) was the first to pardon over one hundred inmates annually, but he was not the last.[13]

In the late nineteenth century, because of overcrowding, most inmates didn’t serve full terms. For an inmate sentenced to a term of more than three years, said inmate had a one in three chance of being released early.[14] For inmates sentenced to life terms, their chance of being released was doubled.[15] Statistically, convicts with sentences longer than 3 years were more likely to be pardoned than a convict only serving 3 years.[16] Those with short sentences would have to wait out their sentence while those serving long terms or life sentences would be pardoned to make more room in the prison. With overcrowding it was simply necessary to dismiss inmates before they served their full terms because there were too many of them to house in the facilities.

BL. 11
A prisoner is released. [17]
After the necessity to reduce overcrowding, pardons and parole were also used as tools to maintain order. The option of a pardon was meant to incentivize good behavior in the prisons, and also to allow the rehabilitation of the criminal when he returned to society. However, the use of pardons from prison became corrupted by the somewhat arbitrary procedure of pardoning. The parole system allowed the superintendent and the prison commissioners the right to dismiss prisoners.[18] Where the view of the court on pardons was that both the burden of guilt and punishment were removed, parole only relieved the convict of the punishment, while still holding them guilty for their crime. Ideally, parole was given based on graded evaluation and was meant to reward those who behaved well or complied with prison order. This was a broken system, however, and some thought that no reform of the criminal could begin while “the convict occupies his mind with hopes of a pardon or with schemes how to obtain it.”[19]

However, the prison commissioners and superintendents could easily be bought out and have the inmates released based on wealth or influential friends. This was a problem that did not relent as long as the power to pardon was in the hands of a governor exposed to political influence.[20] In the early nineteenth century, penologist Gershom Powers framed the truth of pardons by describing how it was “the rich, the intelligent, the powerful villains to whom the boon of mercy is generally extended.”[21] Dorothea Dix, another reformist, agreed, stating that pardons were determined by class, wealth, and politics, not by need.[22] Kuntz says that not only the rich and influential were pardoned, but that Powers still captured the essence of the inequality that existed.[23]

Reformist Dorothea Dix. [24]
Reformist Dorothea Dix. [24]
In the words of Dr. Frederick Howard Wines, the “length of the prisoner’s term of confinement is largely the result of prejudice, caprice or accident.”[25] A convict who was “connected with influential people” did not even need to resort to bribery in exchange for a pardon, while “an obscure and friendless prisoner” stood little chance.[26]

A mockery of the pardon system.[27]
A mockery of the pardon system. [27]
One of the major problems with the excess of pardons was that it constantly undermined the effectiveness of punishment. Early termination of sentence may have incentivized good behavior for the inmates, but it also weakened the threat of incarceration as deterrence by giving criminals faith that their sentence would be limited.[28] By allowing guilty criminals back into society before their sentence was served, pardons not only undermined the courts, they undermined the penitentiary which was built to house inmates. While the overcrowding of prisons made pardons necessary, and the use of pardons and parole as incentive made the prisons more orderly, the use of pardons when the criminal was still guilty remained a scandalous practice.


[1] Christen Jensen, “the Pardoning Power in the American States: A Dissertation Submitted to the Faculty of the Graduate School of Arts and Literature in Candidacy for the Degree of Doctor of Philosophy”, (Chicago: University of Chicago Press, 1922), 110.

[2] Ibid, 23.

[3] Ibid, 13.

[4] Francis Lieber, Reflections on the changes which may seem necessary to the present constitution of the State of New York (New York: New York Union Club, 1867). 9.

[5] Jensen, “the Pardoning Power”, 13.

[6] Francis W. Kuntz, Criminal Sentencing in Three Nineteenth Century Cities, (New York and London: Garland Publishing, Inc, 1988), 148.

[7] J.S. Appel, The Pardoning Power (Denver : Smith-Brooks Printing Co., 1894) 10-11.

[8] Kuntz, Criminal Sentencing, 154.

[9] Appel, The Pardoning Power, 11.

[10] Edwin G. Burrows and Mike Wallace, Gotham: a History of New York City to 1898. (New York: Oxford University Press, 2000), 505.

[11]  Kuntz Criminal Sentencing, 258.

[12] Ibid, 154.

[13] Ibid, 149.

[14] Ibid, 177.

[15] Ibid.

[16] Lieber, “Reflections”, 10.


[18] Appel, The Pardoning Power, 25.

[19] Lieber, “Reflections”, 10.

[20] Ibid.

[21] Kuntz Criminal Sentencing 151.

[22] Ibid.

[23] Ibid, 152.


[25] Appel, The Pardoning Power, 9.

[26] Lieber, “Reflections”, 10.


[28] Ibid, 11.