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Law & Society Review - Foundations of Parole in California, Messinger et al, 1985

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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
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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 Nati
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)

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70 FOUNDATIONS OF PAROLE IN CALIFORNIA

clemency to modify them. Section III considers the impl
of removing control of the prisons from elected officia

"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.

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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

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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 . . . [There is] also the

misery and actual destitution of the innocent, for
whose wants [the prisoner] would provide if released
. .(Pacheco, 1876: 21).

Governor William Irwin (1875-80), concurring in the

indictment of "the inequality of sentences for crimes of
essentially the same character," outlined certain consequences
in 1877:

It is not in human nature-not even in criminal human

nature-not to rebel against this kind of inequality.

The convict who has the long sentence at once feels
that he is the subject of injustice and oppression. In

the forum of his own conscience he stands the accuser

of society for the wrong it is inflicting upon him. ...
And he now feels the glow of a moral sanction as he
resolves afresh to perpetuate his war against society
(Irwin, 1878: 28-29).
A year later, Lieutenant Governor James A. Johnson explicitly
tied the sense of injustice to the problem of prison

management. While resident director and warden of San
Quentin, he said there were at least two hundred prisoners
"serving excessive, unheard of, and inhuman sentences." Such
sentences produce prisoners who are "brooding, plotting,
unreliable, unsafe, treacherous and unhappy criminals."
Something ought to be done; a tenfold increase in the number
of pardons for state prisoners would not be too much (DCSP,
1879: 11-12, 20-21).

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MESSINGER, BERECOCHEA, RAUMA AND BERK 73
II

But no effective action to deal with excessive sentences was

taken. Indeed, before parole was adopted in 1893, executive
clemency was the only way to modify the excessive sentences
of most state prisoners.4
Problems associated with its use for this purpose were
recognized very early. Pardoned prisoners might recidivate, for
example, thus embarrassing governors. Governor Weller, in
1859, was moved to "regret to say" to the legislature that two
pardoned convicts had "deceived" him; they seemed to have
gotten into trouble with the law again. He was also moved to
present a "pardon docket" recording the names of citizens
supporting prisoners' "prayers" for pardons and his reasons
for:

granting or rejecting the prayer. The publication of
this will, at all events, show the people (who have
morally, if not constitutionally, a right to know) the
grounds upon which the power was exercised (Weller,
1859: 32-33).

Some earlier governors had neglected, apparently, to furnish
the names of the pardoned to the legislature, leading to
suspicions of corruption.5
In 1860, Governor Weller presented an even more
elaborate defense of his exercise of the clemency power.
Responding to complaints that he was pardoning too many
prisoners, he furnished a chart purporting to show that his
administration had issued pardons to a smaller proportion of
prisoners than had benefited from such actions in eight of nine
other states. He also called for a legal change to permit the
courts to retry cases when there was newly discovered evidence
throwing doubt on the conviction. "As it is now, the Governor
may be deceived or imposed upon by ex parte affidavits, or the
statements of persons unacquainted with all the evidence"
4 "Good time," adopted in 1864, permitted the Directors to shorten
prison terms, but in proportion to the length of the sentence. Thus, although
absolute disparities could be reduced, relative disparities remained.
Additionally, maximum grants of good time, which reduced sentences from
about 20 to 40% (the longer the sentence, the greater the percentage
reduction), did not permit making long sentences short, merely shorter. The
courts uniformly refused to modify sentences unless a clear-cut "legal error"
was involved. See, e.g., People v. Bowers for a statement holding the executive,
not the court, responsible for a remedy.
5 Governors were required by CAL. CONST. of 1849, art. 5, ? 13 to report
the names, crimes, length and dates of sentences, and dates of pardons or
reprieves to each legislature. Weller initiated the practice of reporting more
than was required, a practice continued by later governors. CAL. CONST. of
1879, art. 7, ? 1 added that the reasons for granting pardons and reprieves were
also to be reported.

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74 FOUNDATIONS OF PAROLE IN CALIFORNIA

(Weller, 1860: 65-68). Governor John G. Downey (18
echoed his predecessor in expressing great concern over
granting pardons, saying he did not desire to thwart the justice
done by the trial courts. He offered the legislature assurances

that he was exercising his power with "due caution and
discretion" (Downey, 1861: 37).

In 1865, the state Prison Directors noted two problems
specifically associated with using executive clemency to modify
the disparate sentences of state prisoners. First, there was no

way confidently "to separate the deserving from the
undeserving." This would require examining the sentences of
all 650 prisoners and, as elected state officials with other
pressing duties, they-and, especially, the governor-were
simply too busy to carry out such a large, complicated task.
The second problem was with the governor's taking on "the
responsibility of pardoning the number of men, whose good

conduct, faithful labor and inordinate sentences seem to entitle

them to pardon." Making this point explicit, the Directors
noted that although the governor had granted pardons to but 11

prisoners during the past year, he had been subjected to
unfavorable comments in the public press. This, they said, was

not because the prisoners were undeserving of pardon but
because the number was seen as too large (DCSP, 1865: 9).
The legislature finally responded but not in a way that
satisfied governors. In 1868, the Directors were required to
report to the legislature at each session the names of prisoners
who ought to be pardoned. The governor, in turn, could pardon
such reported convicts if the legislature so recommended by a
majority vote of both houses (1868 Cal. Stats., ch. 137). A year
later, the names of 52 prisoners were reported to the legislature
to be worthy of pardon, including 8 with life sentences and 28
others with sentences of 10 years or more. Given the pressures
later brought to bear on the paroling function, it is interesting

to note that the Directors' report contained the following
statement:

In view of the crowded conditions of the cells at the

prison, and the fear that the appropriation will not
admit of the erection of additional ones the coming
year, the Directors may have extended the above list
somewhat beyond the limits which they otherwise
might have done (DCSP, 1869-70: 4).
So far as we know, the Directors did not again use the
provisions of this bill. In 1871 Governor Henry H. Haight
explained why:

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MESSINGER, BERECOCHEA, RAUMA AND BERK 75

The practical working of this Act is not
satisfactory .... The selections for recommendation
are liable to be hastily and indiscriminately made, and
the Legislature has not the means of acting
intelligently upon the report of the Prison Directors
(Haight, 1872: 44).6
Later governors continued to sound the litany of troubles
attending the use of executive clemency. Governor Pacheco, in
1875, outlined the difficulty of taking account of the multiple
values a governor was supposed to honor when granting
pardons:

To maintain a due respect for the power of the law, to
avoid weakening the force of example, to refrain from
violating any principle of justice and yet to decide
impartially upon appeals for clemency ... is difficult
beyond the comprehension of those who lack the
experience [of dealing with clemency matters]
(Pacheco, 1876: 21).

Governor Irwin, referring in 1877 to the continuing need to
deal with "gross inequalities of sentences," proposed that the
legislature should find other means than executive clemency:
The exercise of the pardoning power of the Executive
is wholly unsatisfactory to all parties concerned-to
the criminals as a body, to their friends, to the
community at large, and-more than to any one else-

to the Executive himself.

As exercised, he went on, the power may be "productive of
more evil than good." Not that it has been too freely exercised
or, by and large, exercised in improper cases. Nor did Irwin
believe that lodging the power in some other government
department would result in better decisions. The problem, he
said, is that grounds for exercise of the power, except in cases
of apparent wrongful conviction, are "more or less vague and
ill-defined"; therefore, the power must be used "in a degree,
arbitrarily and capricious[ly]." He went on:
I presume there has been no Executive who has
exercised the pardoning power at all ... who has not
felt that there was an indefinite number of other cases,
in which precisely the same reasons existed for
exercising it. ... The tendency of such an exercise of
the pardoning power is to produce among prisoners,
who are not pardoned, dissatisfaction, and a sense of
injustice, analogous to that which results from the
inequality of sentences.
6 In 1880, the law was amended to require the Prison Directors to report
to the governor instead of the legislature. (1880 Cal. Stats., ch. 71, ? 34.)

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76 FOUNDATIONS OF PAROLE IN CALIFORNIA

Irwin suggested that, "with the introduction of a plan to
equalize sentences," the pardoning power should be
"eliminated" from the criminal justice system. Persons
wrongfully convicted should be discharged from prison; power
should be "vested somewhere" for this purpose. The guilty
should not be pardoned, but they should have a chance to
shorten their sentences "very materially" if they show
"punctiliousness" in the observance of prison discipline, and
"faithfulness, skill and efficiency" in performing the work
assigned to them (Irwin, 1878: 29-30).
During the next several years, Governor George C. Perkins
(1880-83) continued to call the attention of the legislature to the
twin evils of unjust sentences and an inadequate, troublesome
remedy. He would be pleased, he said, to aid in implementing
whatever solutions it might devise (Perkins, 1881: 20-21; 1883:
13). As the result of a constitutional change, Perkins, unlike
Irwin, was no longer a prison director. The results of this
change, as well as events during Perkins' tenure of office,
brought the state a step closer to adopting a measure-paroledesigned to address the problems of excessive sentences and
clemency with which he and other officials were concerned.
III

The Constitution of 1879 replaced the governing board of
elected state officials, acting ex officio, with a board of five
citizens appointed by the governor to staggered, ten-year
terms.7 Members of the new State Board of Prison Directors

were to devote part of their time, without salaries, to managing
the prison system, which had come to include Folsom State
Prison as well as San Quentin. The Board was to appoint a
warden and clerk for each prison; each warden would appoint
the other personnel of his prison. The change was intended to
provide more stable management for the prisons and more
permanent personnel, instead of the virtually complete
turnover at each gubernatorial election that had been the case.
It was also intended to relieve elected officers, especially
governors, of a heavy task, for which they did not feel
especially well prepared. Previous governors had long
recommended such a change.

The change was also intended "to take the prisons out of
politics," but whether it ever did so may be doubted. In any
7 The constitution was adopted by majority popular vote in May 1879;
Art. X embodies the relevant change.

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MESSINGER, BERECOCHEA, RAUMA AND BERK 77

case, it did not do so immediately. Governor Perkins appointe
five Republicans to the first Board of Prison Directors.
Charges of misconduct soon surfaced, eventually moving
Perkins to appoint a Special Commission of Inquiry into prison
affairs. In its report of August 1881, the Commission found the
Directors and wardens guilty of a variety of financial and other
infractions. Its main finding, however, was that the Prison
Directors and the wardens had violated the intent of the new

constitution by continuing to operate the prisons as partisan
spoils. Not only were the Directors all Republicans; so were the
wardens and clerks they had appointed. Further, many prison
personnel who were Democrats had been replaced with
Republicans; and the wardens, legally required to make these
appointments, had agreed to clear them with the Prison
Directors (Lamott, 1961: 136-38; Special Commission of Inquiry,
1881: 4-9). The continuation of partisan politics in the prisons
was seen as a grievous wrong-the bane of prison reform:
There is no other factor in the whole subject of penal
administration of equal importance. In fact ...
whether proposed legislation will or will not produce
salutary effects must depend upon the elimination of
politics from prison management . ..[In this case,] the
first principles of penal reform were deliberately
violated at the very threshold of the new
administration, and what followed was still more

flagrantly at variance with all reform requirements .... The whole prison administration has been
thrust in the political groove, and every purpose of
reform in the new constitution has been stifled and

aborted (Special Commission of Inquiry, 1881: 62-63).
Governor Perkins left office in January 1883 without
removing the Prison Directors. But the matter was not
concluded. In February, a majority report of the Senate
Committee on State Prisons and Prison Buildings charged the
prison officials with 15 breaches of statutory and constitutional
law. The Committee found the Prison Directors to "have been

grossly negligent in the performance of the duties assigned to
them." The Senate, upon a majority vote, amended the report
only by deleting the phrase "and their whole course is
reprehensible and deserving of condemnation," and forwarded
it, with 1,127 pages of accompanying evidence, to the new
Democratic governor, George C. Stoneman (1883-87) (JS, 1883:
345-46).

Stoneman, in turn, launched his own inquiry during the
summer of 1883. It culminated in September with the removal
of the four remaining Perkins appointments (the fifth had

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78 FOUNDATIONS OF PAROLE IN CALIFORNIA

resigned earlier and been replaced by a Stoneman a
The resignation of the San Quentin warden was accepted
shortly thereafter (Lamott, 1961: 140; Sacramento Weekly Bee,
Sept. 22, 1883; San Francisco Evening Bulletin, Sept. 17, 1883;
BMSQ, Vol. 1, Oct. 10, 1883: 317, and Oct. 12, 1883: 320-21).

Governor Stoneman sought new Board members among
Republicans as well as Democrats, though he had some
difficulty finding Republicans willing to serve (Sacramento
Weekly Bee, Oct. 6, 1883). In the end, however, Charles
Sonntag and Robert T. Devlin were appointed as the
Republican members. Sonntag, a San Francisco commission
merchant (of munitions, among other things), had been a
founder of the California Society for the Prevention of Cruelty
to Children. Devlin, a Sacramento corporation and bank
counsel, was known for his legal acumen; he had written on the
laws of real property and deeds and on the treaty powers of the
United States. Later he was elected to the state Senate, and

became a U.S. attorney. The three Democrats also had active
public and business lives. John Boggs was a wealthy landowner
and sheep rancher who had been a county supervisor, a
member of the governing board of Napa Insane Asylum, and a
member of the California Board of Agriculture. William C.
Hendricks, involved in gold mining, had been a state senator;
he was later elected secretary of state. James H. Wilkins was a
well-known journalist and newspaper editor, who also served as
the mayor of San Rafael. Governor Stoneman appears to have
put together a Board of Prison Directors composed of persons
of some stature, perhaps particularly in the eyes of the
legislature, people who were able to afford to spend nonsalaried time on prison affairs. And the Board, if still partisan,
was at least bipartisan.
Stoneman immediately initiated the practice of referring
all clemency petitions to the Prison Directors, save only those
"having apparent merit, and demanding immediate attention."8
The Prison Directors, he said, could better investigate the
claims made by petitioners, thus assisting him in carrying out a
difficult duty. He reported that the Board served him well:
In nearly all cases their presentation of facts and the
conclusions therefrom have been thorough and
satisfactory, and they have been of great assistance to
the Executive in determining the delicate problem

8 It is worth noting that the Prison Directors removed from office had
indicated their awareness of the problem of prisoners with unjust sentences.
They said that they didn't have time to investigate properly such a large
number of cases (BPD, 1880: 12).

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MESSINGER, BERECOCHEA, RAUMA AND BERK 79

presented of doing justice to the prisoner and at th

same time, my duty to the State (Stoneman, 1885: 36-

37).

The warden of Folsom also commended the newly
appointed Board for the quality of its recommendations, noting
their positive effects on prisoner conduct (BPD, 1884: 61). The
Board, for its part, highly praised Governor Stoneman for his
pardon actions, despite "adverse criticism," claiming that only
two prisoners he had pardoned had been returned to prison for
the commission of new felonies.9 It credited this result to its

thorough investigations, which had weeded out the
undeserving. Favorable recommendations were said to have
been based on "doubt as to guilt, excessive punishment, or
unusual service to the State, backed up by a thorough
conviction of the prisoner's reformation," and the governor,
they said, has, "as a rule, followed such recommendations"
(BPD, 1885: 7-8).

In closing their report, the Prison Directors explicitly
proclaimed their fitness for the task of recommending sentence

modifications by emphasizing their separation from political
influences:

The Board in its constitution is purely non-partisan
and the provisions of the Constitution in creating a
Board of this character have been faithfully observed.
We have endeavored to conduct the prisons as business
institutions, and with regard solely to the public
interest. How well we have succeeded others must

judge (BPD, 1885: 8).

Such actions and statements laid the ground, we think, for a
more complete transfer of discretion to the Board of Prison
Directors in the matter of sentence modifications. Still needed

was an effort to describe, justify, and move the legislature to
adopt the procedures that would embody the required
discretion.
IV

Senate Concurrent Resolution No. 5, adopted February 16,
1885, directed the governor "to appoint a committee of five
citizens to inquire into the subject of penology as applicable to
the conditions of prison affairs in this state" (PC, 1887: 1). The
9 One example of "adverse criticism," not particularly more colorful
than others that might be presented: "Governor Stoneman is piling up a fine
record of pardons in the closing days of his administration. Murderers,
burglars, thieves, confidence men, defaulters, all these have been allowed to go
free . .." (San Francisco Chronicle, Dec. 14, 1886).

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80 FOUNDATIONS OF PAROLE IN CALIFORNIA

precise reasons for this resolution are obscure. Howev
possible to infer that, whatever the reasons, the Com
was destined to be used as a vehicle for recommending
solutions to those problems that prison officials, as well as the
governor, considered most pressing. Governor Stoneman helped
fashion this outcome on October 26, 1885, by establishing the
five members of the Board of Prison Directors as the

"Penological Commission."

The Commission's report was submitted to Governor
Stoneman in 1887. In 21 chapters covering 167 pages, it
discussed the care of abandoned, dependent, and neglected
children; the role of the state police and police matrons; the
county jails; the causes of crime (which included want of a
trade, ignorance, intemperance, and the looseness of marriage
obligations). Pious hopes were expressed: that children would
receive better care; that personnel could be better selected and
trained; that county jails could be improved. Three pieces of
legislation were proposed. The most carefully presented and
defended, and the only one to be enacted, was the proposal for
"An Act to Adopt a Parole System."
Chapters on "Indeterminate Sentences" and "Inequalities
of Terms and Sentences" (PC, 1887: 40-45, 56-69) prepared the
ground for the discussion of parole. The Commissioners knew
the tenets upon which indeterminate sentences are based, and
they believed there was "much of merit" in these ideas. But
they declined to recommend adoption in California. To adopt
indeterminate sentences, they said, "would be at once to change
all the ideas of punishment that had hitherto prevailed." In
particular, it would reject the principle that more serious
crimes should be punished more severely. This "would rob the
law of its terror to evildoers, and the deterrent effects of

criminal punishment would be lost." "We do not believe that in
the present time our people are prepared to accept this code,
that draws no distinction between crimes," they went on. In
addition, they strongly doubted that people could be found who
had "sufficient knowledge of human nature, courage, and
power to withstand the importunities of friends, to be intrusted
with this vast power" to release anyone from prison, anytime,
no matter their crime.

Why did the Commissioners feel called upon to discuss
indeterminate sentencing, only to reject it? First, in our view,
they were concerned to document their still-developing
credentials as nonpartisan experts through careful
consideration of the newest ideas in penology. This also

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MESSINGER, BERECOCHEA, RAUMA AND BERK 81

accounts, we think, for the broad coverage of topics in their
report. Second, they were concerned to show their regard for
what they took to be the prevailing local sentiment, evidence
in court decisions, that serious offenders should continue to
receive severe sentences. Their discussion says, in effect, that
as prison officials, the Commissioners would not use discretion
in a way that contravened the sentiment of the community. At
the same time, as nonpartisan experts, they would use
discretion in an enlightened fashion, taking all new ideas into
account.

The next chapter of the report dealt with excessive
sentences. "There is no more perplexing question," the report
says:

than what should be the length of time to which a
person convicted of a crime should be sentenced ....

It will be admitted that for the same offense as defined

by statute, different persons, under different
circumstances aggravating or mitigating their crimes,
should receive different sentences. But it is not right
that the same person, for the same offense, should
receive a punishment all out of proportion to what he
should receive, depending on the accident of appearing
before one or another Judge of the same Court, or
from a temporary excitement of the public mind,
either with reference to that offense or to that

particular offender, or to offenders generally (PC,
1887: 56).

Still, this happened; there are "cases where sentences of undue
severity have been pronounced." Indeed, it happened
frequently, as shown by long lists of prisoners at San Quentin
and Folsom, classified by offense, with quite different
sentences: from one to ten or more years for grand larceny,
burglary, and other common crimes. And, it is noted, the "only
way of rectifying inequalities, where such exist, is at present, by
an appeal to executive clemency."
Finally, "The Parole System" is discussed (PC, 1887: 70-81);
it is the answer to a carefully posed dilemma. The courts,
properly concerned with deterrence but working with statutes
that permit considerable variation in sentences, and subject to
pressures that produce such variation, sometimes, if
inadvertently, impose excessive sentences. This demoralizes
prisoners and makes them difficult to manage; it probably also
increases the law-violating propensities of ex-prisoners.
Indeterminate sentencing has been proposed as a solution, but
this risks undermining the deterrent influence of court
sentences. Further, given pressures to release prisoners, who

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82 FOUNDATIONS OF PAROLE IN CALIFORNIA

was there who could be trusted not to release "crimin

nature"10 back to the community long before the inten
law was satisfied?

Parole of first-termers not convicted of murder should

resolve the dilemma, particularly if release is entrusted to a
nonpartisan board, expert in penology.
By this system the inequality of sentences which
confessedly exists, can be corrected without weakening
the respect that all should have for the sentences of
the Courts. . . (PC, 1887: 70).

Further, parole will relieve the governor of many of the
"arduous and unpleasant duties" involved in exercising his
clemency powers. This point is made again in a separate, later
chapter (PC, 1887: 116-23) emphasizing the help that the Prison
Directors had been able to give the governor by subjecting each
application for clemency to "a patient and careful examination
to determine its merits." Doubtless, the Commissioners
asserted, the adoption of parole would greatly reduce the
number of pardon applications.
The Commission report was submitted to Governor
Stoneman just before his term expired in January 1887. In his
final address to the legislature, the governor directed its
attention to the report's recommendations:
One of the most important of these [he said] is what is
commonly called the "parole system." This system is
now in operation in Ohio, and from all that can be
learned is productive of great benefit both to the
prisoner and to the general community. In a modified
form, it prevails in several European Institutions. The
Penological Commission recommended the adoption of
this system in this State and in the recommendation I
concur. I believe that it is the best system which can be
devised for reforming the prisoner, and at the same
time giving protection to the interests of society
(Stoneman, 1887: 12).

V

The bill drafted by the Commission authorized the Prison
Directors to parole first-termers, except those convicted of
murder, after one year of imprisonment. Introduced in 1887
after Governor Stoneman left office, it failed to pass the
legislature (JS, 1887: 85, 149, 350-51, 393, 407; JA, 1887: 144, 253,
10 The phrase was used by the Commissioners (PC, 1887: 70 and passim).

Such prisoners were to be discriminated from "those who, not bad at heart,

have committed crime." It is the latter who were to be paroled. The influence

of Lombrosian thinking is apparent.

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MESSINGER, BERECOCHEA, RAUMA AND BERK 83

579, 653). Washington Bartlett (January-September 1887), the
governor when it failed, believed in the sparing use of clemen
(Melendy and Gilbert, 1965: 223-24). So did his successor,
Robert Waterman (1887-91), who also felt that the power to
pardon should be confined to the governor (Waterman, 1888:
15). No parole bill was introduced during Waterman's tenure.
The situation changed during the tenure of Henry H.
Markham (1891-95). The origins of a parole bill introduced in
1891 are unknown. Different from the Commission's bill, it

would have authorized parole of any prisoner by a citizen board
at each prison, headed by the warden. It seems unlikely to have
been supported by the Directors or the governor. In any case, it
did not pass (JS, 1891: 289, 366, 367; JA, 1891: 314, 412). Nor did
a similar bill introduced in 1893, proposing parole boards that
included the Directors, along with the wardens and guard
captains of each prison. But five days after the introduction of
the latter bill, the Directors asked the prison committees of the
Senate and Assembly to substitute for it a bill duplicating the
original, Commission-written legislation (BMSQ, Jan. 14, 1893:
335). This was done, and the bill soon passed both houses by
large majorities (JS, 1893: 45, 243, 286, 391; JA, 1893: 412, 425,
635, 698, 741, 793, 820-21, 945).

Governor Markham's support seems to have played a key
role. Addressing the legislature in 1893, he noted the burden of
exercising his clemency powers. Although aided by the Prison
Directors, to whom he sent for investigation and
recommendations all petitions not rejected outright, he was
convinced that more prisoners should serve reduced terms than
could be reached through the clemency process. California
state prisons, he said, confine:
from two to three times as many prisoners as in any
other State in the Union in proportion to ..
population.... I believe it is due to two reasons.
First, our statutes create such an exceedingly large
number of State prison offenses. Second, because the
Judges of this State, in their discretion, impose
excessive sentences as compared with other States ...
(Markham, 1893: 44-45).

Perhaps a partial remedy might be found in parole.
I recommend that your honorable bodies give this
system a thorough examination, for I have no doubt
that within our prison walls is a large number of men
who could be trusted to go upon their parole and thus
save the State a very great expense, and afford the
men themselves an opportunity of proving that they

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84 FOUNDATIONS OF PAROLE IN CALIFORNIA

can be trusted and that their desire to reform is

genuine (Markham, 1893: 45).

On March 23, 1893, Governor Markham signed the parole
bill, notwithstanding a flurry of mostly negative newspaper
comment during the preceding weeks."1 Two years later, he
commented on parole in a final address to the legislature:
At the time of its passage, much opposition was
manifested to its enactment. Since testing it, many of
the objections have been withdrawn, and, under the
stringent rules adopted by the Board of Prison
Directors, it promises to result beneficially to all
concerned. It certainly acts as a great incentive to the
prisoner, and aids in a better maintaining of prison
discipline (Markham, 1895: 40).
This abbreviated account of six years of relative inaction
further points up the importance of governors' attitudes toward
"excessive" sentences and clemency for the history of parole in

California. Direct promotion of parole in the state stemmed
mainly from the Board of Prison Directors, but they responded
to gubernatorial concerns, and their initiatives waxed and
waned with each governor's enthusiasm for the measure.

Prison administrators (e.g., wardens) supported parole as a
disciplinary aid but presumably were reluctant to promote it,
and unable to do so successfully, without the support of their
appointers, the Directors. The positions of local legal officials
are not evident from existing records. No private organizations
promoting parole (or other penal reforms) appear to have
existed in California during the relevant period. Neither are
there any signs of more diffuse popular support. On the other
hand, although newspaper commentary only surfaced when
adoption was imminent in 1893, it mainly argued that parole
would weaken criminal penalties, thus encouraging crime, as
well as immediately unloose a flood of dangerous convicts. Such
commentary assumes broad support for penal severity, which
parole was thought to reduce, and helps make understandable
why, without strong gubernatorial urging, legislators would be
reluctant to vote for it.
VI

As noted, the statute authorized the Directors to parole
only first-termers not convicted of murder. Thus, the Board did
not have to consider parole for repeat offenders or those
11 For newspaper comment see the San Francisco Examiner, Mar. 15,
1893, and Apr. 4, 1893. The latter contains quotations from many other
California newspapers.

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MESSINGER, BERECOCHEA, RAUMA AND BERK 85

convicted of the most heinous crimes and could avoid conflict

over what were typically the most sensitive cases.12 A
minimum stay of a year in prison was required, assuring some
punishment whatever the sentence. The Directors were also
authorized to "retake and imprison" parolees. Beyond that, the
statute was silent, except in giving the Board authority to
establish and enforce "rules and regulations" with respect to
parole grants and revocations.
The Board proceeded cautiously. First, it adopted rules that
made application for parole an obstacle course that few
prisoners would traverse.13 One barrier was cost: some $55 to
$65 was needed to place two notices of intent to apply for
parole in local newspapers of "opposite politics" ($5); for a
security bond to defray the expense of possible arrest and
reimprisonment ($25); to buy civilian clothing ($20); and for
fare to places of employment ($5-$15). As late as 1910, the cost
of application was said to deter "many . . . very many men"
from parole.14 Another barrier was the need to present
"satisfactory evidence . . . in writing" that "some responsible
person, certified to be such by the Clerk of the County where
such person resides," would furnish employment for the
parolee, or that the parolee would engage in "some respectable

business for himself." This requirement could hinder anyone
in a time of depression; for the many without strong outside
ties, the barrier was probably insuperable in any period.
Even more prisoners were probably deterred from applying
for parole by knowledge, which soon must have percolated
throughout the prisons, that opposition from local law officials,
or from others in their local communities, would almost

certainly result in a denial of parole. The rules required
solicitation of the opinions of local officials; publication of the
notice of intent stimulated communications from others.

In any event, few applied for parole. Although we do not

know the exact number, we do know that fewer than 210
applications reached the Board between March 23, 1893, and

12 Prisoners with life sentences, whatever the conviction offense, were
not considered for parole until 1901, when they were explicitly made eligible,
although the law had not technically barred consideration.
13 The rules may be found in BMF, Vol. 3: 238-39. They were published

separately in BPD, 1893. Otherwise uncited quotations in the following

paragraphs are from the rules.

14 The figures are from an article in the San Jose Mercury, Apr. 15, 1904;
they applied from 1893 on. The quotation is from Prison Reform League, 1910:
282-83, which gives the same total cost as a minimum. Many prisoners
employed attorneys to complete their application documents, which added to

the cost.

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86 FOUNDATIONS OF PAROLE IN CALIFORNIA

June 30, 1903, a ten-plus year period we studied inte
During that same period, at least 4,500 prisoners wer
qualified to apply.

Of the roughly 200 prisoners considered, 156 were
parole (one of these died before being released). Their
conviction offenses were various: manslaughter (26), robbery
(23), burglary (17), larceny (33), fraud (12), rape (5), arson (5),
various types of assault (16), murder (parole became possible in
1901) (14), and some miscellaneous offenses (5), including
perjury.15 As a group, those paroled had far longer sentences
than those either admitted to or discharged from prison during
the same decade. For example, among the first-term
admissions, well over half (57.5 percent) had sentences of less
than four years; fewer than one-seventh (12.8 percent) of those
paroled had such short sentences. At the other end, fewer than
a fifth (18.5 percent) of those admitted had sentences of 10
years or more, compared to almost a third (31.4 percent) of
those paroled. The proportions among those discharged during
the period were similar to those among the admittees.16
When the sentences of those granted parole are compared
with those of other first-termers in prison during the same
period, convicted of the same offense, one again sees that the
parolees tended to be chosen from among those with longer
sentences. Still, parolees were a small subset of those serving
long sentences who might have been paroled. What, if anything,
distinguished them from these others? As far as we can tell,
they, along with the unsuccessful applicants, had the resources
and confidence to try for parole. It is important to appreciate
the fact that prisoners had to apply in order to be considered
for parole-a distinct and considerable difference from later

practice in California (and elsewhere), and one linking these
early parole procedures to their origins in executive clemency.
The result was to limit the occasions on which the Directors

had to determine whether to reduce excessive sentences. Many

prisoners with excessive sentences were never considered for
parole and so served their full terms.
15 Information on parole and clemency applicants and grantees was
obtained from multiple sources, including registers of admissions (which show
later actions), Board minutes, prisoner case files, pardon application files,
papers of the California Supreme Court, and secondary sources listed in the

References.

16 The figures on admissions (and those not shown for releases) are
estimates based on an analysis of a random sample of 100 newly admitted

prisoners a year.

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MESSINGER, BERECOCHEA, RAUMA AND BERK 87

Those who applied and were denied parole appear to ha

differed from those who were granted parole mainly in that
there was community opposition to their "early" release. W
were able to find records casting light on the reason(s) for
denial in 19 of the 51 applications denied in the first decade.
Two, each with two-year sentences, were denied because their
sentences were "not excessive." Two others had sentences that

were "too long"; i.e., they had not served sufficient time to be
considered seriously for parole.17 In two other cases, the Board
felt parole inappropriate. One applicant had been convicted on
two charges, leading the Board to find those convicted of
multiple charges not "first-termers." The other person had
served several years in jail while awaiting the outcome of an
appeal; the sentencing judge recommended some action, and
her case was referred to the governor for commutation.
In 13 cases, the reason for denial clearly was opposition to
sentence reduction, most frequently by local law-enforcement
or court officials. Thus, a judge wrote about one prisoner,
sentenced to 10 years for manslaughter: "it would be an abuse
of Executive Clemency to pardon or parole him." The
prosecuting attorney added:
The officials and people of this county, quite as a
whole, will oppose his pardon, as they consider that he
will have served little time enough, with the credits
taken off of the ten years, for the crime of which he is
convicted.

Another prisoner, in for eight years for perjury, was described
by the county sheriff as a "bad man" who perjured himself to
"cover up" a theft. The prosecutor added that the prisoner was
a "moral degenerate." Neighbors, too, wrote letters about
many of those denied, saying, for example, that the punishment
"fit the crime."

Opposition of this sort was not found in the records of
those granted parole.18 In a very few cases, opinion was
reserved-perhaps the time for release had not quite arrivedand later a positive opinion expressed. In almost all cases, only
17 On average, prisoners who were paroled served 70% of their sentences
(less good time) prior to parole during the first decade. After a threat of repeal
of the parole law (discussed below), the Board adopted the rule that prisoners
could not be considered for parole until they had served half their sentences
(less good time). We infer that this was meant, in part, to avoid the appearance
of "undermining" court-fixed sentences. See Wilkins, 1918.
18 We were able to examine files containing relevant information on 54 of
the 156 parolees; 27 records included some or all of the records the Board had
consulted in granting parole. There is no apparent reason to believe that the
records of the other parolees would contain contradictory information.

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88 FOUNDATIONS OF PAROLE IN CALIFORNIA

communications expressing support for parole were p
Thus, the committing judge in the case of an offender
sentenced to 12 years for robbery said: "If the boy desires to
retrieve himself, I shall be pleased to learn he has been given a
chance to do so." Letters in this case from the parish priest,
various neighbors, the prosecuting and defense attorneys, and
even the police chief were yet more positive. In other cases,
petitions from neighbors pleaded for release on grounds of
"mercy and justice"; former employers wrote about "good
character"; judges and prosecutors mentioned mitigating
information that had later come to light; jurors expressed
second thoughts about the level of the penalty meted out by the
court, or even about the prisoner's guilt. In brief, the cases
made for those paroled resembled the cases made by governors
for many of those granted executive clemency.
The Board sought more than the assurance that local law
officials and the community supported modification of the
prison terms of parolees on grounds of "justice." The Directors
also, according to their rules, needed assurance that prisoners
would "live and remain at liberty without violating the law."
Parole advisory committees at each prison, composed of the
warden, physician, and captain of the guard, were to help
provide this assurance. The committees were to obtain "all
information possible of the antecedents of each and every
applicant," and to form and report an opinion about "the
general conduct of the prisoner, and the probability ... of his
remaining on parole without violating the law." The
committees frequently advised against parole-unfortunately,
that is all that remaining records usually say. Sometimes they
mentioned that a prisoner failed during the previous six
months to maintain a "perfect" conduct record as required. In
other cases their recommendations were clearly influenced by
correspondence indicating that the applicant's record-of crime
or character-made him a poor risk not to violate the law

again: some unsuccessful applicants were characterized as
"given to drink" or "untrustworthy."

Parole-supervision could hardly be trusted to make much
difference; indeed, little was said about supervision, and no
active supervision was provided by the Board for many years.
Parolees were required, under the rules, to report monthly by
mail. The form provided asked for a financial accounting and
was to be countersigned by the parolee's employer. Parolees
were also required to report to the local police chief or sheriff
as frequently as the Board might specify in each case. Parolees

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MESSINGER, BERECOCHEA, RAUMA AND BERK 89

would remain under the constructive custody of the Directo
until discharge from sentence. Until then, they could lose g
time credits and be reconfined for "any reason . .. satisfacto
to the board, and at their sole discretion."

Emphasis was clearly on the selection of "safe" parolees,
not on the supervision of "risks." Overall, the Directors were
arguably successful. Of the 155 prisoners released on parole
during the first decade, 17 later had their parole status
cancelled temporarily, or were reimprisoned by the Board or a
court, either before or after discharge from sentence. Nine of
the 17, over half, were returned to prison by the Board without
being convicted of a new crime. We know the reason in only
two cases: smuggling money to a prisoner by concealing it in a
book, and getting drunk and being absent from work. Of the
five recommitted by a court, four were convicted, respectively,
of grand theft, assault with a deadly weapon, robbery, and
murder. The commitment crime of the fifth is unknown.

The case of the "murderer" and his partner is instructive
about the pressures on the Board-and the use of parole as an
alternative to clemency. Abe Majors and Bert Willmore were
originally committed from Alameda to Folsom Prison in 1896,
each convicted of two counts of burglary in the first degree.
Both were alleged to be 16 years of age, although Abe Majors'
mother claimed he was 15 when convicted. The case attracted

considerable notoriety, leading to petitions signed by dozens of
citizens, a state senator, the mayors of Oakland and San
Francisco, attorneys, newspapermen, and publishers, all calling
on Governor James H. Budd (1895-99) to exert his clemency
powers in view of the prisoners' "tender years." In mid-1898,
the Directors unanimously recommended against clemency on
the basis of the "very strong protest" from the Alameda
prosecuting attorney and "others," stating that the applicants
"would only again commit offenses" and had "not yet satisfied
the ends of justice by the length of their terms of
imprisonment."
By December 1898, however, with public pressure
continuing, Majors and Willmore were being considered for
parole. At the end of the month, both were paroled. What
justified the change of heart, apparently, was testimony from
Folsom Warden Aull that the prisoners' conduct in prison had
led him to conclude that they had "reformed." In a unique
action, the Alameda prosecutor agreed to waive publication of
the notice of intent to apply for parole.

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90 FOUNDATIONS OF PAROLE IN CALIFORNIA

Within a year, Bert Willmore was killed by the chi

police of Alameda while resisting arrest. Shortly th

(the exact date is unknown) Abe Majors, on a "crime sp
Utah, was convicted of murder and sentenced to be sh
fates of Willmore and Majors, like their earlier cases,
considerable interest and comment. One alleged result was a
move on the part of one California legislator to repeal the
parole law (Wilkins, 1918). This was resisted by the Directors,
who convinced Governor Henry T. Gage (1899-1903) to support
retention of parole. During this brief period of difficulty, the
Directors ceased to grant paroles. When they resumed, they,
not surprisingly, continued to issue paroles sparingly.
After the situation quieted down, Governor Gage proposed
that the legislature authorize parole of first-term prisoners
with life sentences, including those convicted of murder, after
they had served at least seven years. This would relieve him, he
said, of dealing with the many appeals for clemency coming
from prisoners not eligible for parole under the original law.
In nearly fifty percent of [these]. .. cases . . ., the
applications are accompanied by a petition signed by
the jury which convicted the criminal, and by a letter
of the trial judge, expressing his opinion that the
sentence imposed was perhaps too severe, or that the
ends of justice would be subserved by the liberation of
the convict (Gage, 1901: 37).

The law was amended as proposed (1901 Cal. Stats., ch. 64
at 82). The Board proceeded to grant parole to some murderers
who had earlier applied for clemency and to check with the
governor on the advisability of parole for others when the cases
were unknown to his office. By June 30, 1903, 14 murderers
were paroled, including three with life sentences; a fourth lifer
had been convicted of robbery. (The non-life murderers had
sentences ranging from 10 to 50 years.) The four lifers were
among roughly 300 with similar sentences in the prisons, but
these had served 323, 221, 212, and 102 months, respectivelyamong the longest terms. In each case, the opinion was

expressed that the punishment already experienced was

sufficient-more would be "excessive." Similar support was
forthcoming for the paroled non-life murderers, who also had
served lengthy terms.
19 Majors was later retried, convicted of murder in the second degree,
imprisoned, and eventually paroled. When paroled from Utah State Prison, he
applied for a pardon of his California conviction, claiming he was but 14 years
old at the time of his burglary conviction. It was not granted. In 1920 he was
committed to San Quentin on a charge of burglary in the second degree.

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MESSINGER, BERECOCHEA, RAUMA AND BERK 91

Gubernatorial interaction with the Board was especially
intense in the cases of lifers and prisoners convicted of murder,

but it existed in many other cases as well. And, as we shall
show, governors continued to be concerned with overall
paroling policy-as they have, indeed, to the present day. At
the same time, it seems apparent that parole took over some
considerable part of the burden associated with the exercise of
clemency. It may have reduced the flow of clemency
applications; we are not sure. It certainly reduced the number
of applications governors had to consider in the sort of detail
that a clemency grant appears to have involved. In the 1880s,
even after the new Board of Prison Directors began to screen
applications (and recommend rejection of some), governors
issued over 40 pardons or commutations yearly to state
prisoners. From 1893 to mid-1903, the first decade of parole, the

average number was radically reduced, to 13. This reduction
took place, it should be noted, while the prison population, and
thus the number of potential clemency applications, was rising,
as it has been virtually throughout California history (see Berk
et al., 1981).

Parole also reduced the proportions of "early" releases for
which governors had to assume direct responsibility. In the first
decades of imprisonment in California, clemency was frequent;
from 1865 through 1880, for example, 13.1 percent of prisoners
released (excluding deaths, court discharges, and escapes),
about one in eight, had their prison terms shortened by
executive clemency. From 1880 through 1893, with the new
Board screening clemency applications, the rate was reduced to
7.6 percent, about one in 13. The advent of parole saw a further
dramatic reduction. From 1894 through 1901 (when the law was
amended to permit parole of murderers), the rate was reduced
to 2.3 percent, about one in 46. Later years saw further
reductions, both absolutely and relative to parole.
Prisoners did not stop seeking clemency with the advent of
parole, nor did governors cease to grant it. Both became more
selective in doing so, although it is not uncommon to see parole
files consisting largely of clemency petitions transferred to the
parole board from the governor's office. Comparison of
remaining records suggests some of the principles that were
involved in differentiating between parole and executive
clemency, but it also indicates that these principles were
unevenly applied. We believe that political pressure to issue
pardons to "erase" the blots on certain prisoners' records

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92 FOUNDATIONS OF PAROLE IN CALIFORNIA

counted for much in the decision.20 Then, as earlier an

pardons provided a way of doing an important favor for
someone.

The bulk of the cases granted clemency became
increasingly distinct from those paroled. A prisoner who legally
might have been paroled was pardoned when convicting and
sentencing officials came to believe that he was not guilty. In
other cases, a statutory error had led to a sentence longer than
intended by the legislature, and the prisoners had already
served the "correct" sentence, or more. In still other cases, time
in jail awaiting the outcome of an appeal was almost as long as
the sentence finally imposed. In a few cases, clemency was a
reward for some exceptional act-such as saving the life of a
prison official during a riot. Other cases involved deportation;
still others involved prisoners not deemed suited for parole
because they were too old or infirm to obtain the sorts of
employment the Board held requisite for parole. In later years,
parole would be used to release "early" these sorts of prisoners
too. Some pardons, however, continued to go to prisoners
pleading "excessive" sentences, who are indistinguishable, with
existing data, from those paroled.21
VII

In January 1907, Governor Pardee (1903-07) delivered his
final message to the legislature. One important topic was the
prisons. From 1890 to 1900, he noted, the prison population had
risen by 73 persons, but in just the past six years, from 1900 to
1906, it had increased by 503. As the legislature would recall,
he had reluctantly sought, and the legislature had generously
provided, funds to increase the numbers of cells available. But
cell construction was going slowly. And, even were it
proceeding more rapidly, it was quite clear that the cells "will
no sooner have been completed than the State will again be
20 We looked closely at the remaining records of prisoners who were
granted executive clemency during the period 1893-1903 and were formally
eligible for parole. We compared these records with the records of prisoners
who were granted clemency during 1883-93 and would have been formally
eligible for parole in the later period. Many more of those granted clemency
after the adoption of parole were depicted by governors as having come from
families of high social status, or as having such status of their own accord.
Many more cases referred to pleas for clemency from influential figures other
than criminal justice officials. Finally, more justifications for clemency were

given per case.

21 Similarly, some of those paroled seemed apt candidates for pardons,
according to these principles, e.g., those recommended for parole by governors
because of "doubts" about their guilt.

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MESSINGER, BERECOCHEA, RAUMA AND BERK 93

face to face with the problem of [needing] more cells." What
should be done? There is a way, he said, of:

lessening the congestion consequent upon having too

many prisoners and too few cells to put them in, aside
from constucting additional prison quarters . . . [It] is
the extension of the parole system (Pardee, 1907: 17-

18).

In other words, parole could be used to shorten the sentences
of a greater proportion of prisoners.

The risk to society of such a policy will be low, the
governor maintained. Past experience showed that the Prison
Directors were able to select for parole prisoners worthy of
release from prison. Thus, of the 304 prisoners paroled since
1893, only 27 had violated their paroles. Of these, 18 were back
in prison, leaving but nine unapprehended. Those to be paroled
under a changed policy need pose no greater risk, since the use
of parole:
does not so much depend upon reformatory work as it
does upon setting men at liberty who are not really
criminals, but good men who have done bad things, as
many good men do; but some of the bad things done by

good men, are fortunately, not so very bad (Pardee,

1907: 19).

More "good men" should be found for parole. To help find
them, a position should be established at each prison, and the
person in that position should get to know which prisoners "are
well deserving of being paroled" and recommend their parole
to the Prison Directors. This will assist the Directors, who do
not have the time to locate all the parolable prisoners. In
addition, the persons in these positions will "follow, helpfully,
those who need assistance while out on parole." In the

meantime, the money appropriated for more cells won't be
wasted. There "are prisoners enough who are criminals at heart
to keep our new cellhouses full" (Pardee, 1907: 18-19).

Shortly after Governor Pardee's parting remarks to the
legislature, an Assembly Special [Interim] Committee on State
Prison Reform reported. It agreed with Governor Pardee that:
There is a method by which this congested condition of

the prison could be relieved, and that instead of

building more and larger prisons, we should have some
system of releasing the prisoners .... We refer to the

parole system. We do not believe that sufficient
consideration for the paroling of prisoners has been
given in the past ... (JA, 1907: 277-78).

Not everyone should receive a parole, of course. But excepting
the "vicious, and totally depraved," those prisoners who

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94 FOUNDATIONS OF PAROLE IN CALIFORNIA

"behave well in confinement" and have "a reasonable
for ... becoming self-sustaining in some honest and ho
occupation" should be paroled (JA, 1907: 277-78).
The committee estimated that about half of San Que
roughly 1,500 prisoners were eligible for parole, plu
200 at Folsom. But, they noted, applications for parole were
relatively few; other states were paroling many more prisoners
than California (JA, 1907: 277-79).
The committee concluded that the Board of Prison

Directors was too reluctant to use its paroling power. It
recommended that this power be withdrawn from the "men
that manage prisons" and be given to a new board of five
members, appointed by the governor; the new board would
include the president of the Board of Prison Directors as a
voting member. The committee introduced legislation to effect
this end (JA, 1907: 98, 279, 1227-28). Assembly Bill No. 1 was
passed by both houses but vetoed without comment by
Governor James N. Gillett (1907-11) on March 23, 1907

(California State Legislature, 1907: 20).
By that time, Governor Gillett had joined the legislature in
inviting the Prison Directors to use parole more frequently
than they had in the past. Why had he done this? He did not
mention prison crowding, but he did mention pardons. He had
learned that "it was impossible for the Governor ... to give to
pardons the attention they deserved without neglecting other
matters demanding his attention" (Gillett, 1911: 13; 1909: 7).
Governor Gillett took additional steps to encourage a
change in parole policy. One was to redirect a major branch of
the swollen stream of pardon applications to the Prison
Directors for parole consideration. In 1907 he had, he said:
adopted the ... rule that no person eligible to parole,
other than one establishing his innocence of crime,
should be pardoned until he has applied for and
received a parole. The advantages of this rule are
manifest. It places pardons under the merit system
removing all questions of undue influences or
improper motives. A prisoner receives his parole solely
because his prison life has been such as to justify the
prison board and prison officers in believing his
conduct outside the prison walls will be commendable,
and that he will make good in every respect (Gillett,
1909: 8).

A second step was to couple this "rule" with "an additional
incentive" to enhance the "striking . . . results attained by"
parole. Pardons would be granted upon a recommendation of
the Board of Prison Directors to "all paroled prisoners who

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MESSINGER, BERECOCHEA, RAUMA AND BERK 95

conducted themselves as honest and upright men for a period
of not less than two years" (Gillett, 1909: 8).

A third step was to replace two members of the Board of
Prison Directors appointed by the prior governor with people
who were apparent supporters of the new policy. During the
April-June 1907 quarter, following the appointment of the fir
of Gillett's nominees, the number of prisoners released on
parole exceeded that of any preceding quarter in the history of
California paroles. This increased rate was sustained. During
the following seven quarters through January-March 1909, the
average rate of releases by parole was virtually three times that
of the preceding eight quarters. Clearly, there was a sudden
and sustained increase in paroles in response to the
gubernatorial and legislative pressures on the Prison Directors
(Berecochea, 1982: 197-99).

In 1909, Governor Gillett recommended yet another
measure that would raise the number of parolable prisonersand reduce the occasions for grants of executive clemency.
"Under our laws," he said:

the only prisoners eligible for parole are first-termers.
A second termer cannot be paroled. Equal privileges
should be extended to all classes of prisoners, leaving
to the Prison Board the determination of suitability of
the particular person to receive parole. There is no
reason to believe that this board will abuse any
discretion reposed in it, and there is much reason to
expect good results from the release of any second
termers under the wise provisions of the parole laws
and regulations (Gillett, 1909: 8).
A statute was passed in 1909 making multiple termers
eligible for parole after one year in prison (JS, 1909: 207, 500,
549, 855, 1729; JA, 1909: 914, 1149, 1289). The number of
releases by parole continued to increase, resulting in a slowing
of the growth of the prison population (Berecochea, 1982: 22130; Berk et al., 1983). In the ten years from fiscal 1894 through
fiscal 1903, 155 prisoners were released on parole; in fiscal 1909
alone, the number was 188. In fiscal 1903, 5 percent of those
released by parole or discharge were paroled; by 1909, 22
percent. In 1914, the approximate end of the founding period of
parole in California, 520 prisoners were paroled; 527 prisoners
were, by comparison, directly discharged from prison. In later
years, both the numbers and proportions paroled were still
higher.
With this change in policy, parole-release necessarily
became less selective: some "criminals by nature" were almost

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96 FOUNDATIONS OF PAROLE IN CALIFORNIA

certain to be paroled, as well as many "meritorious" p
"those who, not bad at heart, have committed crime." W
change also came a felt need to provide additional assurance
that the "public" would be protected against the depredations
of those released "early" on parole. This, in turn, would serve
to move parole in California closer to the Progressive Era
vision of parole as a rehabilitative enterprise.
VIII

The fundamental move in this direction was the creation of

a bureaucracy promising control of parolees and services for
them. The first step was the establishment in 1908 of a parole
officer position by the Board of Prison Directors (BMSQ, Vol. 7,
Mar. 13, 1908: 413) at the behest of the governor (Pardee, 1907:
18-19) and the Board of Charities and Corrections (1906: 41).22
Although the position was ostensibly established, in part, to
assist the Board in locating a greater number of parolable
prisoners, the parole agent, Karl E. Hanson, was placed in the
Board's offices in the San Francisco Ferry Building across the
bridgeless Bay from San Quentin and 95 miles from Folsom-so
it is not entirely clear how, or whether, he accomplished this
task. A later account suggests that his main functions, from the
start, were to help arrange employment for parolable convicts
and to keep track of the monthly reports parolees were
required to submit (Ford, 1912: 37-38). In 1913, the parole
officer took on an additional function as he replaced the
warden in reporting parole violations to the Board.
The numbers of new prison admissions, and thus releases,
continued to increase after 1907. And higher proportions of
those released were paroled rather than directly discharged
from prison. One effect was a rapidly growing parolee
population.23 Asserting the value of parole but claiming that it
needed more resources and staff to carry out its increasingly
numerous tasks, the Board obtained a separate budget for the
nascent parole office and then got a staff of assistant parole
22 The Board of Charities and Corrections was established in 1903 to

provide oversight for all state and local charitable and correctional institutio
(Cahn and Bary, 1936: xiii-xx). It had no authority over the operations of
prisons. Its reports, unlike those of the Board of Prison Directors, generally
espoused a "Progressive" line about, e.g., parole and the indeterminate

sentence.

23 New prison admissions show an almost invariably increasing trend
during the period, from 630 in fiscal 1893 to 1402 in 1914. In 1907, fewer than
80 persons were on parole. By 1914, the number was over 600.

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MESSINGER, BERECOCHEA, RAUMA AND BERK 97

officers, clerks, and bookkeepers in San Francisco and Los
Angeles (BPD, 1910: 7-9; 1913: 9-12; 1915: 9-10; 1916: 119-24).
Meanwhile, by changing its procedures, the Board was
making it easier for convicts to apply for parole. First, in 1911
prisoners were allowed to seek parole without having secured a
promise of employment, provided that all other conditions had
been met. If granted, release on parole would be contingent
upon obtaining a promise of a job satisfactory to the warden
and parole officer-who were to report details of the job and
the person's intended place of residence to the Board.
Additional changes were the elimination in 1911 of the $25
deposit required of parole applicants; the elimination in 1912 of
the requirement that applicants publish a notice of intent to
apply for parole; a further decision that year to supply
prisoners released on parole with necessary clothing and
enough money to provide at least $5 upon release (amended a
year later to pay also for transportation to their place of
employment); and in 1913 allowing parole violators who had
been returned to prison to apply again for parole (BMF, Vol. 7:
34-35; BMSQ, Vol. 8: 480 and Vol. 9: 98, 105, 217). Clearly, the
intent of all but the last of these changes was to remove
barriers to applications by prisoners who might otherwise be
eligible but could not raise the money required. Removal of the
requirement to publish a notice of intent may indicate the
Board's decreasing concern with general public opinion about
the advisability of parole in individual cases (opinion from local
law officials continued to be solicited). The last change, which
also removed a barrier to applications for parole, may be seen
as a reaction by the Board to the increasing number of returned
parole violaters in prison, an increase traceable to the large
number of people released on parole during the previous five
years.

The beginnings of a routine parole application procedure
may be seen in the 1911 rule changes allowing prisoners whose
applications were denied to apply again after one year. This
waiting period was reduced to six months a year later. In 1913,
separate hearing calendars were established for life termers
who had served at least eight calendar years and for other
prisoners who had served at least ten ( BMSQ, Vol. 8: 430; Vol.
9: 106, 203). Parole was changing from a special privilege for
which exceptional prisoners might apply to a standard mode of
release from prison, routinely considered upon completion of a
minimum term of confinement.

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98 FOUNDATIONS OF PAROLE IN CALIFORNIA

Nor were these the only changes. As it grew, the new

parole agency began to develop a distinctive rationale for its
existence. Parole was presented as a rehabilitative system
whose success could be measured. Parolees seldom

recidivated-only about 20 percent got into trouble
than 5 percent were returned to prison with a n
commitment. One result, it was claimed, was a redu

proportion of persons committed to prison who wer

(Ford, 1912: 37-38). In prison, convicts cost the st
$200 a year; on parole they earned more than twice that
amount, and many managed to accrue considerable personal
savings. Further, it cost far more to keep people in prison than
it did to keep them on parole, by a ratio of at least five to one
(BPD, 1916: 119-20; Ford, 1912: 39-40). Also, the parole system,
said Parole Officer Edward H. Whyte, "makes it possible to
transform the men who have been convicted of crimes" from

costly prisoners into "industrious men" earning their own
living (Whyte, 1916: 3). Parole could do what the prisons could
not-enable convicts to be self-supporting.
The success of parole was said to be dependent upon hard
work performed by highly qualified people whose duties were
so complex and numerous that their full exposition in print

was precluded. The officers had to examine the parolees'
monthly reports, correspond with employers and peace officers
throughout the state, and respond to a multitude of requests
and appeals from the parolees, their families, and friends. Also,
the parole office became for many a multiservice employment
agency, helping prisoners seeking parole to obtain a promise of
employment, helping parolees who had lost their jobs to find
another, providing clothes and tools needed for work, arranging
transportation to a new job, and even securing temporary board
and lodging for those temporarily out of work. Occasionally,
the services of employment agencies were purchased for the
parolee (BPD, 1910: 7-9; 1913: 9-12; 1915: 9-10; 1916, 119-20).
Surveillance, too, was promised. It was said:
A detailed record is kept by the [chief] Parole Officer,
under a special system recently devised and put in
operation, by means of which the status, condition, and
whereabouts of each paroled prisoner can at any time
be ascertained at a glance (Ford, 1912: 39).
But, it must be remembered that there were then several

hundred persons on parole and no more than three parole
officers, and that the automobile had not yet become

ubiquitous. Further, the officers were to see their charges
personally only as their other duties would allow. Officers were

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MESSINGER, BERECOCHEA, RAUMA AND BERK 99

dependent for their knowledge of the parolees' whereabou
employment, and conduct upon monthly reports and
correspondence with employers and local peace officers.
Clearly, surveillance was then more a pretense than a practical
reality.

By the end of the development period-around 1914parole was being proclaimed as an unqualified success which
was becoming ever more effective:
[W]e are evolving better methods of handling the
prisoners' applications for parole, and determining
their fitness, and also better facilities for their
supervision while on parole (BPD, 1915: 9).

The ability of the parole office to provide services to the
parolee was said to depend upon the acceptance of parolees by
the community in general and by employers and peace officers
in particular. The widespread, mistaken belief that a parolee is
"a beast to be dreaded" must be overcome, according to parole
officials. Imprisonment, it was claimed, no more fundamentally
changes a person's nature than does the bestowal of the
greatest honors. Thus, the upstanding person who was
respected before being committed to prison ought not to be
rejected just because he is on parole. Rather, with the penalty
for crime having been paid by the period of imprisonment, the
person ought again to be treated as a human being. To do
otherwise, the argument continued, would be foolish, because
failure to accept the former prisoner is likely to result in
bitterness and despair, which might lead the person to crime.
Indeed, the promise of help from the parole system, and
acceptance by the community of parole and the parolee, were
presented as being essential: the criminogenic influence of
imprisonment could be counteracted by releasing the person on
parole, where rehabilitation might occur (BPD, 1916: 212-22;
Whyte, 1916: 1-4). There, in the community, the convict could
live under the parole rules, which were said to be "complete in
every detail and [to] cover minutely every point required to
assist prisoners on parole to rehabilitate themselves as useful
members of society" (BPD, 1916: 122).

Parole was being expanded. It had started as a partial
alternative to executive clemency and had come to be used as a
tool for controlling prison population growth; now it was
growing to include the promise of service and surveillance. But
it did not yet have a theory of individual behavior which laid
the person's criminal conduct to personal pathology that might
be successfully treated. Rather, there were among convicts in

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100 FOUNDATIONS OF PAROLE IN CALIFORNIA

prison good people-many, it was believed-who had been
subjected to exceptional tribulations that had gotten them into

trouble. Parole would allow them to be released earlier than

others convicted of similar offenses, and, perhaps with a little
help now and then, to resume their former good standing in the

community. The criminals at heart were to be left in prison;
they could do nothing good for themselves and nothing good
could be done for them. Still to come was the practice of
releasing virtually all prisoners on parole and the charge to
parole officers to complete their rehabilitation, ostensibly
begun in prison. The "rehabilitative ideal" (Allen, 1981) had not
yet arrived, but the organizational apparatus that would in time
help engender it was being put in place.
IX

This is our line of argument in brief. From the start, many

sentences imposed by local courts were felt by prisoners and
their families and friends-and even by the officials who
imposed them-to be excessive. Relief was sought by appeals
for executive clemency, the only remedy available in almost all
cases, and governors were subjected to an ever-increasing flood
of petitions. Whether the governors granted clemency or not,
they were subject to criticism. When they granted clemency,
there were suspicions of political favoritism, even corruption,
and accusations of disregard for the integrity of the law and for
public safety. Further, prisoners and others charged, and some
governors believed, that the clemency process was inherently
arbitrary. On the other hand, a reluctance to pardon brought

complaints from those whose plights would be relieved by
clemency and from their supporters. It also brought

expressions of concern from prison officials who saw prisoners
with excessive sentences as special, remediable sources of
discipline problems.
It is in this context that parole was recommended and

adopted in California. In 1880, general management of the
prisons was shifted from elected officials, including the
governor, to an appointed board. The board was carefully

defined as a "non-partisan" group of "penal experts." This laid
the ground for later transfer of a share of the governor's

clemency powers to the board. The parole law empowered

gubernatorial appointees to relieve governors of the bulk of the
burden of reducing excessive sentences, although at first it

barred parole of persons convicted of murder and those

previously imprisoned. After eight years, parole eligibility was

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MESSINGER, BERECOCHEA, RAUMA AND BERK 101

extended to murderers who had served at least seven ye

The appointees proceeded cautiously, treating parole as a form

of clemency reserved for the few prisoners whose "earl

release was supported by officials and other citizens in the
potential parolees' local communities. Throughout, the focus

was on parole as a release mechanism, designed to remedy,
however slightly and unevenly, injustices incurred in
sentencing.

Still later, parole was turned to an additional use: to relieve
the crowded condition of the prisons. This change did not come

easily, but when it did, the justification for parole began to
shift. Paroling authorities began to argue that parole would
save money by reducing the need for additional prison space.
At the same time, they said, it could assure greater public
safety than outright discharge from prison-if more parole
officers were hired. It was only when they were-after 1914,
when our intensive study stops-that support for parole as a
rehabilitative system began to submerge concern for parole as

an instrument of justice. Such support appears to have come

mainly, at first, from within the parole bureaucracy, serving to

enhance the "professional" claims of parole officers

(Berecochea, 1982).

Parole in California, then, was not begun as part of a
broader program to "rehabilitate" prisoners, as was apparently
the case in other states (McKelvey, 1977: 154-59). Nor does the
broader ideology of the Progressive reformers appear to have

been essential to its foundation (Rothman, 1980: 43-81).24
Parole was not seen or represented as designed to motivate
conformance to a rehabilitative prison regime. Although they
were familiar with this interpretation of parole, the officials

who promoted parole (and it was promoted mainly by officials)
did not believe that a rehabilitative regime existed in California
prisons, and they were skeptical of achieving one with available

or anticipated resources. In the meantime, parole had a more
pressing use. Nor was the parole-supervision period initially
24 Although Rothman (1980: 3) purports to be concerned with the

"origins" of the reforms he discusses, his descriptive materials on parole (159201 and 433-35) date from the 1920s and 1930s. By then, parole in California
had evolved away from its original form and purpose; perhaps this was true in
other states as well. (Some states, indeed, may have adopted parole in its more

"evolved" form.) Rothman (1980: 159) also treats parole as an aspect of

indeterminate sentencing, a reform that in many states, including California,
was adopted independently of and later than parole. We think it likely, from
our data, that the broader Progressive ideology influenced the later form,
purposes, and understanding of parole in California; perhaps this is true more
widely.

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102 FOUNDATIONS OF PAROLE IN CALIFORNIA

conceived of as a time when rehabilitation would take p
was, rather, the end of a determinate sentence imposed
court, not worth troubling the governor to modify in most
cases.25

Parole in California did not rest, either, upon any newfound faith that social science or increased governmental
powers would significantly reduce crime (Rothman, 1980: 4650). Although prospective parolees were studied carefully, the
object of such consideration was not to discover the causes or
cures for crime, nor to individualize sentences in light of such
discoveries. It was to learn whether the punishments imposed

by the courts were appropriate in light of justice standards
assumed to be widely shared but unevenly applied.
"Individualization" consisted in reducing the prison terms of
those inappropriately sentenced, if there were no strong

objections from the prisoners' local communities. Parole as
adopted did not increase governmental powers; it transferred to

lower officials a part of the governor's already-existing
clemency powers. The argument was that these officials were
better placed than the governor to undo error, carelessness,
and, sometimes, malevolence in the imposition of sentences by
local courts.

The adoption and early operation of parole in California is
best understood as an incident in a still-continuing
bureaucratization of the sentencing process. The problem that

parole was primarily designed to address inheres in a
sentencing process that upholds an ideal of commensurate,
equitable punishment but leaves the choice of punishment to
local officials operating under broad and vague standards.
Perception of that problem, as well as efforts to cope with it,

was present from the start of state imprisonment, which
concentrated in a single place persons sentenced by multiple

local courts and in a single official, the governor, power to
remedy it. What changed-and triggered the introduction of

parole-were the demands on the governor's time due to the

increasing scale of the system, leading to an increased number
of clemency petitions. Parole sheared off a part of the
governor's responsibilities and relocated it in an administrative
apparatus that already exercised related powers. The apparatus,
at first, was expected to do nothing new but to be able to do an

old job better under changed circumstances. Later, the
25 In a number of instances during the early years, the Directors asked
governors to commute very long sentences to shorten the parole-supervision
period.

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MESSINGER, BERECOCHEA, RAUMA AND BERK 103

apparatus was asked to perform new tasks with its recentl
received powers, namely, to control the size of the prison
population and to provide surveillance and services for
parolees. It was responsibility for these new tasks, and the

organizational changes they entailed, that encouraged the
development and adoption of a rehabilitative justification for
parole.

The foregoing suggests that inquiries into the origins of
penal reforms should be specific about the times and places
studied. The purposes that can be served by seemingly unitary
reforms like parole are diverse. Snapshots of whole eras may be
misleading about particular situations and pressures. Justice
and social protection (one version of which recommends
"rehabilitation") appear to be persistent aspirations in criminal
justice and its reform; they mark permanent tensions in what is

expected of the apparatus of criminal justice, including
imprisonment. Any penal reform, if it is to be adopted, must
appear to further, or at least not contradict, both. But
determining which is truly compelling in any given instance

remains problematic. Parole in California was adopted not
mainly to promote social protection but to promote justice,

however selectively. We think that the story to be told in other
jurisdictions may differ from what we have found in California.

Many penal reforms, like parole, are sufficiently malleable to
permit their adoption for quite different reasons.

This leads to a second lesson: inquiries into the
development of penal reforms must be alert to changes over
time in the problems of the organizations they serve. Adopted

to deal with complaints about justice, parole was turned 15
years later to the relief of prison crowding-a use continued
into the 1970s (Berk et al., 1983). When this happened, parole
became, in fact, a means for greater centralization of
sentencing-an effect not part of its original purpose. Further,
supervision, which at first was not a significant part of parole,

became important. It led to the establishment of a parolesupervision organization, centered on the parolees in the
community. This development created still further problems,
including the felt need for a revised justification of parole. As
the supervisory apparatus grew, those responsible for it began
to understand, or at least talk about, parole in a new way and

to adopt justifications for it keyed to their experiences and
interests. In time, parole came to be represented as a

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104 FOUNDATIONS OF PAROLE IN CALIFORNIA

rehabilitative program.26

Such changes have not ended. In 1977, California
introduced determinate sentencing, abolished parole-release for

most prisoners, and made parole-supervision a virtually
mandatory period of surveillance to be served when the prison
sentence expires.27 Parole in California is no longer a way of
being released from prison in advance of sentence expiration; it
is no longer a means for achieving equity in sentencing. Time

served in prison until release on parole can no longer be
manipulated to control the size of the prison population.
Parole-supervision, although retaining some rehabilitative

pretensions, is represented as, above all, a means of providing

"public safety" through "supervision and surveillance"

(Messinger and Johnson, 1978: 51). Thus, once again, parole has
been changed by dropping some former uses and emphasi7zing
others. And the end, presumably, has not yet arrived.
REFERENCES*

Unpublished Materials
The following manuscripts, registers, and other materials will be found at the

California State Archives in Sacramento:

Register of Prisoners Received at San Quentin State Prison, 1851-1914, and at

Folsom State Prison, 1880-1914.

BMSQ and BMF: Minutes of the California State Board of Prison Directors,
San Quentin Series, 1880-1914, and Folsom Series, 1880-1914.
Governors' Pardon Papers, 1880-1914.
Published Materials
ALLEN, Francis A. (1981) The Decline of the Rehabilitative Ideal: Penal
Policy and Social Purpose. New Haven: Yale University Press.
BEAN, Walton (1973) California: An Interpretive History, 2nd Ed. New York:
McGraw-Hill.

BERECOCHEA, John E. (1982) "Origins and Early Development of Parole in
California." D. Crim. Dissertation, School of Criminology, University of
California, Berkeley.
BERK, Richard A., David RAUMA, Sheldon L. MESSINGER and Thomas F.
COOLEY (1981) "A Test of the Stability of Punishment Hypothesis: The
Case of California, 1851-1970," 46 American Sociological Review 805.

BERK, Richard A., Sheldon L. MESSINGER, David RAUMA and John E.
BERECOCHEA (1983) "Prisons as Self-Regulating Systems: A

26 A rehabilitative justification for parole became more prominent after
1917, when indeterminate sentencing was introduced. Even so, the measure
was recommended primarily as an additional tool to enable the Directors to

bring about "greater equality and consistency" than resulted from the

determinate sentences imposed by the criminal courts (BPD, 1920: 6).
27 These changes came about in a move to replace indeterminate

sentencing with a procedure that would produce fairer and more certain
prison sentences. The parole change took place in the background. See

Messinger and Johnson, 1978.
* Abbreviations used in the text precede the appropriate entries.

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MESSINGER, BERECOCHEA, RAUMA AND BERK 105

Comparison of Historical Patterns in California for Male and Female
Offenders," 17 Law & Society Review 547.
BOARD OF CHARITIES AND CORRECTIONS, CALIFORNIA STATE
(1906, 1912) Biennial Report. Sacramento: Superintendent of State
Printing.

BPD: BOARD OF PRISON DIRECTORS, CALIFORNIA STATE (1880, 1884,

1885) Annual Report. Sacramento: Superintendent of State Printing.
(1893, 1909) Rules and Regulation for the Paroling of State Prisoners.
Sacramento: Superintendent of State Printing.
(1910, 1913, 1915, 1916, 1920) Biennial Report. Sacramento:
Superintendent of State Printing.
BOOTH, Newton (1874) "Message from the Governor," Journal of the Senate
of the State of California. Sacramento: State Printer.
CAHN, Frances and Valeska BARY (1936) Welfare Activities of Federal, State
and Local Governments in California, 1850-1934. Berkeley: University of
California Press.

CALIFORNIA STATE LEGISLATURE (1907) Final Calendar. Sacramento:
State Printer.

DCSP: DIRECTORS OF THE CALIFORNIA STATE PRISON (1865) Report.
Sacramento: State Printer.

(1869-70) Report to the Legislature of California Recommending the
Pardoning of Certain Convicts. Sacramento: State Printer.
(1879) Biennial Report. Sacramento: State Printer.
DOWNEY, John G. (1861) "Message from the Governor," Journal of the
Senate of the State of California. Sacramento: State Printer.
FORD, Tirey L. (1912) "Purpose, Operation and Result of the Parole Law in
California," 5 The Lawyer and Banker and Bench and Bar Review 36.
GAGE, Henry T. (1901) First Biennial Message to the Legislature of the State
of California. Sacramento: Superintendent of State Printing.
GILLETT, James N. (1909) First Biennial Message to the Legislature of the
State of California. Sacramento: Superintendent of State Printing.
(1911) Second Biennial Message to the Legislature of the State of
California. Sacramento: Superintendent of State Printing.
HAIGHT, Henry H. (1872) "Message from the Governor," Journal of the
Senate of the State of California. Sacramento: State Printer.
IRWIN, William (1878) "Message from the Governor," Journal of the
Assembly of the State of California. Sacramento: Superintendent of State
Printing.
JA: JOURNAL OF THE ASSEMBLY, CALIFORNIA STATE LEGISLATURE
(1887, 1891, 1893, 1907, 1909). Sacramento: Superintendent of State
Printing.
JS: JOURNAL OF THE SENATE, CALIFORNIA STATE LEGISLATURE
(1883, 1887, 1891, 1893, 1909). Sacramento: Superintendent of State
Printing.
LAMOTT, Kenneth C. (1961) Chronicles of San Quentin: The Biography of a
Prison. New York: David McKay Co.

LOW, Frederick F. (1868) "Message from the Governor," Journal of the Senate
of the State of California. Sacramento: State Printer.
MARKHAM, Henry H. (1893) First Biennial Message to the Legislature of the
State of California. Sacramento: Superintendent of State Printing.
(1895) Second Biennial Message to the Legislature of the State of
California. Sacramento: Superintendent of State Printing.
McKELVEY, Blake (1977) American Prisons: A History of Good Intentions.
Montclair, NJ: Patterson Smith.

MELENDY, H. Brett and Benjamin F. GILBERT (1965) The Governors of
California: Peter H. Burnett to Edmund G. Brown [Sr.]. Georgetown, CA:
Talisman Press.

MESSINGER, Sheldon L. and Phillip E. JOHNSON (1978) "California's
Determinate Sentencing Statute: History and Issues," in Determinate
Sentencing: Reform or Regression. Washington, DC: National Institute of
Law Enforcement and Criminal Justice.

PACHECO, Romualdo (1876) "Message from the Governor," Appendix to the
Journal of the Senate and Assembly, Vol. 4. Sacramento: State Printing
Office.

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106 FOUNDATIONS OF PAROLE IN CALIFORNIA

PARDEE, George C. (1907) Second Biennial Message to the Legislatu
State of California. Sacramento: Superintendent of State Printin
PC: PENOLOGICAL COMMISSION, CALIFORNIA STATE (1887) Penology.
Sacramento: Superintendent of State Printing.
PERKINS, George C. (1881) Annual Message to the Legislature of the State of
California. Sacramento: Superintendent of State Printing.
(1883) Biennial Message to the Legislature of the State of California.
Sacramento: Superintendent of State Printing.
PRISON REFORM LEAGUE (1910) Crime and Criminals. Los Angeles:
Prison Reform League Publishing Co.
ROTHMAN, David J. (1980) Conscience and Convenience: The Asylum and
its Alternatives in Progressive America. Boston: Little, Brown and Co.
SPECIAL COMMISSION OF INQUIRY, CALIFORNIA STATE (1881) Report
of the Special Commission of Inquiry into the General Administration of
the State Prisons of California. Sacramento: Superintendent of State
Printing.

STONEMAN, George (1885) First Biennial Message to the Legislature of the
State of California. Sacramento: Superintendent of State Printing.
(1887) [Second] Biennial Message to the Legislature of the State of
California. Sacramento: Superintendent of State Printing.
WATERMAN, Robert W. (1888) [First] Biennial Message to the Legislature of
the State of California. Sacramento: Superintendent of State Printing.
WETITER, John B. (1859) "Message from the Governor," Journal of the
Senate of the State of California. Sacramento: State Printer.
(1860) "Message from the Governor," Journal of the Senate of the State
of California. Sacramento: State Printer.
WHYTE, Edward H. (1916) "The Parole System in California," 7 Journal of
the American Institute of Criminal Law and Criminology 1.
WILKINS, James H. (1918) Evolution of a State Prison. Sacramento, CA:
State Library (compiled from articles appearing in the San Francisco
Bulletin, 13 June through 10 July 1918).
CASES CITED

People v. Bowers, 13 Pacific Reporter 660 (1888).
STATUTES CITED
1868 Cal. Stats., ch. 137.
1880 Cal. Stats., ch. 71.
1901 Cal. Stats., ch. 64.

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