In 1920, a 13-year-old girl implored the governor of New York to pardon her father, who was serving time at Sing Sing for receiving stolen property. She addressed her petition to “your Majesty Governor Smith” (179). Her erroneous salutation captured a deeper truth about executive clemency: its origins in royal prerogative. Carolyn Strange's Discretionary Justice is framed, in part, around this historical puzzle. Why did the pardon power, the hallmark of absolute rule, survive the transition to democracy? In New York State, critics at both the 1821 and 1846 constitutional conventions decried executive clemency as incompatible with republican government, yet through each successive controversy, the “one-man power” survived, increasingly framed as a necessary safety valve against penal overreach (and often used, in practice, to relieve prison overcrowding). The 1846 constitution left the pardon power intact, but allowed for limited legislative oversight of the process. New York's current constitution preserves this compromise, empowering the governor “to grant reprieves, commutations and pardons … as he or she may think proper,” subject only to regulation “relative to the manner of applying for pardons” (N.Y. Const. art. IV, § 4).

More than a history of the pardon power, Discretionary Justice is a wide-ranging exploration of the persistence of mercy in the modern state. After three chapters on Founding Era and antebellum debates about clemency, the second half of the book follows New York criminal justice policy into the 1920s, tracing the rise of parole and other administrative forms of relief from punishment. The book's chronological sweep enables Strange to weave executive clemency and bureaucratic parole into one intertwined history. In contrast, criminal justice scholarship often taxonomizes the pardon power and parole as separate, successive penal stages. According to this view, traditional clemency was supplanted by Progressive Era innovations such as parole, which emblemized the Foucauldian shift from “sovereign justice” to “discipline” (8). By pushing parole's origins backward into the nineteenth century and, conversely, following the pardon power's persistence forward into the twentieth century, Strange reveals a messier history of coexistence and interaction between the clemency and parole regimes. For example, by the 1910s, governors often leveraged the emerging parole bureaucracy as a partner in the clemency process by issuing conditional commutations that required prisoners to submit to parole supervision post-release.

Ultimately, practical concerns have proved a more formidable constraint on discretionary relief than has political theory. Over time, the once-grave philosophical conundrum of squaring executive prerogative with democracy faded from public concern. Stripped of its royal trappings, clemency remained troubling mostly insofar as it appeared to inject emotions and personal whim into penal decision making. Such concerns could be alleviated by imposing structure on the decision-making process. Governors developed the custom of announcing reasons for pardon decisions, even when not legally required to do so. One might understand modern parole boards, with their point systems and procedural requirements, as the product of this history of attempts to rationalize the exercise of sovereign mercy. A second genre of complaint, however, proved stickier: complaints targeting not the power to grant relief but the overly generous use of that power. Whether it was Enos Throop in the 1830s or “his Majesty” Al Smith a century later, governors perceived as profligate pardoners met with political blowback. By the 1920s, bureaucrats encountered similar wrath, as pundits accused parole boards of indiscriminately turning prisoners loose.

In 1929, Governor Franklin Roosevelt appointed a commission to study what had sprawled into an unwieldy mélange of multiple overlapping parole boards and clemency procedures. Discretionary Justice concludes in 1930, when Roosevelt signed into law reforms consolidating responsibility for clemency and parole applications in a single agency. The governor retained the ultimate constitutional authority to pardon, however, as well as day-to-day decision making power in cases involving the death penalty. Although New York has since abolished capital punishment, governors in several states retain this ultimate power over life and death, one way in which modern penology rests on premodern forms. No less than monarchy, perhaps, the modern state derives sovereign authority not solely from the power to punish but also from the power to absolve.

Strange draws on 8,000 recently opened clemency case files, along with parole hearing transcripts, gubernatorial messages, legislative proceedings, and the reports of citizens’ watchdog groups. Throughout, she provides nuanced discussions of how race, class, and gender shaped decision making, although many of these findings are unsurprising (when seeking clemency, it has always helped to have wealthy supporters, although there are no guarantees). Strange uncovers intriguing pockets of surprise, however. Befitting her larger critique of Foucauldian accounts, she notes that Progressive Era expert taxonomies of “sexual psychopathy” made little initial impact on parole boards, who displayed remarkable nonchalance about granting early release to prisoners convicted of sex offenses. Little moved by the fat folders of psychiatric diagnoses that increasingly landed on his desk, one parole board chairman explained in 1926 that he placed more stock in “the appearance of the man” (192). At a moment of growing interest in the historical origins of the “carceral state,” Strange notes that there are more histories of punishment than of mercy; one hopes that Discretionary Justice will inspire more of both.