This section explains how the New York City judiciary shaped the definition of the criminal class in the nineteenth century. Judges meted out punishment according to a myriad of personal, political, social, racial, and cultural biases. This section takes a close look at two judges in particular and attempts to discern a few of these prejudices and how the may (or may not) have affected the development of a “criminal type”.
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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.
“Tradition, education, physical surroundings, race, class and professional solidarity, and economic, political, and social influences of all sorts and degrees make up a complex environment in which men endeavor to reach certain results by means of legal machinery. No discussion simply in terms of men or of legal and political machinery, or both, ignoring this complex environment, will serve”. 
-Dean Pound, nineteenth century legal scholar
In order to understand how the members of the New York City judiciary contributed to the definition of the criminal class, it is important to know how they came to occupy their lofty position in the criminal justice system. Each of these men brought with him a wealth of past experience and a host of prejudices, both conscious and subconscious. In an effort to take these factors into account and deepen the analysis of each judge's particular biases, brief biographies of Judge Gildersleeve and Recorder Smyth are presented below. The biographies foreground the subsequent discussion of the judges' role in shaping the city's perception of the criminal type.Continue
Defining the Criminal Class: A Case Study of Sentences Delivered by Judge Henry Gildersleeve and Recorder Frederick Smyth
Did New York City judges have a hand in constructing the criminal class? Answering this question requires a careful examination of who the judges were, which political, social, or personal biases may have influenced their decisions, and who may have borne the brunt of their discrimination. A comparison of sentencing data for Judge Henry Gildersleeve and Recorder Frederick Smyth, both of whom tried thousands of criminal cases in the latter half of the nineteenth century, yields two useful observations: first, the sentences the judges delivered for the same crimes varied considerably on a case-by-case basis, indicating that the defendants’ physical appearance, social class, ethnicity, political affiliation, age, and criminal record may all have affected the punishment they received.  Second, the evidence suggests that Judge Gildersleeve tended to punish thieves and recidivists with particular severity. He repeatedly imprisoned robbers, burglars, and pickpockets for the same non-violent offenses. Their removal from society relegated these men and women to the rank and file of the state's prison system. In his capacity as judge, Gildersleeve actively shaped the definition of New York City's criminal class.Continue