American Legal History
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The Origins of Parole in New York


The early history of parole in the United States is inextricably intertwined with the history of parole and its antecedents in New York, which as early as 1817 adopted a form of commutation known as “good time,” allowing inmates to obtain early release through good behavior, and in 1824 established indeterminate sentencing for juveniles. Moreover, although the word “parole” had been circulating in the United States at least since 1846, when the Boston physician Dr. S. G. Howe used it in a letter to the New York Prison Association, New York's statutory introduction of parole in 1877 represented the first official use in the United States of both the term and its practice.(1)

A British-Australian Provenance

The origins of parole in New York lie in the British practice of transportation, a form of punishment whereby convicts were removed from the United Kingdom and shipped to colonial settlements, most notably Australia, where they essentially became indentured servants whose labor could be sold or assigned and who could be released from their servitude only upon the expiration of their court-imposed sentences, and whose bad behavior could result in extended sentences.(2) As early as 1770, under what became known as the “ticket of leave” system, the governor of New South Wales, then a penal colony, could grant conditional pardons to convicts; in 1811, the colonial government began requiring prisoners to serve specific periods of time before they could receive such pardons.(3)

In 1837, a group disfavoring transportation approached British official Alexander Maconochie, who in 1818 had written about “penal science” in New South Wales, to evaluate the policy. While generally favoring transportation,(4) Maconochie proposed that the rarely used(5) ticket of leave system determine eligibility for release based on work ethic and good conduct, not by any particular time served.(6)

In 1840, Maconochie became superintendent of the penal settlement at Norfolk Island and reformed its ticket of leave system, instituting what many consider the world's first parole system.(7) Prisoners served indeterminate sentences from which they could be released early if they showed evidence of rehabilitation through participation in a graded classification system based on a unit of exchange called a mark.(8) Prisoners earned marks through good behavior, lost them through bad behavior,(9) and could spend them on passage to higher classification statuses ultimately conveying freedom.(10)

In 1844, Maconochie returned to England to campaign for prison reform, and in 1854, upon becoming director of the Irish prison system, Sir Walter Crofton, who had closely followed Maconochie, instituted a parole system based on marks.(11) in which continued release was contingent upon adhering to explicit conditions whose violations could entail re-imprisonment.(12)

Penal Reform in America

American penal reformers began to take notice of developments in the United Kingdom. In 1864, Dr. Enoch C. Wines, secretary of the New York Prison Association, published a pamphlet entitled “Progress of Prison Reform in England," in which he described the work of Maconochie and Crofton. Additionally, in 1866, Gaylord B. Hubbell, then warden of Sing Sing Prison, visited Ireland in order to investigate Crofton's system, which, in a subsequent report to the New York Prison Association, he recommended be introduced to New York. Consequently, in 1867, the Prison Association appointed a committee to prepare a plan for revision of New York's prison system.(13)

The resulting report called for the creation of “reformatories,” institutions specifically designed to “teach and train the prisoner in such a manner that, on his discharge, he may be able to resist temptation and inclined to lead an upright, worthy life.” Subsequently, in 1869, New York governor John T. Hoffman endorsed the report, and the legislature authorized the creation of what would become, on its completion in May 1876, the New York State Reformatory at Elmira – the world's first reformatory prison for “youthful offenders,” first-time male offenders between the ages of 16 and 30.(14)

In preparing their report, the Prison Association's committee visited prisons throughout the United States and Canada, including the Detroit House of Correction, then under the supervision of Zephulon R. Brockway. Brockway would become the seminal figure in the introduction of parole to New York and the United States. Born in 1827 in Lyme, Connecticut, Brockway began his penological career in 1848 as an assistant warden at the Connecticut State Prison at Wethersfield. By 1954, Brockway had become superintendent of the Monroe Penitentiary at Rochester, where he began to embrace rehabilitation as a penal goal, and in 1861 Brockway moved to the Detroit, where he allowed prisoners to take jobs and supervised them upon their release. Brockway's chief innovation, though, was his attempt to establish the country's first indeterminate sentencing system. In 1869, Brockway drafted a law, passed by the Michigan legislature but overturned by the state Supreme Court, that would allow for the conditional and discretionary release of “common prostitutes.”(15)

In 1870, American penal reformers keenly aware of European developments – including Wines, Brockway, and then-Ohio governor and future United States president Rutherford B. Hayes – gathered in Cincinnati under the banner of the National Congress on Penitentiary and Reformatory Discipline.(16) Speakers included Crofton, who advocated for his Irish system, and Brockway, who helped author the Declaration of Principles adopted by the Congress.(17) The Declaration, grounded on the assumption that “criminals, especially of the younger class, are capable of reformation by the application of right methods and processes,”, incorporated references to Crofton's Irish system; endorsed systems of marks and graded classifications, indeterminate sentences, and early release via parole; and cited favorably New York's earlier legislation on “good time” commutation and indeterminate sentences for juveniles.

Parole at Elmira

New York would pay special attention to the Declaration of Principles in creating its juvenile reformatory at Elmira, of which the state hired Brockway as superintendent. The 1876 law officially establishing Elmira called for five “respectable citizens” to serve as its board of managers. While the 1876 act did not call for indeterminate sentencing or parole,(18) 1877 legislation drafted by Brockway required that all Elmira inmates serve indefinite sentences: while prisoners were technically sentenced to six years, they could be paroled any time at the discretion of the Board of Managers.(19) The 1877 law contained as well the first statutory use in the United States of the word “parole,” used in place of “conditional discharge.”(20)

Although allowed, a system of parole would not be instituted at Elmira until 1882, when Brockway established the factors to be determined in assessing each inmate’s suitability for early release: offense, offense history, institutional behavior, work record, academic progress, attitude, future plans, and – most importantly – perceived threat of recidivism. Inmates were required to secure employment and a place to live before their release on parole.(21) After release, parolees were required to follow four rules designed to make certain they became “good workers” and “good citizens.” First, they had to remain employed for six months. Second, they had to submit a monthly report, signed by their employer, showing their income and expenses and providing “a general statement” of their lives and “surroundings.” Third, they could not quit or change jobs. Fourth, they were required to “conduct [themselves] with honesty, sobriety, and decency; [avoid] evil or low associations; and . . . abstain from intoxicating drinks.” Parolees who violated any of these conditions had their parole revoked.(22)

Brockway's Legacy

Brockway's parole system was widely seen as successful – not least due to his affinity for public relations(23) – and, in 1900, the United States government included in reports submitted to the International Prison Commission an essay by Brockway on his Elmira system. There, Brockway summed up his commitment to penal reform rather than retribution:

“It can not be denied that there is in the economy of moral government of the Supreme Ruler that which is retributive – the equitable balancing of painful consequences to sinful acts-a beneficent and truly remedial agency; but the function is super human. No sanctions of human laws, no court or prison system, no man or association of men ever can properly attempt to administer retribution to criminals for their crimes. It is impossible to justly administer it, and it is also abundantly in evidence that the futile attempts to minister just punishments for crimes, under the laws and practice, constitutes a serious obstruction to the only sure public protection from the criminal – namely, his reformation.”

However, Brockway's success was tempered by accusations of corruption and abuse. A Board of Charities inquiry conducted in 1893 and 1894 found that Elmira was a brutal and ineffective prison, allegations which would haunt the rest of Brockway's tenure. In 1900, the same year Brockway extolled the virtues of his reformatory system to the International Prison Commission, Governor Theodore Roosevelt replaced three Elmira managers who supported Brockway, shortly after which the other two managers resigned. Brockway himself resigned soon thereafter. In 1901, Elmira's new board of managers, echoing the Board of Charities inquiry, published a critique of the reformatory in its annual report, citing its poor physical condition, inadequate medical care, administrative corruption, and brutal disciplinary techniques including flogging.(24) Nevertheless, Brockway's reforms had proved popular, and indeterminate sentencing spread widely through the US in the wake of his tenure at Elmira, and, in 1907, New York became the first state to adopt all the components of a modern parole system: indeterminate sentencing, a system for granting release, post-release supervision, and specific criteria for parole revocation.(25)



1 : Gray Cavender, Parole: A Critical Analysis. Port Washington: Kennikat Press, 1982, p. 15.

2 : Cavender, p. 6.

3 : Paul F. Cromwell and George G. Killinger, Community-Based Corrections: Probation, Parole, and Intermediate Sanctions. Minneapolis: West Publishing Company, 1994, p. 196.

4 , 8 : Cavender, p. 13.

5 : Neil P. Cohen and James J. Gobert, The Law of Probation and Parole. Colorado Springs: Shepard’s Hill, 1983, p. 14.

6 : Robert D. Hanser, Community Corrections. Los Angeles: Sage, 2010, p. 12.

7 : Joan Petersilia, When Prisoners Come Home: Parole and Prisoner Reentry. Oxford: Oxford University Press, 2003, p. 56.

9 : Petersilia, p. 56.

10 : Cavender, p. 14.

11 : Petersilia, p. 57.

12 : Hanser, p. 14.

13 : Edward Lindsey, "Historical Sketch of the Indeterminate Sentence and Parole System," Journal of the American Institute of Criminal Law & Criminology, 15 May 1925 to February 1926, pp. 15-16.

14 : Alexander W. Pisciotta, Benevolent Repression: Social Control and the American Reformatory-Prison Movement. New York: New York University Press, 1994, p. 1.

15 : James J. Beha, "Redemption to Reform: The Intellectual Origins of the Prison Reform Movement," New York University Annual Survey of American Law, vol. 3, 773, 2007-2008, p. 786-790.

16 : Cavender, p. 16.

17 : Pisciotta, pp. 30-31.

18 : Pisciotta, p. 14.

19 : Citizens’ Inquiry on Parole and Criminal Justice, Inc., Report on New York Parole. March 5, 1974, p. 4.

20 : Irving I. Goldsmith, "State Board of Parole: Duties of New Agency Outlined and History Traced," New York State Bar Association Bulletin, vol. 3, issue 27, 1931, p. 27.

21 : Pisciotta, pp. 19-22.

22 : New York, Senate Documents (1881), vol. 1, no. 21, New York State Reformatory, Fifth AR (1880), p. 42, cited in Pisciotta, p. 15.

23 : Pisciotta, p. 22.

24 : Pisciotta, pp. 105-106.

25 : Petersilia, p. 58.

-- GloverWright

Citation could use cleaning up. Where the Web will work, you should use it, linking rather than citing where possible. Where you have to cite, the existing cites are inadequate because they don't give page numbers. A simple citation style ([Cavender 1982: p.12], for example), works well. If you need footnotes, at least let the wiki build them for you.



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r7 - 22 Apr 2013 - 18:16:23 - GloverWright
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