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Managing mercy: African Americans, parole and paternalism in the Georgia prison system 1919-1945.

In 1941 Eugene P, a young African American, was paroled having served two and a half years of his three to ten year sentence for larceny. Despite four previous convictions for property offences and the fact that he had been shot while attempting to escape from a state highway camp, Eugene served less than his minimum sentence, was discharged into the care of a white employer and released from parole supervision a year later. The judge and jurors at his trial, the Solicitor General who had prosecuted the case, the local sheriff and the warden of Eugene's highway gang, who found him to be a good worker, had supported his application. (1) More surprisingly perhaps, in the same year Lester J, a 38 year old black farm laborer, from Cherokee County, was paroled from the Georgia prison system having served only five years of a life sentence for murder. Again there was no objection from either the judge or Solicitor General. Lester J had, after all, only 'killed another nigger', while the clerk of the Superior Court and the sheriff of Cherokee County vouched for him as a 'hard working Negro' who had never been in trouble before. The prison warden declared that Lester was a 'trusty' and had served on the road gang without trouble. He also had a number of dependent children to support and a respectable white employer to sponsor him. Within a year he was also released from parole supervision. (2) The early release of Eugene and Lester was hardly an aberration. Throughout the interwar years over a thousand prisoners, most of them black, were paroled in Georgia each year.

These cases of African American parolees in Georgia run against the grain of prevailing accounts of Georgia's prison system. Beginning with the pioneering exposes of Frank Tannenbaum, Robert Burns and John Spivak, Georgia's convict chain gang has, like its predecessor the convict lease system, been condemned as a harsh, barbaric and brutal form of oppression, with little thought given to rehabilitation. (3) In 1943, Georgia's chain gang was condemned by the third circuit court as "cruel and unusual punishment." (4) Subsequent historians of Southern criminal justice and punishment have understandably, given the weight of evidence, perpetuated this vision of a system, in David Oshinsky's evocative phrase, "worse than slavery." For these historians, the postbellum Southern criminal justice system was a crucial means of enforcing "racial control and labor discipline in the New South ... a powerful symbol of injustice, linking the punishment of crime and their former status as slaves." (5) Equally important, "inst itutionalized Southern justice and injustice"--arrest, indictment, conviction, hanging and long sentences to the chain gang or convict lease system-"changed little for generations." (6) Alex Lichtenstein sees an essential continuity between the convict lease system and the chain gang in Georgia. (7) It was "one more link in the chain of dependence and coercion shackling African Americans." (8) Long sentences, strict discipline, arduous labor, primitive accommodation and sanitation, poor food, high mortality rates, frequent escapes, cruel and arbitrary punishments remained the lot of the African Americans who were the overwhelming majority of the State's prison population, as they were elsewhere in the South.

Despite this grim picture there was scope for mercy. A number of important studies have explored the Southern pardon system highlighting the ways in which mercy and paternalism could "overcome legal formalism", while still binding justice to racial, class and sexual dominance. But assessments of the role and impact of pardons vary. Lichtenstein, for example, argues that pardons were a means of excusing unfortunate white convicts from having to mix with blacks and that parole was largely a matter of bribery, which clearly favored whites. (9) Similarly Litwack concludes that most convicted blacks found no refuge in pardons, and the few who did benefited from this recourse only because of the deep racist assumptions embedded in the 'Negro law.' (10) On the other hand Edward Ayers, Oshinsky, Mary Ellen Curtin and Vivien Miller have laid greater stress on the paternalist underpinning to clemency provisions. These historians have highlighted that many Southern Governors were remarkably liberal in granting pardons, and tended to listen to white community opinion. And although pardons favored whites and many were granted only a few days before expiry of sentence, some African Americans gained early release. More importantly, these historians have uncovered complex relationships in the pardon process, ones allowing blacks a measure of mercy and even agency in an otherwise repressive justice system. But mercy was conditional, stifling penal modernity, and rewarding those who worked within prescribed codes of 'racial etiquette.' (11)

Despite the legal and symbolic significance of clemency few prisoners actually benefited from its operation. Vivien Miller's comprehensive account of clemency in progressive era Florida indicates that by the early twentieth century only twelve percent of that State's prisoners, around 50 to 100 a year, secured early release through pardons. In Georgia the numbers pardoned rose from around 50 a year in the 1850s to 150 in the 1890s, and about 200 by the first decade of the twentieth century. Given these numbers it is clear that clemency was marginal to the criminal justice system. What is surprising is that historians of Southern criminal justice have largely ignored parole, which became a far more common form of early release. In part this is because parole was not universal in the South. Some States, such as Mississippi, had no parole law before World War II, and others such as Florida seem to have used conditional pardons in preference to parole before World War I. But by the late 1920s, after the introduct ion of parole, forms of early release in Georgia affected over 1000 convicts a year, more than a sixth of the convict population. (12) Moreover the parole files indicate that many convicts, including African Americans, like Eugene P and Lester J, were being released well before the expiry of their sentence and before the minimum time to be served with good behavior. (13)

Studies of the history of parole have tended to be national in focus, ignoring the complexities of Southern practices. These have tended to see parole and other diversionary programs as forms of social control to inculcate the 'discipline of industrial society' or evidence of the contradictions between Progressive ideals and actual practices. (14) One notable exception is Martha Myers' detailed investigation of patterns of prison admission, sentencing and release in Georgia from 1870 to 1940. For Myers admission and release decisions were grounded in specific social and economic contexts such as recessions, the price of cotton and urbanization. Here she argues that blacks were admitted to prison in far greater numbers, received longer sentences and were less likely to be released than whites, but that early release was available for blacks and its incidence tied to the state of the economy and the labor market. This important study highlights the relationship between patterns of release and broader social con texts but it does not investigate specific cases of release and the complex web of social and political relationships that informed parole decisions--why some were released and others remained. (15)

The focus of this study is parole in Georgia during the age of 'Jim Crow'. It examines early release from 1919, when parole began to emerge as a significant practice, until the major penal reforms of Governor Ellis Arnall in the mid-1940s which abolished whipping, shackles, leg irons and chains and began the process of dismantling the public work camp system. (16) The article proceeds in four parts. First it examines the reasons for the introduction of parole, the problems in the administration of the system and the increasing resort to early release during the interwar years. Secondly it investigates the processes involved in obtaining parole and the factors influencing the decision to grant early release. Here the focus is on issues such as the release of aged and diseased convicts and the 'parole racket'. The next two sections explore different dimensions of mercy and how it functioned through the parole system. Parole was used by the criminal justice system itself to correct what were seen as miscarriages of justice. The mercy of legal and penal authority served to maintain an intricate theater of justice in Georgia. Parole also offered an opportunity for white employers to obtain cheap labour. Underpinning these forms of mercy was a widespread belief that certain types of African American crime were insignificant. White Georgians, like many Southerners, were relatively tolerant of blacks who committed crimes against other African Americans and actively supported the early release of prisoners whose only crime was a 'Negro affray'. In supporting merciful early release whites imposed social and economic obligations on those African Americans who were the beneficiaries of their largesse.

Thus during the height of segregationist legislation and practice, the evidence for mercy and paternalism as key parts of Georgia's convict system stands to challenge some prevailing accounts of Southern criminal justice and penal discipline. In his excellent study of the political economy of the convict system Lichtenstein argues forcefully for seeing the lease and the chain gang as crucial elements in Southern economic modernization. (17) But the lease and the gang were not just economic relationships; they were also embedded in larger cultural, legal and social ones. In this context mercy was a crucial component of Georgia's criminal justice system. This does not mean that we should now revise the picture of the brutality of Southern penal systems. On the contrary this article attempts to show that mercy and brutality, as in eighteenth century England, worked hand in hand to cement intricate social bonds of authority and deference. (18)

The wider system of which the chain gang was a part was both economically modern and, as Lichtenstein acknowledges, socially backward looking and conservative. But Lichtenstein assumes rather than investigates the social impacts of Georgia's prison system. While the chain gang may have facilitated new economic relations, parole helped maintain older economic relationships and traditional social ethics, habits and customs that underpinned forms of Southern authority. Here the emphasis of Ayers, Oshinsky and Miller on paternalism offers a clue as to how parole worked to cement a 'restrictive social order.' (19) Blacks knew that to commit crimes or challenge white authority in any way risked a severe beating, lynching, or conviction and the chain gang. These were harsh realities. But given the number of blacks released on parole during the 1920s, 1930s and 1940s, it is likely that many African Georgians also knew that if they were obedient, deferential, hard-working and on good terms with local whites, they migh t, if caught within the criminal justice system, benefit from a measure of mercy. For black families white paternalism offered a small window of opportunity to assert some agency to mediate the harshness of the criminal justice system. The price of this agency was social and economic indebtedness, in extreme cases peonage, to white masters. Far from being the antidote to brutality, mercy was its support. Indeed, mercy was one of the main ways Southern paternalism, born on the plantation, perpetuated itself, well into the twentieth century.

I

By the 1880s Georgia's convict lease system, like its counterparts elsewhere in the South, was under attack from both Northern and Southern reformers. Newspapers, national prison associations, churches, populists and progressives all condemned the system as shameful, wasteful and contrary to the spirit of penal reform. (20) By the mid-1890s governments responded to the criticisms of reformers shoring up the legitimacy of Southern justice. In Georgia one of the Governors first initiatives was to establish a board of three Prison Commissioners, in 1897, to oversee the prison system and to advise on pardons. (21) The Commissioners faced a difficult political task. They felt obliged to defend the lease system to deflect criticism from the Governor and the Assembly and reassure voters. But it is also apparent that they felt compelled to do something to address the claims of reformers. In 1898 they introduced new rules to ensure regular inspection of convict camps and Milledgeville State Farm. (22) They pointed to "humane treatment" but in the same breath protested the "sickly sentimentality" which tended to "exaggerate and senstionalize 'prison horror."' (23) The Commissioners rebuffed other critics, declaring that convict labor was reformative, productive, humane, "in keeping with the best modern prison systems" and in accord with principles of "good government," which decreed that for the "protection of the few" the burden of taxation for the many should not be onerous, unlike New York "where prisoners were largely idle and the burden of taxation heavier." (24)

Part of the Commission's duty was to advise the Governor on the desirability of releasing convicts or commuting their sentence. This had always been open to the charge of corruption. Critics accused Governors of using their clemency powers in an arbitrary fashion, favoring political allies. Again the new Prison Commission felt obliged to defend the pardon system, declaring it "the equity of the criminal law... the correction of that wherein the law by reason of its universality is deficient." Further, it was the way in which the efforts of the individual to reform could be rewarded. A just criminal justice system needed an "element of hope," after all "who can tell when the angel may descend and stir the waters." Remove clemency powers they concluded, and "you take away the strongest inspiration to reform and substitute despair." (25) The Commission assessed the worth of the petition, the character and behavior of the convict, and the likely response of local communities to a decision to release or commute se ntence, voted on the matter and then presented their findings and recommendation to the Governor for a final decision. (26)

Pardons and commutations, however, only affected a small minority of the convict population. Of greater significance was the parole system, introduced in 1908, the same year as convict leasing was abolished and the chain gang introduced. Georgia was certainly not in the forefront of parole reform in America. Almost half the States had parole laws by the end of the nineteenth century. (27) Certainly parole was an effort to demonstrate to critics that Georgia was moving in accord with modern penological opinion. It was also a way of further removing the Governor from charges of cronyism when it came to decisions about release, by giving much greater power to the Prison Commission. But in the minds of Georgia's legislators and Prison Commissioners, there was an essential connection between pardon and parole. This is evident in both language (parole was sometimes referred to as "conditional pardon") and principle. According to the Prison Commissioners, parole was there for precisely the same reasons as pardon, to enforce "just law in the spirit of humanity" and to correct the "errors" of the courts when evidence of miscarriage of justice came to light. (28)

Despite the 1908 reforms, the parole system struggled to gain legitimacy in its first few years. Within a year the Prison Commission was beset with complaints from clerks of superior and county courts about the added record-keeping burden. (29) The Commissioners themselves had problems with the parole law. While they commended the fact that parole allowed them to correct "inequities of punishment," the Commission felt that they needed greater flexibility to "correct wide variations in sentencing by judges." With the system of fixed sentences determined by judges the Commissioners felt bound to meet community expectations that the declared sentence, with time off for good behavior, be served. The Commissioners instead urged the introduction of the indeterminate sentence system, which would allow juries to set wide minimum and maximum sentence provisions, facilitating greater discretion in parole and release decisions, according to the chances of success of a prisoner in reintegrating into the community. (30) I ndeterminate sentences for felony offenses were introduced in 1919, although there were strict guidelines about their use and provisions that no one could be paroled before twelve months of their sentence had expired. The impact of these reforms can be seen in the statistics on pardon and parole.

The immediate effect of the parole law was a dramatic decline in the release of convicts. In the early 1900s between 200 and 300 convicts were pardoned each year. After 1908 there was a rapid fall in the number of prisoners granted early release, largely due to the opposition to parole from local officials and the caution of the Commissioners in implementing a new scheme. In 1910 only 23 convicts were pardoned and a further 49 paroled. By 1915 this had risen to 76 paroled and three pardoned, still well short of the numbers granted early release before the introduction of parole. But the new indeterminate sentence system had an immediate impact. In 1920 the numbers paroled nearly trebled, to 199. And by 1924 the Commission pardoned 68 prisoners, paroled 178 under the old system of fixed sentences (those sentenced before 1919) and paroled a further 502 under the new indeterminate system. The practice of parole was well established by the late 1920s. In 1929, 222 convicts were pardoned, 206 paroled under the old system and 1,062 under the indeterminate system. At the same time 495 were discharged due to expiry of sentence. In all 1,985 convicts were released from the system, our of a total convict population of 6,871, more than a quarter of all convicts. With the onset of the Depression recourse to parole was even greater and continued to rise through the late 1930s and into the 1940s. (31)

By the late 193 Os parole had gained a legitimate and secure place in Georgia's criminal justice system. The chain gang was not just a brutal hell of hard labor and cruel punishment, from which there was no relief other than death, escape or eventual expiry of sentence. It was certainly this for the majority of convicts but there was a chance of respite and each year a significant minority walked away from this hated institution. The Prison Commissioners worked on the basis that convicts should serve at least a third of their sentence before being considered for release. Although the law prescribed three years before the possibility of release for life sentence prisoners, the Commissioners favored waiting at least ten years. (32) But these were only rough guidelines. There are numerous instances where the Commissioners released men well before one third of their sentence expired, even African Americans, as the file of Lester J demonstrates. But it was certainly obvious that white convicts benefited disproport ionately from the decisions of the Commission.

Time and again white convicts were released months if not years before the expiry of their minimum sentence with good behavior, often serving only three to four years for murder. Typical was Stanley R, who received three concurrent sentences of four and a half years for passing bad checks in 1932. Stanley had two previous prison terms for property crimes, but came from a 'good family'. He was paroled within a year. (33) In 1938 Norman S was charged with murder, after killing a man he was trying to rob. But local citizens lobbied to have the charge reduced and he was convicted of manslaughter, sentenced to five years and released after a year. (34) Only in very extreme circumstances, when the behavior of the convict on the gang was refractory or when the crime was particularly heinous did whites wait years for release. Robert G had to wait 12 years before he was released from a life sentence in 1941, as he had brutally killed a respectable and highly regarded storekeeper. (35) Locals opposed the release of Col in D, a white convicted of murder and sentenced to life, because "he came from a very bad family." He had to wait ten years, until 1944, for parole, far longer than some African Americans. (36) In 1933 Walter M was convicted of murdering a young orphan to profit from an insurance policy and sentenced to life. The Solicitor General considered this as one of the worst crimes he had prosecuted and Walter "a hardened criminal, defiant and uncooperative" and "unworthy of consideration for clemency." Walter was not paroled until 1942. (37)

African Americans, however, despite the overall decline in the black population during the interwar years, due to lower fertility rates and migration to the North, were still admitted to prison at a much higher rate than whites (20 in every 10,000 of the black population, in comparison to 4 in every 10,000 of the white population). By the 1930s blacks were two thirds of Georgia's annual prison population of 8,000 to 10,000. As Martha Myers has shown, during the interwar years the average prison sentence was longer for black than white offenders, although this was largely due to harsher sentences for property crimes. Moreover whites served, on average, less than a third of their sentence, while blacks served two fifths of their sentence. Whites undoubtedly received comparatively liberal treatment in the parole system. But during the interwar years the rate release of African Americans, particularly through parole, outstripped that of whites. To understand why requires an analysis of how parole worked. (38)

II

The petition, the traditional means by which convicts and their families had pleaded for clemency, was also the basis for most successful parole applications. (39) A petition, of course, did not guarantee success, but it did ensure that your case would be considered. The forms the Commission established for parole addressed criteria such as, is he worthy of parole? Will parole be compatible with the welfare of society? If paroled will he become a menace to society? On parole will he have satisfactory employment? The process of gaining early release created a complicated and intriguing paper trail. The warden of prisons was contacted for information on the convict's behavior on the chain gang, or in a few cases on the State Farm. The warden, in turn, asked guards and chain gang overseers. By the 1930s there was a form letter for such information, encapsulating the type of questions that had traditionally been asked: has he obeyed all prison rules since confinement in your camp? Does he get along with other inm ates? Has he become sufficiently stabilized to be given parole? Appropriate answers to these questions were required for a parole petition to succeed. It was also standard procedure to ask the opinion of the trial judge, often members of the jury, the Solicitor General, the clerk of the court, the sheriff from the local county, the local tax commissioner, and the police. Many of these officials also asked prominent citizens for their views on the merits of the case. The community was also formally consulted. All recommendations for parole were posted in the local courthouse for thirty days, to allow sufficient time for any citizens who wished to protest this recommendation to do so before a final decision was made. (40)

Petitions came from a wide range of sources. Almost all engaged in forms of supplication through story-telling, seeking, as Natalie Zemon Davis has argued, to create an alternative narrative of events and circumstances, one that explained away guilt or testified to a transformation in the convict, justifying mercy. (41) In Georgia petitions were usually supported by testimonials (letters of support, signatures, recommendations) to the 'truth' of the narrative. The most common petitioners were obviously prisoners themselves and their families. Convicts often pleaded their case, usually expressing contrition and claiming that they had reformed. When Eugene S explained that "I realize I committed a grave indiscretion ... I am absolutely sure that I can rehabilitate myself," he was utilizing a common petition strategy--first attempt to minimise the gravity of the offense (an indiscretion, a fit of passion, the evil of drink, provocation) and then claim to have seen the error of your ways. (42) More commonly famil ies petitioned on behalf of prisoners. There are numerous instances of mothers, fathers, wives, brothers and sisters pleading for the release of their relatives. Sometimes these family letters came without other signatures or supporting documentation, and such cases rarely succeeded. Most petitions were signed by groups of people; sometimes only a few but there are a number of petitions in the files with 500 or more signatures. Other petitions were accompanied by formal letters of support from such people as ministers of churches, prospective employers, former employers or local 'worthies'. The aim was to impress on the Commissioners the fact that release was widely supported within a community. But what constituted 'the community' was a crucial issue. Letters from African Americans rarely counted for much. What was required was support from whites, and most importantly whites with solid reputations as citizens. Here statements such as "I've found him to be a steady worker, reliable and trustworthy in every r espect," "exceptionally high character for his race" or "hard working humble darkie" were common. (43) These claims may have been saturated in paternalist condescension, but it was a frame of reference that had great appeal to the Commissioners making the decision to release.

Thus African Americans in the prison system who sought a measure of 'justice' or mercy' had to involve themselves and their families in complex relationships with whites to have any chance of parole or pardon success. Many whites were prepared to act in this capacity. There are thousands of letters of support from whites in the files, as well as many favorable assessments of African American convicts from prison wardens, sheriffs, clerks of the court, tax commissioners and police. Given the reputation of chain gangs, support from wardens and gang 'bosses' are perhaps the most surprising. But statements such as "pleasant, intelligent fellow, admits to crime, and full trusty" or "always willingly performed the duties required of him" are common. (44) Recommendations from local officials were, for all their condescension, often equally praising. What particularly impressed the Prison Commission were claims from sheriffs, clerks of the court and police that a black prisoner before conviction was "industrious, con tributed most of his earnings to his parents," "was well liked by the white community," "was a hardworking Negro, never been in trouble before" or "rather a favorite among his white neighbors." (45) But former employers and officials did not always support petitions. Sometimes they opposed release claiming that the convict was a "bad apple, would drink and loaf," "should have been electrocuted," "definitely does not want him back," or "very black Negro man, sullen disposition, a very mean looking fellow." (46) Such opinions helped to sink a petition.

Not all petitions, however, came from families and friends. Some came from white citizens on their own initiative. In 1923 the superintendent of the chain gang in Twiggs County, was one of the petitioners for the release of Ed A, convicted of murder and sentenced to life in 1913. The superintendent claimed that Ed was "an exceptionally good Negro ... always at his duties and one could trust him anywhere under any circumstances." He offered to be his sponsor and employer if paroled. (47) In 1940 the clerk of the Superior Court saw fir to sign an affidavit claiming that Ben S, a black, convicted of manslaughter and sentenced to 18 to 20 years in 1936 was, on the evidence, not intending to shoot the deceased. Ben was paroled as a result of this affidavit, especially after the warden testified as well to his good behavior on the gang. (48) More remarkable are instances where the victims of a crime requested parole for the prisoner. There are a few of these in the files but the most extraordinary is the case of Ed ward S a 14 year-old black convicted in 1937 of sodomizing a white boy. Not only did Edward escape a lynching, but also three years after the conviction the victim's stepfather and the victim requested parole for Edward on the grounds that "three years was enough ... and this young member of the colored race should be given another opportunity." Edward was paroled. (49)

Nonetheless we need to be cautious about taking the statements of families, citizens, judges, juries and officials at face value. There is some evidence to suggest that parole and pardon formed part of a 'racket'. Robert Burns, in his famous account of his escape from the Georgia chain gang, pointed to the prisoner belief that there were only four ways to get off the gang--"Work Out, Die Out, Run Out and Pay Out." He spent considerable time documenting the travails he faced trying to 'pay' lawyers and Prison Commissioners to grant him a pardon or parole. There are reasons to be sceptical of this account, not least the 'fees' he describes. (50) But there is certainly abundant evidence in the files that a significant proportion of all petitions, nearly half, were presented by lawyers acting on behalf of convicts and their families. Moreover some lawyers were indignant when their petitions failed, claiming that they were being punished for not being 'part of the racket.' (51) Lawyers were often responsible for c ompiling much of the evidence that resulted in a decision to release the prisoner. They contacted the judge, jury members, the Solicitor General, local sheriffs, clerks of the court, police and prominent citizens in the hope of getting their support for release. It was the lawyer who usually obtained signatures for the petition and he was also responsible for obtaining a sponsor to guarantee employment for the prisoner after parole.

All of these things were essential for a favorable ruling. And there is no doubt that families had to bear a considerable financial burden to gain such assistance. This made things difficult for poorer African American families but many were more than prepared to assume this debt to obtain the release of relatives. Some families had to pay an up-front fee, other prisoners pledged a proportion of their wages after release to pay their debts. This practice was well known and accepted by the Prison Commission. This is very evident in the case of Joe A, a black, convicted of burglary and sentenced to 10 to 15 years in 1921. His original application for parole, only supported by a letter of recommendation from his former employer, was rejected in 1924. Later a lawyer agreed to take on the case for a fee of $250. He succeeded in obtaining release in 1925. But soon after the lawyer wrote to Joe, threatening to "have the Governor revoke your parole ... AND I DON'T MEAN MAYBE," unless the fee was paid in full. In the end the Prison Commission actually intervened on Joe's behalf, writing to his employer and demanding that he pay Joe a higher wage as it was impossible to repay a lawyer on an income of $5 a month. Moreover, it explained that the employer should expect to pay a fee to secure someone's parole and that it was their responsibility to come to an arrangement with the lawyer "for payment of what this Negro owes him." It is impossible to gauge how widespread was the practice of employers paying lawyers to secure parolees, but here there was at least an expectation that the 'parole racket' involved financial obligations on many sides. (52)

The low wages paid to Joe A, however, highlight another significant dimension of the parole 'racket'. It points to the possibility that employers sought to sponsor parolees in order to obtain a cheap labor force. The ways in which parole might be another form of peonage will be explored in greater detail below but some evidence suggests that this was indeed the case. John Spivak's novel Georgia Nigger (1932) based on his extensive observations of the chain gang, points to some dimensions of the racket. Here the local Sheriff on a misdemeanour charge arrests the central character Dave in order to provide a local planter with workers for his harvest. The planter paid the fine of the convicts and then contracted them to pay off the fine through work. But poor pay and exorbitant interest rates meant that the men remained forever indebted and subject to the ruthless discipline of the master. Spivak's book suggests that there may have been rackets to exploit black labor at all levels of the criminal justice system, rackets amounting to forms of peonage, outlawed by Federal statute. (53) Other evidence suggests that African Americans were well aware of the 'Faustian' bargain involved in some release arrangements. The material is very fragmentary, for although many black autobiographies, oral histories and letters have appeared in recent years few focus on problems of prison release. A notable exception is Nate Shaw's All God's Dangers (1974) which has a large section devoted to Shaw's imprisonment in Alabama in the 1930s and 1940s, after becoming involved in the Sharecropper's Union struggle for black farmers to remain on the land. Shaw was arrested after a confrontation with local deputy sheriffs and sentenced to twelve to fifteen years. Unusually, Shaw was determined to serve his full sentence to ensure that he came out a free man, beholden to nobody, unlike his friends Leroy Roberts and Ches Todd, who accepted parole to escape the horrors of the chain gang. Roberts even agreed to be released to Mr Watson, the white f armer responsible for the attempts to throw them off the land in the first place. Roberts foolishly, in Shaw's view, placed his entire family under 'Watson's administration' to escape prison and "suffered for it." (54)

The full dimensions and extent of practices of fee paying for signatures, fees for obtaining parolees for employers and liens on a parolee's wages to pay legal fees will never be known. But it does seem clear that such practices did occur. For historians it certainly means that we cannot take the statements of support for parolees as necessarily 'truthful' accounts of their character and reputation in local communities-they were all part of the craft of petitioning for mercy. Nevertheless the fact that some lawyer petitions were rejected indicates that the Prison Commission was not blind to the existence of the racket, quite the contrary. They did their own investigation, checking with local officials and with judges and juries. The Commission asked local officials to give their summation of the character and prospects of the parole applicant. And by the late 1930s the Commission was employing its own 'investigators' to compile reports on the character, employment history and family circumstances of each pers on considered for parole. (55) Most importantly the files contain conflicting opinions. Lawyers may have assembled an impressive portfolio of recommendations, character references and statements of support, not to mention a sponsor. They also often secured the assent of judges, juries, sheriffs and police. But just as often there are statements from sheriffs, judges, tax commissioners, police and other locals opposing parole, countering the recommendations gained by the lawyer. Certainly it greatly increased the chances of success in applying for parole if a lawyer compiled and pleaded a convincing case. But there were checks and balances to ensure some responsibility and accountability in the decision-making process.

The Prison Commission may have acted to ensure that only 'deserving' cases were paroled, but a number of factors weighed on their mind when it came to making such an assessment. Some of these had less to do with 'justice' and 'rehabilitation' than more pragmatic and expedient concerns. Age, debility, poverty and illness were often factors that led to a favorable decision. James B had been convicted of a particularly vicious murder in 1930. Repeated requests for parole were made and denied over ten years, but, in 1941, the prison doctor reported that he had cystitis, arthritis and hypertrophy of the prostate, was physically unable to do manual labor and was possibly close to death. He was immediately paroled. (56) More commonly the Prison Commission took into consideration the family circumstances of applicants for parole. Aged parents, impoverished families without breadwinners, and young children to support were crucial issues. The wife of Reese A gave birth to a child two months after his conviction for lar ceny in 1925. She had no means of support and Reese had his sentence commuted to time served. (57) In 1932 James R was serving one to five years for larceny. A pastor at the local Mt Zion Church wrote to the Commission urging his parole as his father was dead and his mother had eight children to support. James, her eldest, was her only means of support before his arrest. The family was in dire circumstances and even though James had seven previous convictions he was paroled. (58)

Petitions were the basis for any successful parole application. And the chances of success for any petition depended almost entirely on support from respectable white citizens. It certainly helped if African Americans could link up with a lawyer prepared, for a fee, to organise their petition and plead their case. So black families knew that there were avenues for engaging with the legal system to gain the early release of male relatives convicted of crimes. This meant either establishing good relationships with local whites or paying a lawyer to organise expressions of support from prominent white citizens. At the same time prison authorities had no desire to be responsible for diseased and ageing prisoners. Parole offered a solution to such problems. This capacity to exercise merciful early release also solved other problems in the administration of justice.

III

When the Prison Commission discussed the virtues of parole it invoked ideas of mercy and clemency. These were the means of correcting 'errors' in the administration of justice. Mercy was the safety valve to maintain the legitimacy of the legal system and a means of displaying the power of the law to safeguard justice. An integral part of the parole system in Georgia was the capacity it afforded to judges, juries and prosecutors to exercise authority after the conviction of offenders. A distinctive type of parole petition came from judges and juries who wished to reconsider the decision of the court. Willie R was a 25 year-old African American convicted of manslaughter in 1940 and sentenced to three to five years. After the trial the jurors petitioned the Prison and Parole Commission stating that they "did not want to repudiate our verdict" but they did feel that there were "elements in the case that recommend him for parole." They argued that it was merely 'a Negro affray', "the evidence was not entirely sati sfactory" and he "was not a dangerous man." They recommended parole, which was supported by the sheriff, the clerk of the court, the chain gang guards and his former employer. It was an effective petition. Willie was paroled five months after his conviction. (59) Judges also saw fit to inform the Commission of 'miscarriages of justice'. The judge in the trial of John M, a young black convicted of voluntary manslaughter in 1941 and sentenced to five to ten years, wrote to the Commission stating that "I was surprised when he was convicted, there is reasonable doubt about his guilt... he should have been acquitted." The Commission acted quickly. John was released within seven months of his sentence. (60) In fact there are a revealing number of cases in the files (six percent of the sampled cases) where judges and juries wished, sometimes on their own accord, mote often in response to a petition, to reconsider their verdict.

When Governors, judges and juries sought to reconsider the verdict or sentence of the court they invoked the idea that sometimes 'justice' could be in error. They appealed to a higher justice, 'real justice', both above the law and at the same time grounded in accepted notions of what was fair. In more practical ways these were means by which judges sought to rectify what they saw as wrongful convictions by juries, instances where defendants received inadequate legal representation or where the accused had been persuaded to plead guilty when the evidence was circumstantial. Alternatively, when juries petitioned for release of prisoners, they were usually appealing against the harshness of the sentence imposed or the fact that they had felt pressured to convict. Similarly police, prosecutors and local court officials used or supported petitions for parole when they felt that a miscarriage of justice had taken place.

Parole and pardon offered a way out of these dilemmas. They were a means to achieve 'justice'. And the petition often put the case in precisely these terms. In 1915 Albert B, a young black was convicted of trying to shoot someone. The jury, however, made a recommendation for mercy declaring that "justice will be served if he was convicted as for a misdemeanour." The judge felt obliged to deliver the usual sentence for such a crime, for fear of setting a precedent, and handed down a sentence of three years. Afterwards both judge and jury recommended clemency and he was paroled within a year. (61) When Lamar C was convicted of manslaughter in 1919 and sentenced to fifteen to twenty years, the trial judge wrote to the Commission arguing that he had been convicted on the evidence of two very untrustworthy witnesses. More stridently he asserted that the evidence of the State appeared to be 'a frame-up.' Remarkably the jurors, the Solicitor General who prosecuted the case, a Georgia Senator, the local sheriff, cler k of the court and a large number of citizens all supported the judge's recommendation. He was paroled after three years. (62) Similarly all of those involved in the conviction of Richard D on a charge of robbery in 1927 were convinced of his innocence. Richard was identified by a woman as the black who snatched her bag late one evening. A witness confirmed this identification. Richard was convicted and sentenced to ten years. But the police claimed that he was "a hard working Negro who had never been in trouble before." Moreover the bag had been snatched on a dark and very rainy night making identification difficult. Richard had been found in a bar three blocks from the scene of the crime, completely dry, and, according to police, it was "impossible to run three blocks from the robbery to the bar without getting wet." Everyone involved in the case, judge, jury, Solicitor General and the police concluded that his guilt "was very doubtful." He was paroled after two years. (63)

The fact that in some cases those administering justice had reservations about the reality of guilt points to deeper structures in the practice of justice in Georgia. It suggests that judges, juries, police, prosecutors, defence lawyers and court officials were party to a peculiar 'theater' or 'social drama' of justice. (64) This was a very different dramaturgy to that of eighteenth century Britain, where mercy was a public display of beneficence in the courtroom. (65) In Britain judges arbitrated on the fate of the convicted during the trial and used their powers of mercy to demonstrate the majesty of the law to a wider populace. In twentieth century Georgia, however, the courts enacted a performance designed to impress on the public the certainty of conviction and punishment. Some offenders were convicted on the flimsiest evidence, a fact admitted by judges and juries, but the ritual of conviction was central to the court system. Once this social performance was over, however, the actors then sought to tidy up the lose ends and ensure that 'real justice' was done. The Prison Commission was the means to this end. In the intricate and extensive correspondence that occurred after many convictions, judges, juries, prosecutors, police and other officials, freed from the constraints of their roles as enforcers of law, sought to arbitrate on justice after the fact. Thus law enforcement could be seen to be harsh, punitive and deterrent, and at the same time principles of mercy, implemented through pardon and parole, could ensure a 'just' outcome. Here mercy was essentially private, bureaucratic, face-to-face, impressing on released convicts and their families, as well as locals who came to know of the fate of fellow African Americans, the fact that they had benefited from the compassion of white authorities.

The capacity of mercy to ensure justice was a powerful symbol of legitimate authority. In practice, however, correcting 'miscarriages' of justice accounted for only a small number of paroles each year. Even those who were released after a petition from a judge or jury had to have an employer willing to sponsor them. Central to the parole system was the idea that the community (meaning the white community) were prepared to accept the convict into society again. The engine for the dispensation of mercy was economic need. Whites supported parole because it suited them.

IV

By the late 1920s, and thereafter, significant numbers of blacks, around a thousand a year, were successful in their petitions for release. As we have seen, some whites were being paid to support recommendations by lawyers. Many of the letters of support do have a formulaic quality, which suggests that they were not genuine but in fact written by lawyers. But many letters, recommendations and petitions, the majority in fact, were clearly not form letters. They were direct, personal, heartfelt and filled with specific and precise details that suggest they were genuine. Nevertheless, clearly they were written for a purpose. These overtures were crafted in the hope of persuading the Commissioners to grant parole. The most important element of this rhetorical mode was the claim that the prisoner was 'a good worker'.

Employers needed cheap labour and made this abundantly clear in many petitions. A number of petitions came straight from employers requesting a worker. Men whose wife or current domestic servant was ill required black housekeepers. (66) Many others just needed experienced hands to work the land, in the absence of other laborers. (67) In response to one application for parole in 1942, the trial judge explained that he had in the past "endorsed the application for parole on account of the labor conditions in the country." (68) In some instances employers asked men of influence to write to the Commission to support their case. In 1941 a Georgia Senator wrote to the Commission explaining that Mr M "is one of our best citizens... and very much in need of a farm hand." (69) There are even indications in the files of the cronyism that had born the brunt of past criticism. In 1926 a Governor's aide wrote to the Governor concerning the case of Leroy A convicted of a driving offense and sentenced to 10 months. His form er employer, Mr F, had petitioned for his release as he (the employer) was sick and needed his 'old servant' back. Mr F's sons, according to the aide, had "spoken to the Governor" about the case and the aide was following up to ensure that a decision was made "to day before you leave town." The man had his sentence commuted to time served. (70)

The most common request was for farm laborers. Here we can see why employers were prepared to pay lawyers a fee. It was a means of securing essential labor in times of difficulty, when labor costs were high or when there were insufficient workers to bring in a harvest. But parole was not the preserve of rural interests. Although the organisation of the evidence makes systematic analysis difficult, a quarter of parole cases sampled came from counties around Atlanta, Augusta and Savannah. Here urban employers, often shopkeepers, mechanics, the operators of small foundries and workshops, but sometimes owners of larger workshops and factories, sought African American workers. By the mid-1940s the rate of urban employers seeking convict labor had risen to a third of all cases sampled. In both urban and rural situations parolees agreed to work for low wages for the duration of their supervision in order to secure sponsorship. Parolees were an available and cheap source of labor exploited by many employers. But the extent of demand amongst urban employers indicates that paternalism was not just a relationship specific to the land, a means of maintaining an older way of life, but rather a pervasive ethic in Southern culture. (71)

Given the connection between a demand for labor and the granting of parole it would seem logical to conclude that parole statistics reflected broader conditions in the labor market. John Dittmar and Mary Ellen Curtin have both explored how law and punishment fostered forms of peonage. Employers monitored courts offering to pay fines or sponsor release for convicts in return for agreements to accept low paying employment as servants and laborers. (72) These practices flourished during times of labor shortage. During the 1940s, as both white and black labor signed up to serve or work in war industries, the Prison Commission itself admitted that due "to the drain of industry on farm labor... we have considered as many cases as possible to help the war effort." (73) This in part explains the extraordinary liberality of parole decisions between 1942 and 1945. Large numbers of serious offenders, many with life sentences, were being paroled after as little as a year to ease the labor shortages for farmers and urban employers. Only this context could explain such cases as Douglas J, a black convicted of murder and sentenced to life in October 1941. Despite the opposition of the trial judge, Douglas was out by January 1943. (74)

What is more surprising, however, is the increased resort to pardon and parole in the interwar years, particularly in the 1930s, at the height of the New Deal. In 1935, for instance, 3016 convicts were pardoned and paroled, almost all to employers, 35 percent of the entire convict population that year. (75) But these were years of significant unemployment, exacerbated by New Deal policies to boost efficiency in the rural sector. The increasing use of mechanization on farms reduced the demand for labor and fuelled significant migrations of black sharecroppers and laborers and their families from country regions to Southern cities and from the South more generally to the North. (76) A number of theorists have argued that there is a link between the state of the labor market and levels of incarceration. (77) In times of high unemployment rates of incarceration generally increase, and certainly the numbers admitted to Georgia's prison system rose in the 1930s. But parole and pardon rates rose even more sharply. M yers points to this contradiction, suggesting that it was a means of alleviating the financial burden on the government and the counties arising from increasing admissions. (78) This seems persuasive but the question remains as to why some were released and others remained imprisoned. Urban and rural employers were always on the look out for cheap and 'honest labor'. Of course it made good sense in hard times for employers to seek laborers who would work for even less than the already depressed market rate. Some white planters may also have held out against the onrush of mechanization, preferring the time-honored methods of labor exploitation. Others may have found themselves short of labor as local blacks migrated to the cities and the North in increasing numbers. Farmers sponsored black convicts, often former employees and sharecroppers, whom they knew to be loyal and hard working. Thus parole helped sustain the Southern planter class in their dying days and helped support the emergent urban small business class through some of its most trying times. Despite claims that Southern paternalism declined after 1900, eroded by segregation, labor dissent, lynching, urbanization and economic modernization, in rural and urban areas some masters used the mercy of the parole system to cement old relations of deference and obligation in black laborers. (79)

Not every black was suitable. Employers wanted reliable workers, and men whose crimes were not considered serious. Few involved in the criminal justice process had any doubts that the majority of persons convicted were guilty. The petitioners for release occasionally questioned the verdict of the court but more often invoked other principles of justice and fairness in making their case for mercy. The most common claim was that the prisoner had served long enough and that "justice had been done." There were variations on this theme but they all carried a similar message. Claims that men had "served long enough for their crime," "had been punished enough" or "had learned their lesson" were common. Such statements also give us an insight into perceptions of what was a serious crime and how the 'Negro law' operated. Under this 'law' it was commonly believed that blacks could not be held responsible for certain crimes or that culpability was diminished. (80) Cases of blacks raping black women rarely occasioned whi te community outrage. (81) Even cases of property crime, if confined to the black community, were viewed with some leniency. Certainly time had to be served but petitioners often claimed that sufficient punishment had been exacted well before the expiry of sentence, and the Prison Commission often responded favorably to such appeals. (82) A large number of crimes were dismissed, including many cases of murder and manslaughter, as merely 'Negro affrays'. Here petitioners sought to suggest that 'Negroes' were particularly prone to crimes of passion, and as long as this passion was confined to their own community, then little harm was done. Obviously blacks who killed other blacks were convicted and sentenced, but if they were productive workers, valued servants, known in the wider community for being 'good blacks', then justice would not be served by a long sentence for a 'Negro affray.' (83)

When a crime was seen as a 'Negro affray', sympathy lay with the black who had solid roots in the community. Part of the appeal for the release of Lester J, convicted of murder, was that his victim was not a native of Cherokee County. She was 'a newcomer', with a questionable reputation, whereas Lester was well-liked, and, in the view of the sheriff, locals "feel that he has served long enough." On the other hand, James A received little sympathy from either locals or the Commission because he was seen "as a drifter," with a long criminal record. Locals opposed his release. (84)

Another common claim was that the prisoner was not really a 'criminal type'. In 1928 the white petitioners for the release of Willie R argued that he "was not an habitual criminal." (85) Mrs P, a well-known philanthropist petitioned for the release of Jake N, convicted of burglary and sentenced to four to six years in 1937, because "he was a good little colored boy and lived a clean life." She added, to reassure the Commission, that "I don't like to recommend colored people too highly, but when I see people though colored who are worthy, it is a pleasure to recommend them." (86) A variation on this theme was that the prisoner had reformed or had shown sufficient contrition for their crime. This was certainly the basis of the petition supporting the release of Edward L, convicted of robbery and sentenced to ten years in 1924. Again another local philanthropist was prepared to instigate the petition for Edward, claiming that he "was not a criminal at heart," "had acted on a sudden impulse" and been "led astray by bad company." Most importantly "the boy had had his lesson ... and Justice should not remain blind to a contrite heart." (87)

V

The majority of African Americans accused of crimes faced a very harsh reality. Some were lynched and many others brought before the courts where they were convicted and sentenced to long terms working on county chain and highway gangs. The evidence suggests that life on these work gangs was harsh and brutal. It is not hard to imagine why so many attempted escape. Georgia earned a justified reputation for the severity of its criminal justice and penal system. And the majority of those who suffered in this system were black. But this should not blind us to other dimensions of Georgia's criminal justice system. A minority, but a significant minority, of African American prisoners in twentieth century Georgia benefited from very liberal policies of pardon and parole. In particular circumstances, when their crime was considered insignificant, or if it could be argued that they had served enough time, and they were considered reliable workers, then they served very few years of their long sentences, occasionally a s little as a year for life sentences. The beneficiaries of this mercy were usually seen as good workers, deferential and obedient men (and a few women) who did not challenge white authority. They were usually well connected to local communities and members of those communities were prepared to vouch for them. Sometimes this was for very practical reasons--they were cheap dependable labor and sometimes the only available workers. Blacks who had committed crimes against other blacks, who showed contrition, who had served some time, sufficient to appease community standards of appropriate justice, were recommended for early release.

Patterns of pardon and parole indicate that mercy was a key aspect of Georgia's criminal justice system. It worked in two main ways--to resolve injustices due to the harshness of the criminal justice system and to release a labor force for those who needed it. Mercy and harshness were the partners that made the criminal justice system work after a fashion. It also suggests that whites were prepared to support worthy and useful local blacks. Georgia's criminal justice system was not just a means of achieving economic modernization, as historians have claimed, it was also, through pardon and parole, a means of maintaining and cementing older social relations. It fostered paternalist and deferential bonds, particularly in farming areas but increasingly in cities, relationships of considerable longevity in the South. It sought to foster gratitude in those whose 'miscarriage of justice' was corrected. Pardon and parole also helped to keep labor in farming districts and Southern cities at a time when many African A mericans were migrating North in search of better lives. White citizens were prepared to look after local blacks if they were good workers, trusted and had a reputation for good behavior. African Americans knew that if they were properly deferential and hard working they might benefit from the protection of white employers and the larger white community. If they didn't know it before they committed a crime, they certainly knew it afterwards. Their chances of successful early release rested very much on whether whites were prepared to recommend release. Sponsorship meant a social and economic obligation after release, and continued freedom depended on employers not complaining about your behavior. Pardon and parole was designed to instil loyalty and gratitude in African American laborers. Mercy was one means by which whites hoped to conserve the old social bonds that had made the South.

ENDNOTES

(1.) Georgia Department of Corrections, Inmate Personnel Files 1870-1968, Georgia Department of Archives and History, Series 21, Box 49. I wish to express my thanks to the Georgia Department of Corrections, particularly, Commissioner Jim Witherington, General Counsel William F. Amideo and Senior Assistant Counsel Rhoda S. McCabe, for permission to read these restricted files and for facilitating my research in every way possible. As part of my agreement for access to these files all names of those in the files (Convicts, officials and others) have been changed to ensure privacy. I am also grateful to Dale Couch of the Georgia Department of Archives and History for guiding me through the archives with such expert care and Dr. William Crump the Department of Corrections official historian, who was very generous in sharing his intimate knowledge of the Department's history. I am also grateful to my colleague, Shane White, who took on the burden of introducing me to American history.

(2.) Georgia Department of Corrections, Inmate Personnel Files, Box 68.

(3.) Frank Tannenbaum, Darker Phases of the South (London, 1924), 74-115, Robert E. Burns, I am a Fugitive from the Georgia Chain Gang (Savannah, 1994, first published 1932) and John Spivak, Georgia Nigger (Montclair NJ, 1969, first published 1932).

(4.) This ruling was subsequently overturned by the Supreme Court but nevertheless the impression of a callous and inhuman system remained, prompting State government reform of the penal system in Georgia. See Lawrence M. Friedman, Crime and Punishment in American History (New York, 1993),3 11.

(5.) Alex Lichtenstein, Twice the Work of Free Labor: The Political Economy of Convict Labor in the New South (London, 1996), 17. See also Edward Ayers, Vengeance and Justice: Crime and Punishment in the American South (New York, 1984); David M. Oshinsky, Worse Than Slavery: Parchman Farm and the Ordeal of Jim Crow Justice (New York, 1996); Mary Ellen Curtin, Black Prisoners and their World, 1865-1900 (Charlottesville, 2000); and Matthew Mancini, One Dies, Get Another: Convict Leasing in the American South 1866-1928 (Columbia, 1996). There are also useful insights into Southern criminal justice and punishment in such works as Leon E Litwack, Trouble in Mind: Black Southerners in the Age of Jim Crow (New York, 1998), 246-SO; David J. Bodenhamer and James W. Ely Jr (eds), Ambivalent Legacy: A Legal History of the South (Jackson, 1984); Mildred C. Fierce, Slavery Revisited: Blacks and the Southern Convict Lease System (Brooklyn, 1994); Howard N. Rabinowitz, Race Relations in the Urban South 1865-1890 (New York, 1978), 32-52, 138-9; and Vivien M.L. Miller, "Reinventing the Penitentiary: Punishment in Florida, 1868-1923," American Nineteenth Century History, 1(1), Spring 2000, 82-106.

(6.) Ayers, Vengeance and Justice, 206.

(7.) Lichtenstein, Twice the Work of Free Labor, 152-85.

(8.) Ibid. 184.

(9.) Lichtenstein, Twice the Work of Free Labor, 17 and Introduction to Burns, I am A Fugitive from the Georgia Chain Gang, 8-9.

(10.) Litwack, Trouble in Mind, 268-70.

(11.) See Ayers, Vengeance and Justice, 63, 204-6, Curtin, Black Prisoners and their World, 183-95, Oshinsky, Worse Than Slavery, 179-204. The most detailed and illuminating study of this practice is Vivien M L. Miller, Crime, Sexual Violence, and Clemency: Florida's Pardon Board and the Penal System in the Progressive Era (Gainesville, 2000).

(12.) By the term 'convict population' I mean the total number of convicts in the system in the course of the year-this is the sum of those present in the system at the beginning of the year and those admitted throughout the year.

(13.) The basis for this study is the Georgia Department of Corrections Inmate Personnel Files, amounting to 168 boxes. These are largely parole application files and cover the period from 1870 to 1968, but for the early years the files are very incomplete. The bulk of the collection covers 1925 to 1945. But there are some parole files and conditional pardon files for the interwar years contained in another series, the Executive Department Applications for Clemency Files. These 180 boxes cover an earlier period, largely from the 1890s to the 1920s, and although they are meant to concern applications for pardons, they also contain cases of parole. Thus there is some overlap in the nature of these two collections. Together they provide evidence for over 2000 applications for parole in Georgia from the 1920s through to the 1950s. These files have been investigated through a random sample, reading all the cases in a selection of 15 boxes in the Personnel File series, and a further 5 boxes in the Clemency files, i n all 523 cases for the period 1920 to 1945.

(14.) See Jonathan Simon, Poor Discipline: Parole and the Social Control of the Underclass, 1890-1990 (Chicago, 1993), 38. For other general accounts see Andrew Scull, Decarceration: Community Treatment and the Deviant--A Radical View (New Jersey, 1977), 41-63 and David Rothman, Conscience and Convenience: The Asylum and its Alternatives in Progressive America (Boston, 1980), 159-201.

(15.) See Martha S. Myers, Race, Labor and Punishment in the New South (Columbus, 1998). In the context of this article it is impossible to do justice to the complexities of Myers's analysis. By mapping intricate correlations between patterns of admission, sentences and release and broader contexts such as the state of the labor market, economic conditions and state policies of social control, Myers has presented a far more complex picture of punishment in Georgia than any previous account. She is even able to demonstrate specific contexts in which white prisoners were disadvantaged in release patterns in comparison to blacks. Nonetheless, her focus is on general patterns based on gross statistics in annual reports and registers and nor on specific cases that might illuminate the ways decisions were made in practice and why some prisoners were released and others served their full sentence. The focus of this article is this latter problem.

(16.) See Friedman, Crime and Punishment in American History, 311. Another reason for finishing this study in the 1940s is that the archival records are nor as extensive after 1945.

(17.) Lichtenstein, Twice the Work of Free Labor, 1-16.

(18.) The classic accounts of eighteenth century English mercy and brutality include Douglas Hay, "Property, Authority and the Criminal Law" in Douglas Hay, Peter Linebaugh, J.C. Rule, E.P. Thompson and C. Winslow, Albion's Fatal Tree: Crime and Society in Eighteenth Century England (London, 1975) and Peter Linebaugh, The London Hanged: Crime and Civil Society in the Eighteenth Century (London, 1991). For some critical assessments of this work see John Langbein, "Albion's Fatal Flaws," Past And Present 98 (1983), 96-120 and Clive Emsley, "Albion's Felonious Attractions: Reflections upon the History of Crime in England" in Clive Emsley and Louis A. Knafla (eds), Crime History and Histories of Crime (Westport Conn., 1996), 67-85. For more general accounts of mercy in different contexts see Carolyn Strange (ed.), Qualities of Mercy: Justice, Punishment and Discretion (Vancouver, 1996) and Rob Turrell, "'It's a Mystery': The Royal Prerogative of Mercy in England, Canada and South Africa," Crime, History and Socie ties, 4, 1 (2000), 83-101.

(19.) See Ayers, Vengeance and Justice, 185-222, Oshinsky, Worse Than Slavery, 179-205 and Miller, Crime, Sexual Violence, and Clemency, 128-74. This excellent work on paternalism and justice firs into a wider historiography on Southern paternalism most developed in relation to slave plantations. Here the classic account is Eugene D. Genovese, Roll, Jordan, Roll: The World the Slaves Made (New York, 1976). See also Philip J. Schwarz, Twice Condemned: Slaves and the Criminal Laws of Virginia 1705-1865 (Baton Rouge, 1985) and Jeffrey R. Young, "Ideology and Death on a Savannah River Rice Plantation, 1833-1867: Paternalism amidst 'a Good Supply of Disease and Pain'," Journal of Southern History LIX, 4 (November 1993), 673-706. Studies of paternalism in the post-bellum period are less common. Some other interesting work in the field of legal history includes Aviam Soifer, "The Paradox of Paternalism and Laissez Faire Constitutionalism: US Supreme Court 1888-1921," Law and History Review 1, 5 (Fall, 1987), 249-79. But the area of greatest study of paternalism is labor history. See for example Charles L Flynn Jr., White Land, Black Labor: Caste and Class in late Nineteenth Century Georgia (Baton Rouge, 1983), 16-21; Mary Lethert Wingerd, "Rethinking Paternalism: Power and Parochialism in a Southern Mill Village," Journal of American History 83, 3 (December, 1996) 872-902; and John Gaventa, Power and Powerlessness: Quiescence and Rebellion in an Appalachian Valley (Urbana, 1982). Some general studies have also highlighted the significance of paternalism for understanding the history of the posrbellum South. See Numan V. Bartley, The Creation of Modern Georgia (Athens, 1983), 129-46.

(20.) For very good analyses of the decline and eventual collapse of the lease system see Mancini, One Dies, Get Another, 215-32, which cites the case of County of Walton v Franklin et.al.; Lichtenstein, Twice the Work of Free Labor, 152-85; Ayers, Vengeance and Justice, 185-222; C. Vann Woodward, Origins of the New South, 1877-1913 (Baron Rouge, 1951), 424-5; Mark T. Carleton, "The Movement to End the Convict Lease System in Louisiana," Louisiana Studies 8 (Fall, 1969), 211-23; William F Holmes, "James K. Vardaman and Prison Reform in Mississippi," Journal of Mississippi History 27(1965), 229-48. The most derailed analysis of the actual movement for reform and the reformers for Georgia remains A. Elizabeth Taylor, "The Abolition of the Convict Lease System in Georgia," Georgia Historical Quarterly 26 (September-December, 1942), 273-87.

(21.) The Commission remained in this form until 1938, when a new Act split the Commission into a Board of Penal Administration (members appointed by the Governor), to oversee the supervision and control of all prisoners, and a separate Prison and Parole Commission (elected members) to deal with all matters of parole and clemency. This was short-lived. In 1941 the two were united again as the Georgia Prison and Parole Commission (elected members), then divided again in 1943. In 1945 they were united again as the Georgia Board of Corrections.

(22.) Prison Commission Annual Report, 1898/9.

(23.) Prison Commission Annual Report, 1899/1900.

(24.) Prison Commission Annual Report, 1901/2.

(25.) Prison Commission Annual Report, 1901/2.

(26.) This of course did nor always protect the governor from controversy. Pardons, and to a lesser extent parole decisions, always had the potential to 'inflame' community discontent, as the case of Leo Frank in 1913 demonstrated all too clearly. See Nancy MacLean, "The Leo Frank Case Reconsidered: Gender and Sexual Politics in the Making of Reactionary Populism," Journal of American History (December, 1991), 917-48.

(27.) For a general overview of parole laws see Friedman, Crime and Punishment in American History, 161-2 and Simon, Poor Discipline, 39-67. For their specific operation in Georgia see Myers, Race, Labor and Punishment in the New South, 21-33.

(28.) Prison Commission Annual Report, 1908/9.

(29.) Prison Commission Annual Report, 1908/9.

(30.) Prison Commission Annual Report, 1915/16.

(31.) Prison Commission Annual Reports, 1909/10, 1915/16, 1929/30, 1935-6, 1942-3. By the late 1930s and early l940s over a third of the convict population was being paroled and pardoned each year. For the broader context of parole reform in this period see Simon, Poor Discipline, 39-67 and Friedman, Crime and Punishment in American History, 304-5. The increase in parole release during the Depression might seem to be an anomaly. Most criminological theory has posited a direct relationship between rates of incarceration, harsh sentences and more restrictive release decisions in times of economic recession. But Myers provides a fascinating insight into these release patterns in Georgia, demonstrating that after an initial tightening of release in the first year of the Depression (and other economic recessions during the interwar years), release became more common, largely to alleviate the pressures caused by greater admissions and the costs associated with maintaining large numbers of convicts. Counties simply could not afford to keep and employ large numbers of convicts. See Myers, Race, Labor and Punishment in the New South, 160-97. Nonetheless we still have to explain why employers were willing to accept convict parolees in times of economic downturn. Moreover nor all convicts were released, so we still need to explain why some were chosen over others. The case files provide some clues to these questions. Even during economic recessions planters and other employers were still petitioning the Prison Commission in considerable numbers for the release of convicts into their care. They desired cheap labor even during times when labor costs were depressed and the labor market overflowing. The reasons for this are complex but parole offered an opportunity to get obedient and deferential labor at a very low rate, something desirable during tough economic times. Given the economic risks to employers they were obviously anxious to ensure that they took on parolees who were proven 'good workers', obedient and deferential.

(32.) Prison Commission Annual Report, 1921.

(33.) Inmate Personnel Files, Box 68.

(34.) Inmate Personnel Files, Box 49.

(35.) Inmate Personnel Files, Box 43.

(36.) Inmate Personnel Files, Box 136.

(37.) Inmate Personnel Files, Box 100.

(38.) Myers, Race, Labor and Punishment in the New South, 44-80.

(39.) All of the thousands of cases documented in the Georgia Department of Corrections Personnel files and Executive Department, Applications for Clemency files have as their origin a petition from the convict, or a petition or some form of expression of interest from someone outside the prison system such as family, minister of religion, former employer or lawyer.

(40.) All of these questions and the trail of correspondence are evident in the case files. The later the case the more bureaucratic the forms to be signed. But these merely encapsulated the more personal inquiries of the early years of the century.

(41.) Natalie Zemon Davis, Fiction in the Archives: Pardon Tales and their Tellers in Sixteenth Century France (Stanford, 1987).

(42.) Inmate Personnel Files, Box 46.

(43.) Inmate Personnel Files, James R Box 49, Buddy N Box 58 and Howard S Box 68.

(44.) See Inmate Personnel Files, James A Box 136, and Willie R Box 49.

(45.) Inmate Personnel Files, Frank J Box 110, Sol J Box 136 (it helped that Sol had been the court house janitor before his conviction for voluntary manslaughter), and Applications for Clemency, Richard C and Jim C Box 1.

(46.) Inmate Personnel Files, Bobby B Box 136, Robert C Box 140, George A and George F Box 136.

(47.) Applications for Clemency, Box 10.

(48.) Inmate Personnel Files, Box 58.

(49.) Inmate Personnel Files, Box 46.

(50.) Burns, I am a Fugitive from the Georgia Chain Gang, 50. This account needs to be handled with care. Its aim is to 'highlight' the horror and corruption of the Georgia prison system. And while there is little doubt about the horror of the gang itself and the appalling work, living conditions, food, accommodations and harsh punishments of the gang itself, this story aims to persuade and in doing so positions Burns as facing extraordinary odds in his effort to escape this hell. Part of this involves dramatising the difficulty of escape and his ingenuity and luck. But the prison statistics show that in the 1920s and 1930s on average 500 prisoners escaped each year, and only about 300 prisoners were recaptured each year. Thus contrary to the impression created by Bums, escape was a regular occurrence and quite a number succeeded, many never to be recaptured. More importantly Burns claims that the going rate for a 'pay out' was $2000, and further that he had to pay a $500 bribe to the Prison Commissioners. Bu t as the evidence below suggests lawyer fees were often much less than this and the idea of bribes from 1000 prisoners a year stretches credulity. This book was, despite its obvious rhetorical flourishes, a very powerful indictment of Georgia's prison system and was made into a Hollywood movie. Burns was demonized in Georgia as a result but was eventually pardoned when reforming Governor Ellis Arnall pleaded for clemency before the Prison Commission in 1945. See Harold Paulk Henderson, The Politics of Change in Georgia: A Political Biography of Ellis Arnall (Athens, 1991), 74-6.

(51.) See for example Letter re James J, May 1942, Inmate Personnel Files, Box 110 and letter re Robert A, April 1903, Applications for Clemency, Box 20. The figure of 50 percent is based on a random sample of 523 cases from the Inmate Personnel files and Applications for Clemency files. The figure is an estimate as it is sometimes hard to distinguish whether a lawyer is presenting a formal petition or is merely one of the signatories to a family petition. Both types have been included in the figure of 50 percent for lawyer petitions, although most seem to have been formal rather than informal petitions organized by law firms.

(52.) Applications for Clemency, Box 20. Emphasis in the original text.

(53.) Spivak, Georgia Nigger, 51-164. Spivak's book is a deliberate attempt to mix fictional and non-fictional techniques. The author attempts to assure the reader that this is a factual account based on his personal observations and talks with many in the system but he has resorted to fictional names in order to protect those involved in the story. He claims to have had information on penal practices in Georgia from many sources and thus positions the novel as a true story. It is of course difficult to differentiate the factual and fictional elements of the novel but there is evidence to support some of the central claims made in the book. For a more detailed analysis of Spivak's work and the social and political contexts in which it was produced see Alex Lichtenstein, "Chain gangs, Communism and the Negro Question: John L. Spivak's Georgia Nigger," Georgia Historical Quarterly, 79, 3 (Fall, 1995), 633-58. For some broader discussions about the continuation of peonage practices in the South during the twenti eth century see Pete Daniel, The Shadow of Slavery: Peonage in the South 1901-1969 (Urbana, 1972).

(54.) Theodore Rosengarten, All God's Dangers: The Life of Nate Shaw (New York, 1975), 372-5. Nate Shaw is the pseudonym chosen by Ned Cobb.

(55.) It is not exactly clear from the records who these investigators are. They appear to be the beginnings of a formal parole officer group employed by the Commission, but in some remote counties they may well have been clerks of the courts. But they do write formal reports for the Commission based on their questioning of local citizens about the nature of the original offense and the character of the prisoner, making recommendations for or against parole on the basis of these investigations.

(56.) Inmate Personnel Files, Box 46.

(57.) Applications for Clemency, Box 20.

(58.) Inmate Personnel Files, Box 49.

(59.) Inmate Personnel Files, Box 49. Regrettably this is the only such case I found in my random sample and the information it contains was rather sparse. It is a potentially revealing insight into attitudes to sodomy but in isolation and with limited information very little can be done with it here.

(60.) Inmate Personnel Files, Box 68.

(61.) Applications for Clemency, Box 1.

(62.) Applications for Clemency, Box 20.

(63.) Applications for Clemency, Box 20.

(64.) The metaphors of the 'theater of justice' and justice as 'social drama' are common in the historiography and sociology of criminal justice. For some interesting discussions of this 'theater' and its operations see Hay, "Property, Authority and Criminal Law"; Harold Garfinkel, "Condition of Successful Degradation Ceremonies," The American Journal of Sociology 61(1956), 420-4; Pat Carlen, Magistrate's Justice (London, 1976). For some interesting works which explore specific cases to illuminate the broader social, cultural, symbolic and performance aspects of criminal trials see Michael Grossberg, A Judgement of Solomon: The d'Hauteville Case and Legal Experience in Antebellum America (New York, 1996); Karen Haltrunen, "Domestic Differences: Competing Narratives of Womanhood in the Murder Trial of Lucretia Chapman" in Shirley Samuels (ed.), The Culture of Sentiment: Race Gender and Sentimentality in Nineteenth Century America (New York, 1992); Martin Weiner, "The Sad Story of George Hall: Adultery, Murder and the Politics of Mercy in Mid-Victorian England," Social History, 24, 2 (1999).

(65.) See Hay, "Property, Authority and Criminal Law."

(66.) See for example Inmate Personnel Files, Mamie S, paroled after 1 year of a ten year sentence because a farmer had a wife suffering from asthma, Box 81; or Priscilla B pardoned after two years of a ten year sentence for manslaughter because a landowner had employed Priscilla's mother as a housekeeper for many years but she was now too old to work, Box 110.

(67.) See for example Inmate Personnel Files, George M released after seven years of a life sentence for murder in 1942 when a doctor requested an experienced farm hand. Such cases were common.

(68.) Inmate Personnel Files, Issac H Box 110.

(69.) Inmate Personnel Files, Willie S Box 68.

(70.) Applications for Clemency, Box 40.

(71.) These figures are drawn From my sample of cases in the Inmate Personnel files. But these files are organised alphabetically by name not by year or county. Thus systematic analysis of county patterns of release is very difficult, although the random sample can bring to light some general patterns in relation to urban and rural differences.

(72.) John Dittmar, Block Georgia in the Progressive Era 1900-1920 (Urbana, 1977), 86-9 and Curtin, Block Prisoners and Their World, 178-80.

(73.) Prison and Parole Commission Annual Report, 1941/3.

(74.) Inmate Personnel Files, Box 110.

(75.) Prison Commission Annual Report, 1935/6.

(76.) For discussion of the social and economic effects of New Deal policies and the Depression more generally on the South see George Brown Tindall, The Emergence of the New South 1913-45 (Baton Rouge, 1967), 354-432; William F. Holmes, "Part Five: 1890-1940" in Kenneth Coleman (ed), A History of Georgia (Athens, 1977), 309-36; and Paul E. Mertz, New Deal Policy and Southern Rural Poverty (Baton Rouge, 1978).

(77.) See for example Ivan Jankovics, "Labour Market and imprisonment," Crime and Social Justice 12 (1977), 17-33; Richard Quinney, Class, State and Crime: On the Theory and Practice of Criminal Justice (New York, 1977), 135-7; ChristopherAdamson, "Toward a Marxian Penology: Captive Criminal Populations as Economic Threats and Resources," Social Problems 31(1984), 435-58; and John Conley, "Prisons, Production and Profit: Reconsidering the Importance of Prison Industries," Journal of Social History 14 (1980), 257-75. For a critique of labor market theories of incarceration see Stephen Garton, "The State, Labour Markets and Incarceration" in Mark Findlay and Russell Hogg (eds), Understanding Crime and Criminal Justice (Notth Ryde, 1988), 309-35.

(78.) Myers, Race, Labor and Punishment in the New South, 160-97. Again it is hard to do justice to complexity of this study. Myers has made an important contribution by pointing to the complexities of analysing the economy. She stresses that the economy is nor a single thing but an intricate network of relationships and practices. Previous historians of the relationship between crime and the economy have tended to focus on one thing, the state of the labor market, but Myers focuses on a number of other indicators, such as the size of the harvest, the price of cotton, levels of mechanization, urbanization and interracial competition. Thus she is able to show that while theoretically one factor may indicate a rise or fall in admissions or release, other economic and social factors can off-set these effects. She is able to pinpoint more accurately the specific economic determinations in patterns of admission, sentencing and release. However, her concern is not the `ethnography of parole decisions,' which is the focus of this article.

(79.) For arguments about the decline of paternalism see Bartley, The Creation of Modern Georgia, 145-6. Others, however, have documented the continuation of 'old paternalism' in the South, particularly amongst some blacks who preferred the certainties of Southern paternalism to the uncertainties of life in the North. They were a minority as new generations of blacks after 1915 increasingly sought refuge in the North. See Litwack, Trouble in Mind, 488-90.

(80.) The best discussion of the 'Negro law' is Litwack, Trouble in Mind, 258-60.

(81.) For instance in 1931 John C received twenty years for raping a 14 year-old girl (she also gave birth to a child as a consequence). But he was released after nine years after police argued that he "served long enough." Inmate Personnel Files, Box 140.

(82.) For example Charles F was sentenced to five years for burglary in 1922 but was pardoned after just over two years when many local whites petitioned the Commission claiming that he "had been punished enough." Applications for Clemency, Box 20.

(83.) For example Willie R, as we have seen, only served one year of a three to five year sentence for manslaughter. Part of the grounds for the petition was that it was 'a Negro affray'--Inmate Personnel Files, Box 49. Buddy N only served five years of a life sentence for murder, partly because his crime was seen as more accident than intentional, arising as it did from a 'Negro Christmas frolic'--Inmate Personnel Files, Box 58. In another case Charley M was thought to be more than justified in shooting at another man who had stolen his money. Although convicted of assault with intent to murder and sentenced to three to four years in 1938, no one thought this was a serious crime, the other man was also black, and locals believed he should not have been convicted-Inmate Personnel Files, Box 68.

(84.) See Lester J, Inmate Personnel Files, Box 68 and James A Box, 136.

(85.) Inmate Personnel Files, Box 49.

(86.) Inmate Personnel Files, Box 68.

(87.) Applications for Clemency, Box 80.
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