The Unwritten Law of Executive Justice: Pardoning Patricide in Reconstruction-era New York

Abstract

Reconstruction was an uncertain time in New York City, the nation's foremost metropolis, riddled with political corruption and rocked by popular protest. Stabilizing efforts took numerous forms, including the brutal suppression of workers' rallies and the prosecution of municipal politicians and officials. Public faith in the criminal justice system and its capacity to prosecute and punish criminals had also reached a low ebb by the 1870s, prompting the state government to investigate the district attorney's office in New York County and its court system. In the words of a veteran member of the city's criminal bar, the “deplorable uncertainty” of punishment was making “a mockery of justice.” A Columbia University medico-legal expert agreed, claiming that murder, “if not yet cultivated as one of the fine arts … [was] a matter of daily occurrence.” High-profile trials in the wake of the Civil War tested public and professional criticism of jury independence, particularly jurors' disinclination to find killers guilty of murder, compounded by defense attorneys' growing use of “moral” and “emotional insanity” defenses. Every time apparently sane killers, such as William McFarland (tried and acquitted on grounds of “temporary insanity” in 1870 for the murder of his former wife's lover) escaped conviction on the basis of questionable insanity defenses, newspapers announced “the insanity dodge,” and medico-legal experts squabbled over the growing problem of “feigned insanity.” Occasionally Manhattan's murderers did face the gallows, especially the poor and friendless, as the execution of William Foster in March 1873 confirmed, but it seemed that well-financed and well-defended murderers, like Edward Stokes, murderer of financier Jim Fisk, could exploit the technicalities of the law if the vagaries of medicine failed to secure acquittals. A justice system of this sorry character had little hope of deterring would-be murderers, the New York Times despaired: “MURDER AND HANGING-Examples Wanted-Strangle All Our Murderers Together.”