Penal Outcomes


If we are to understand the impact of criminal convictions on convict lives, we first need to identify the punishments they actually experienced. The punishments convicts underwent were frequently not those to which they were originally sentenced, and some convicts were freed before any punishment was carried out. Over the period 1780 to 1870 less than a fifth of convicts sentenced to death were actually executed, only between two-thirds and three-quarters of those sentenced to transportation actually travelled to Australia, and while those sentenced to imprisonment were almost always incarcerated, relatively few served out the full terms of their sentences. Why did judicial officials so often decide to reduce sentences or pardon offenders? And on what basis were such decisions made? Historians have devoted a lot of effort to understanding why, and according to what criteria, so many capital convicts were pardoned, but we know much less about those sentenced to transportation and imprisonment. The records linked together in the Digital Panopticon project provide an unprecedented opportunity to compare the characteristics of convicts who received their full punishments according to their original sentences with those who received reduced sentences, alternative punishments, or a range of pardons.

Figure 1: Penal Outcomes of Convicts Sentenced to Death
























Military Service
























Total Number (100%)






# Executions per year





Capital Convicts

Under the ‘Bloody Code’, the collection of statutes which mandated death for a wide range of offences, large numbers of convicts continued to be sentenced to death until 1830, when the capital code was sharply curtailed. But owing to the widespread use of pardons, particularly conditional pardons (in which the convict was given a lesser punishment), only a small proportion of the convicts sentenced to death were actually executed. For more information on how the pardoning process worked, see the background page on Pardoning.

Over the course of the period from 1780 to 1837 the proportion of capital convicts actually executed declined. Whereas 43.5 per cent of those sentenced to death were executed in the 1780s, a time of social and political crisis and widespread concern about crime, only 20 per cent of capital convicts were executed between 1790 and 1809, and 10 percent between 1810 and 1837. The number of executions, however, declined much less dramatically; with the rise in prosecutions following the end of the Napoleonic Wars, even a smaller proportion of the very large number of convicts sentenced to death resulted in an increase in the number of executions. An average of 22.7 convicts were executed each year between 1820 and 1829, compared to less than half that in the first decade of the nineteenth century (Devereaux, 2016 and 2017).

After 1837, following the curtailment of the Bloody Code, the only offences punishable by death were murder, infanticide, wounding, rape, treason, robbery, burglary, arson, and sodomy. As a result, the number of offenders sentenced to death declined, but the proportion executed rose. Nonetheless, only 30 per cent of those sentenced to death between 1838 and 1868 were executed, all of whom were convicted of murder.

Figure 1 shows the actual penal outcomes of convicts sentenced to death between 1780 and 1868, the period in which convicts were ordered for transportation to Australia. Overall, less than 20 per cent of capital convicts were executed, while almost two thirds were transported instead. Other punishments include imprisonment and military service; between 1704 and 1834 the Mutiny Act allowed those sentenced to death, transportation or imprisonment to have their punishments commuted to enlistment in the armed forces. Relatively few convicts (6.3 per cent) received a free pardon.

Why was such a low proportion of those sentenced to death actually executed? Doubts about the death penalty date from the early eighteenth century, if not before, resulting not from any moral qualms about the justice of executing felons, but from concerns that the punishment did not achieve its intended aim of deterring others from committing crime. Despite significant numbers of executions, crime continued, and was often thought to be increasing. Consequently, the state had long been searching for alternative, ‘secondary’ punishments for capital offenders, with transportation (first to America) the first major alternative adopted. It was still thought that the most serious offences merited execution, and that the punishment had some deterrent value, but this was not thought sufficient to justify executing more than a fraction of those sentenced to death. Also of concern to the authorities was the threat of disorder and resistance from Londoners if too many executions were staged in the metropolis.

Figure 2: Penal Outcomes by Offence, 1780-1837

Who was Pardoned?

The question of which offenders would be pardoned has been a matter of heated historical debate, since the answer sheds considerable light on the exercise of the state's power over its subjects. Debate has been fuelled by the rich records available in the ‘pardoning archives’— Judges Reports on Criminals, Petitions for Pardon 1797-1858, and the Home Office Criminal Entry Books. As part of his theory that the criminal law was a main supporting pillar of the class system, Douglas Hay famously argued that convicts who had aristocratic connections were most likely to be pardoned: ‘the claims of class saved far more men who had been left to hang by the assize judge than the claims of humanity’ (Hay 1975: 44). Other historians, notably Peter King (2000), have argued that other factors, including the severity of the crime; the strength of the evidence against the convict and the possibility of their innocence; the convict’s character and their potential reformability; and their age and gender were more important.

The Digital Panopticon allows analysis of some of these factors. Through the evidence provided in the Capital Convictions at the Old Bailey database and linked to the other records in the Digital Panopticon, and using this website’s download feature, it is possible to conduct a statistical analysis of penal outcomes according to the characteristics of individual offences and offenders.

Figure 2 shows that the severity of the offence was the most important factor (among those which can be analysed using this methodology) in determining penal outcomes. Those most likely to hang (red) were convicted of murder, forgery, coining, and highway robbery. If we looked at the details of these offences as recorded in the trial accounts in the Old Bailey Proceedings, no doubt this would become even clearer, with, for example, the more egregious, unprovoked, murders more likely to result in executions. Revealing a hierarchy of punishments related to the severity of the crime, those convicted of the next most serious crimes were transported (green): housebreaking, theft from a specified space, burglary, highway robbery, returning from transportation, and wounding. Less serious offences were punished by imprisonment (light blue): shoplifting and plain theft, as well some cases of wounding.

Figure 3: Gender by Penal Outcome

The next most important factor was gender. Figure 3 shows that women were far less likely to be executed than men and far more likely to be imprisoned; while men were slightly more likely to be transported. These patterns remain even when you control by offence, and remained unchanged in the period after 1837 when only murderers were executed.

Although important, age (at time of sentence) seems to have played a lesser role (Figure 4). Overall, those imprisoned were the oldest, followed by those executed, while those who were transported were the youngest, along with those sent into service in the army or navy — clearly young men were ideal prospects for building a new colony or serving in the military. While this was a time of increased concern about the threat posed by juvenile crime, there was no desire to execute them. Convicts given free pardons were predominantly either under 16 or over 55. But the differences are not dramatic: at an average age of 25, transported convicts were only about five years younger on average than those executed or imprisoned.

Recommendations of the jury were also significant. When delivering their verdict, juries could recommend the convict to mercy, meaning they did not wish to see the convict hang. This applies to 11 per cent of guilty verdicts. While not always followed, Figure 5 shows that convicts who received this recommendation were twice as likely to be freed or imprisoned and more than half as likely to be executed. (For more information about these jury recommendations, including the rationales given by the jurors and pleas for mercy by prosecutors, consult the Capital Convictions at the Old Bailey database.) A similar pattern applies to convicts who pleaded guilty, perhaps in the hope of obtaining mercy.

Figure 4: Age Group by Penal Outcome, 1780-1837

One factor which did not appear to have affected the likelihood of receiving a pardon is the existence of previous convictions. The Digital Panopticon only holds systematic evidence of previous trials at the Old Bailey, which indicates that only 4 per cent of capital convicts had been tried previously or concurrently at the Old Bailey. Those executed, however, were less likely to have appeared in another Old Bailey trial than capital convicts who ended up serving in the military, or were transported, imprisoned, or even freed, indicating that the severity of the crime was more likely to be deemed deserving of execution than evidence of recidivism.

Sentenced to Transportation

Research on those sentenced to Transportation is less well advanced, and the focus of historians has to date been on the characteristics of those who arrived in Australia, without looking at information about the one quarter to one-third of convicts who were sentenced to transportation but never left England. Convicts were not transported either because they were formally pardoned, in the same manner as those sentenced to death, or they were simply sent to the hulks and never boarded a transport ship. In the former case, the decision was made by the King or his ministers, who could grant either a free pardon (which was rare) or a pardon on condition of serving a period of time in prison or in the army or navy. These pardons were mostly granted to ‘young, first-time offenders (especially with good characters or good family backgrounds) or those with heavy family responsibilities or who were in particularly tragic circumstances’ (Ward and Williams, p. 920).

The majority of those left behind by the transport ships, however, were not formally pardoned, but were simply delivered to a prison or the hulks and never boarded a transport ship. A not-insignificant proportion, particularly in the early years, died owing to the unsanitary conditions in these places of confinement. The remainder (who may have served their entire sentence on a hulk or in prison, or may have been discharged early) were de facto pardoned by the decisions of the captains of ships or hulks, or prison governors, who did not board them on a transport ship. In these cases, life-changing decisions were made by low-level officials rather than ministers and were based upon ever shifting and often undocumented criteria.

Figure 5: Recommendations for Mercy and Guilty Pleas, 1780-1837

Since we lack evidence for studying these decision-making processes, particularly for those not formally pardoned, the best approach is to compare the individual characteristics of those who were reprieved from transportation with those who were not. In determining the criteria for such decision-making, the key issue is whether convicts were selected for transportation to the colonies, or whether a subset of convicts were actively selected to stay in Britain. There is evidence to support both theories.

The most important issue was the health of the convicts. Ship captains did not take anyone on board who might infect other passengers or might not survive the voyage, and since on arrival transportees were expected to help build the new Australian colonies, there was no point in transporting the infirm. John Capper, superintendent of the hulks, testified to a Parliamentary Select Committee in 1831 that ‘at the present moment, there are between 600 and 700 men wholly unfit for transportation, and who are rendered incapable of efficient labour from loss of limbs, blindness, and old age’ (Parliamentary Papers 1831: 48). Such men might serve out their entire ‘transportation’ sentence on the hulks, or they might have been discharged early, but they were very unlikely to make the journey to Australia. It is owing to this selection process that very few convicts actually died during their several month long journeys to the other side of the world.

Selection for Transportation

As a result of death and ill health, the population available for transportation was narrowed down to a relatively young and healthy collection of men and women. In choosing among them, the severity of the original sentence appears to have been significant: those sentenced to transportation for life were more likely to be taken than those sentenced for the minimum sentence of seven years. Among the latter, it may have been the convicts who were deemed most unreformable who were transported. Age was also important: the vast majority of transported convicts were between 15 and 50. Based on Capper’s testimony, a Select Committee reported in 1812 that:

selection is in the first instance made of all the male convicts under the age of 50, who are sentenced to transportation for life and for 14 years; and the number is filled up with such from amongst those sentenced to transportation for 7 years, as are the most unruly in the hulks, or are convicted of the most atrocious crimes (PP 1812: 9-10).

The selection worked slightly differently for women. By the first half of the nineteenth century only about 20 per cent of Old Bailey convicts were women, and since there was a need for female convicts to help build a sustainable society in Australia, female convicts sentenced to transportation may have been more likely to be transported than their male counterparts.

A final, more pragmatic factor appears to have determined who was transported: the simple availability of a transport ship near the hulks where convicts were incarcerated. In addition, during wartime, such as the French wars between 1793 and 1815, fewer ships were available and the number of convicts transported fell (Shaw 1966: 147). If there was no ship available, convicts were left behind, opening up possibilities for other outcomes.

Needs of the Colonies

As the selection of women for transportation suggests, the needs of the receiving colonies were also considered. A major consideration was the overall ability of the colonies to receive convicts, needs which varied over the eighty-one year period of convict transportation. In the early years there were concerns about how many convicts the new colony in New South Wales could support. In 1810 a Parliamentary committee was told that ‘Transportation thither has always been gradual, and according to the Advices received from the Settlement of the Capability of receiving them’; in that year it was deemed ‘inexpedient to send a greater number of convicts ... until that Settlement shall have attained a greater degree of cultivation’ (PP 1810: 18). Similarly, in 1846 the supply of male convicts to Van Dieman’s Land (Tasmania) was reduced because there was not enough work available for them (Oxley and Meredith 2005: 46-47). Opposition to transportation from the colonists helped end transportation to Van Dieman’s Land in 1853. In contrast, it was requests from Western Australia for transportees to help build that new colony that led to convicts being sent there from 1850 to 1868.

The specific occupational needs of the colonies also appear to have been important. While there is no evidence of an explicit policy, Deborah Oxley’s study of transported women found that the age and occupational skills of these women were very similar to those who were being recruited at the same time through assisted immigration. While those who were left behind included many more women employed in commerce, trade or manufacture, domestic servants (who were in great demand from the free settlers) were more likely to be transported. It is not clear, however, whether this was a deliberate selection criterion or whether it was the result of other considerations, such as the convicts' crimes, behaviour, or judgments of their likelihood of re-employment in Britain upon their release (Oxley 1996: 168, 237). The 'Convict Workers' study of male convicts found a similar congruence between the work skills of convicts and those of the free migrants (Meredith 1988; Garton 1991: 77).

Biometric factors, such as height and weight, may also have played a role in choosing convicts for transportation, as proxies for convicts’ strength and life chances in the new colonies, but research on this issue is still ongoing (Maxwell-Stewart, Cracknell and Inwood 2015: 30, 41).

Finally, we should not ignore the possibility that the convicts themselves played a role in shaping their own fates. As conditions in Australia improved, the prospect of transportation seemed less terrifying and indeed attractive to some convicts. This was particularly the case after the 1851 gold rush, and especially when it became possible to travel with a conditional pardon or ticket of leave, meaning they were not put to hard labour on arrival. Already in 1840 it was claimed that prisoners on the hulks competed for selection, sometimes bribing officers to get their names on the ‘bay drafts’ of those who would be transported (Smith 2009: 78, 108; Hughes 1987: 142). Evidence of such competition and bribery is of course sparse, but these processes may explain some of the apparent randomness in the profiles of those who were eventually transported.

Sentenced to Imprisonment

In contrast to the significant historiography concerning the practice and significance of execution pardons and on the selection of convicts for transportation, we know very little about the decision-making process regarding the punishments actually experienced by those sentenced to Imprisonment and penal servitude. Despite attempts to make imprisonment regular and predictable, it is clear that prisoners' experiences were still shaped by the discretion exercised by judicial officials. While it appears that convicts almost always spent some time in prison, many were allowed early release. In 1835 the chaplain of Millbank Prison, W. Russell, observed, ‘very nearly all the prisoners in this institution obtain their liberty at the shortest time at which they can be recommended to the Secretary of State for pardon' (PP 1835: 45). We don't yet know the basis on which such decisions made, and how these were influenced by the age, gender, and other personal characteristics of the convicts affected.

Although those sentenced to the national penitentiaries (Millbank and Pentonville, from 1842) were referred to the Secretary of State for a formal pardon, in other cases prison governors or officers may have made the key decisions (and in any case all decisions would have been based on evidence provided by prison officials). With the introduction of sentences of penal servitude in 1853 sentences could be carried out either at home or abroad, meaning that a sentence of penal servitude could see a convict confined in an English prison, and/or transported to Australia. The decision of where the penal servitude would be carried out was left to those who ran the prisons. With the adoption of the ‘marks’ system in the 1850s and 1860s as part of the ‘progressive stage’ system, decisions concerning prisoners’ passage through the penal system were also made by prison officers. How these decisions fed into decisions concerning early release is not yet clear.


Existing research seeking to explain the discrepancies between judicial sentencing and the actual punishments convicts experienced has exploited the records of decision-making, but these records are limited, and rarely provide much detail about why so many individual convicts were spared all or part of the serious punishments specified in their sentence. This is particularly true with respect to those sentenced to transportation and imprisonment. There is much more to be learned by analysing records of actual sentences and punishments, both the individual circumstances of each case and by summarising those characteristics quantitatively and with visualisations. By tying together all the relevant records for each individual convict, the Digital Panopticon project offers the possibility of identifying key patterns, thereby making it possible to deduce some central features of penal policy and practice across the whole range of punishments. More than this, the individual life archives created make it possible to understand the role that sentencing and punishment outcomes played in shaping individual lives.

Researching Penal Outcomes using the Digital Panopticon

Judicial sentences for the core group of convicts in the Digital Panopticon can be found in the Old Bailey Proceedings. Penal outcomes are recorded in a variety of different records depending on the nature of the punishment.

For those sentenced to death, the Capital Convictions at the Old Bailey database documents with considerable accuracy the penal outcomes of every such convict between 1760 and 1837, indicating whether the convict was executed, transported, imprisoned, received a free pardon, or experienced some other outcome. For the small number of convicts sentenced to death after 1838, researchers need to check records pertaining to the various possible punishments to determine the outcome. While there is no record of executions in the Digital Panopticon, a comprehensive list can be found at For transportation and imprisonment, see below.

For those originally sentenced to transportation, the most comprehensive list of those transported (though it is not perfect) are the British Transportation Registers and the Convict Indents. Other records pertaining to transportation, listed on the Records home page, may also be useful.

For those sentenced to imprisonment, the Prison Registers database is the most useful, but other imprisonment records listed on the Records home page may also be useful.

To analyse patterns of outcomes for groups of convicts, use the search function to look for convicts who appear in the Old Bailey Proceedings (under ‘Specific dataset’, specify minimum records=1); had a guilty verdict; and were given a specific sentence (both under ‘Criminal Trial’). Subject to a maximum of 1,000 records at a time, you can then choose to visualise the dataset, or download the results for statistical analysis offline. Of the visualisation options, a Sankey Diagram will allow you to compare sentences with sentence outcomes, while a Life Chart will show all events (or just the major events) and punishments in the convicts’ life archives (cases can be colour coded by gender or offence).

For example, the visualisation in Figure 6 includes those sentenced to death at the Old Bailey in the five years following the end of the Napoleonic Wars. It indicates that the vast majority were actually transported, small proportions were executed or given a free pardon, and an even smaller number were imprisoned. The other sentences listed on the left were for other convictions the convicts received, in addition to the one which resulted in a death sentence.

Figure 6

Further Information

Author Credits

This page was written by Robert Shoemaker, with additional contributions by other members of the Digital Panopticon project team.