The Foundations of Parole in California Author(S): Sheldon L
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The Foundations of Parole in California Author(s): Sheldon L. Messinger, John E. Berecochea, David Rauma and Richard A. Berk Source: Law & Society Review, Vol. 19, No. 1 (1985), pp. 69-106 Published by: Wiley on behalf of the Law and Society Association Stable URL: http://www.jstor.org/stable/3053395 Accessed: 29-09-2016 19:00 UTC JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact [email protected]. Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at http://about.jstor.org/terms Wiley, Law and Society Association are collaborating with JSTOR to digitize, preserve and extend access to Law & Society Review This content downloaded from 129.130.52.6 on Thu, 29 Sep 2016 19:00:26 UTC All use subject to http://about.jstor.org/terms THE FOUNDATIONS OF PAROLE IN CALIFORNIA SHEnDON L. MESSINGER* JOHN E. BERECOCHEA DAVID RAUMA RICHARD A. BERK Parole was introduced in California, and used for over a decade, primarily to relieve governors of part of the burden of exercising clemency to reduce the excessive sentences of selected state prisoners. Later, when parole was additionally used to relieve prison crowding, processes were initiated that eventually led to the adoption of a rehabilitative justification for parole. We outline these events and their background and briefly consider their implications for the study of penal reforms. This article examines the origins and early development of parole in California, one of the first states to adopt the measure for adult prisoners. The empirical argument of the paper is as follows: Parole was proposed, and used for more than a decade, selectively to provide "early" release for prisoners serving "excessive" terms. As such, it was intended and used as a partial substitute for executive clemency. Later, it was turned to an additional end: to control the size of the prison population. This latter use undermined the earlier justification for parole and led to establishment of an agency to provide surveillance of and services to parolees. Only with this development did parole-supervision come to be emphasiz7d and parole begin to be justified as a means for helping to assure the "rehabilitation" of released prisoners. Sections I-V of this article deal with the events leading to the adoption of parole in 1893. Sections I and II examine official concern over excessive sentences and the use of executive * This paper is based on research supported by grants from the National Institute of Justice and the Law and Social Sciences Program, National Science Foundation. We wish to thank: David L. Snyder and Joseph P. Samora, California State Archives, and Marie Vida Ryan and Dona Good, California Department of Corrections, for help in locating primary records; and Francis A. Allen, Thomas G. Blomberg, Stanley Cohen, Gilbert Geis, Richard O. Lempert, and Stanton Wheeler for editorial suggestions. LAW & SOCIETY REVIEW, Volume 19, Number 1 (1985) This content downloaded from 129.130.52.6 on Thu, 29 Sep 2016 19:00:26 UTC All use subject to http://about.jstor.org/terms 70 FOUNDATIONS OF PAROLE IN CALIFORNIA clemency to modify them. Section III considers the implications of removing control of the prisons from elected officials to a "non-partisan" board. Section IV analyzes the board's recommendation of parole, and Section V, the events leading to legislative adoption of the recommendation. Section VI shows how parole was used from 1893 until about 1907, when prison population pressures mounted; Section VII, how these pressures led to change in parole policy. Section VIII explores modifications in the structure and rhetoric of parole in California after this change, until 1914, the eve of indeterminate sentencing in California. A summary and conclusions are offered in Section IX. I California became a state in 1850 and at first leased its prisoners to private entrepreneurs who sold the prisoners' labor to various businesses, including their own.' The expense of the enterprise, rumors of corruption, persistent complaints about atrocious prison conditions, and perhaps most important, large numbers of escapes, often preceded by bloody mass uprisings, helped move state officials to take over management of the prisoners in late 1860.2 By that time, prison buildings surrounded by a wall had been constructed at San Quentin. There were over 500 prisoners on hand, with more coming daily. When the state took over, prison management was formally lodged in a Board of Directors of the State Prison, composed of the governor, lieutenant governor, and secretary of state.3 The lieutenant governor also functioned as the resident director and warden of San Quentin, when he was not busy with his other duties. The Board appointed San Quentin personnel. Its primary mandate was to keep the prisoners 1 There is no fully satisfactory history of nineteenth- (or twentieth-) century penal affairs in California. However, Lamott (1961) provides an informative and generally reliable account, especially for the nineteenth century. A useful general history of California is provided by Bean (1973). 2 During most of the period 1851-60, the state paid the lessees for housing, feeding, and keeping the prisoners. Rumors of pay-offs for pardons and for arranged escapes were rife. Prisoner uprisings were common. See Lamott, 1961: 1-81. Through fiscal 1861, about one-third of those leaving the prison did so by escaping. This was about one-fourth of those committed by the courts during the same period. Fewer than half of those who escaped appear to have been recaptured. These and similar numbers derive from annual and biennial reports of the various prison boards, compiled by the authors. 3 The Board of Directors of the California State Prison (1858-79) was preceded by boards without full control of the prison. This content downloaded from 129.130.52.6 on Thu, 29 Sep 2016 19:00:26 UTC All use subject to http://about.jstor.org/terms MESSINGER, BERECOCHEA, RAUMA AND BERK 71 behind San Quentin's wall, peacefully if possible, until their sentences expired. Prisoner labor was to be used to produce income to reduce expenses, but secure, peaceful confinement was the more significant goal. An important source of prisoner discontent, which made tranquil confinement difficult, was the "excessive" sentence. Sentences considered "too severe" or "excessive" often sorely troubled prisoners and those responsible for keeping them peacefully confined. Governor John B. Weller (1858-60) mentioned several sources of such sentences, suggesting that, by 1860, excessively severe sentences were both fairly frequent and difficult or perhaps impossible to avoid in advance. There was the fallibility of judges and juries, particularly "in a new country [like California], composed of a population drawn from all parts of the globe." And there was the tendency "at different periods," when crimes became "frequent," for local jurisdictions to impose "extraordinary punishments to arrest the evil." Then, too, "a few years since," some judges "sought to establish the reputation of severe, rather than just, officers." Although he had used his clemency powers sparingly, the governor said he had "not hesitated to extend executive clemency" in such cases (Weller, 1860: 66-67, emphasis in original). The Prison Directors suggested in 1865 why state prisoners with excessive sentences might become especially upset: We wish to call attention to an evil without knowing how to suggest a remedy: That is, the disparity in the sentences of Courts for the same grade of crime. Men have been sentenced to the Prison for the term of ten years for stealing a pair of mules or oxen, while others from other Courts for the same crime or one similar have been sentenced for two or three years. No mode of reasoning will convince the prisoners that both of these sentences are equal and exact justice (DCSP, 1865: 8-9). In addition to feeling that they had been dealt with unjustly, they would feel that they had been treated unfairly. No remedy except executive clemency was immediately forthcoming. Governors and other members of the Board of Prison Directors continued to tell the legislature that excessive sentences were frequent and caused prisoner discontent. Governor Frederick F. Low (1863-67) commented in 1867 that: It has been for some years a well settled belief in the minds of those having the best opportunities for acquiring information, that a large number of prisoners at San Quentin [are] . suffering This content downloaded from 129.130.52.6 on Thu, 29 Sep 2016 19:00:26 UTC All use subject to http://about.jstor.org/terms 72 FOUNDATIONS OF PAROLE IN CALIFORNIA imprisonment under unjust or unreasonably long sentences (Low, 1868: 39). In 1873, Governor Newton Booth (1871-75), drawing on his experience with appeals for pardon, said: The inequality of sentences for the same offense in different Courts, and often in the same Court, at different times, will become apparent to any one called upon to review them. This [breeds a] sense of injustice [that] rankles in the bosom of the convict and emphasizes his war with society (Booth, 1874: 76). Governor Romualdo Pacheco (1875) confirmed this judgment during his brief stay in office, adding that it was not only prisoners and prison officials who were disturbed: Judges and juries frequently unite in soliciting the Executive to undo their work. Prosecuting officers regret their own successes, prosecuting witnesses become repentant, and the victims of criminal acts obtain satisfaction, before the term of a sentence has expired-sometimes, almost before it begins-and they join in a petition for a pardon .