Pardons, Pardons of Innocence, and Exonerations: Whither Constitutional Rights?

For three years in the 1960s I was married to a man with a larcenous heart, but his family considered me the ‘bad guy,’ especially when I finally divorced him. But more than a year later he was finally ‘outed’ when he was arrested for bank robbery and kidnaping.


This was the first case I’d ever heard of in which a gang kidnaped a bank manager’s family so they could force him to open the bank and give them the money. It turned out they were extremely lucky: During their first week in county jail, the federal government removed the automatic death sentence that had been imposed on kidnapers since the notorious 1932 Lindbergh baby kidnaping.

My ex ended up serving two years in federal prison for his crimes. The only time I saw him after our divorce, he proudly explained in typical arrogant fashion how he and his three accomplices had pulled off the heist. Some years later, I learned that his well-connected family got him a presidential pardon, though there was no question of his guilt.

Perhaps that experience is the reason I don’t like hearing about pardons for people who didn’t commit crimes for which they were convicted or were convicted of breaking laws that violated their constitutional rights. Rarely do those judicial decisions indicate any clear distinction between innocence or guilt. 

In chapters 10 and 11 of
The World I Imagine: A creative manual
for ending poverty and building peace,
I discuss creative ideas for improving the
justice system and ensuring civil rights for all.

 



That’s why I wasn’t particularly excited when posthumous pardons were finally granted this year to the "Scottsboro boys," nine young black men who were falsely accused of rape in Alabama in 1931. They could have received pardons as early as 1938, but Alabama Governor Bibb Graves withdrew his offer when they refused to admit any guilt for the crimes they did not commit. The case did focus massive media attention on racial inequities and led to two landmark Supreme Court decisions that forced some improvements to Jim Crow-era judicial systems.



But the end of those unconstitutional laws in southern states did not end legal discrimination in most of the country. One of the last official acts of outgoing North Carolina Governor Beverly Perdue was to grant a "pardon of innocence" to each member of the "Wilmington 10," nine black men and one white woman who were falsely convicted in 1972 of firebombing a Wilmington grocery store. Their convictions were overturned more than 30 years ago, but their experience still had a devastating effect on the lives of most of those men.

So far, Texas is the only other state to grant a "pardon of innocence" to people who become ensnared in the legal system through no fault of their own. On the other hand, a person can be exonerated when evidence submitted to the court after their conviction demonstrates they didn’t commit the crime. Their cases differ from those in which factors such as racial bias or judicial misconduct lead to unfair convictions.

The term ‘pardon of innocence’ does seem to be an improvement over the traditional pardon that can be conferred upon anyone previously convicted of a crime, whether they were guilty or not. But all these legal designations are inappropriate in the case of a person convicted of violating a law that was later repealed because the statute violated the person’s civil rights, such as England’s 1952 conviction of Alan Turing for "gross indecency."

The mathematical genius helped develop modern computer programming, and his code-breaking skills were an essential element in the Allied victory in World War II. But in 1952, he was convicted of a crime because he was gay. Turing chose castration over imprisonment, but two years later his lifelong depression, intensified by the unfair sentence, led to his suicide. Fast forward to the present and homosexual sex has not been a crime in the U.K. for many years. But it wasn’t until this month that Great Britain belatedly issued an official pardon clearing Turing of all crimes and restoring his good name.

The United States is not immune to such legal crimes, especially since most laws governing private relationships and behavior are administered on a state-by-state basis.. In 1967, Loving v. Virginia brought about full national recognition of interracial marriages, and gay sex was illegal in many states until 2003 when the Supreme Court declared in Lawrence v. Texas that laws against sodomy were unconstitutional.

Yet while Windsor v. United States finally negated the misnamed Defense of Marriage Act and allowed federal recognition of all legally married same-sex couples, many states still prohibit gays and lesbians from entering into such unions within their borders. That won’t change until one of many cases now winding their way through lower courts finally reaches the judicial pinnacle and the Supreme Court upholds every person’s right to be legally bound with the person they love.

All these cases demonstrate the need for separate terms to indicate each point on the spectrum of guilt or innocence, and fairness or rights violations. After thinking about the issue, the closest I’ve come to a solution would be to add a legal designation to the lexicon: Exoneration due to Violation of Rights. Of course, I’m sure that if a panel of attorneys were to consider the possibilities, they could coin an appropriate phrase that will no doubt be longer and more complex than mine.

So, in all humility (which usually means the opposite), I propose a competition that will be open to anyone who can devise a brand new legal category indicating the person has been screwed over by Lady Justice and deserves a crack at getting satisfaction. Okay, all you Barrister Brains, go for it!

　

　

　
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