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Pardon, why not?

In February of this year I explained why I believe that the decision was wrong not to pardon Alan Turing (computer science pioneer, codebreaker, and consensual-gay-sex convict). At the time, Justice Minister Lord McNally stated that

A posthumous pardon was not considered appropriate as Alan Turing was properly convicted of what at the time was a criminal offence". [...] However, the law at the time required a prosecution and, as such, long-standing policy has been to accept that such convictions took place and, rather than trying to alter the historical context and to put right what cannot be put right, ensure instead that we never again return to those times.

I argued that "It is not about trying 'to put right what cannot be put right'; it is about acknowledging, here and now, that what happened to Turing was wrong". A few months after that decision, the Protection of Freedoms Act received royal assent. Part of that Act means that those with gay sex convictions can from next month apply to have them removed from the criminal records database (although presumably this does not amount to a judicial pardon).

So now, I ask the questions: if these convictions are to be deleted from criminal registers, why should these people not also receive a pardon? And if living convicts should receive a pardon, why not also deceased ones -- a good number of whom died through the state's abuse of its judicial apparatus?

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Why the decision not to pardon Alan Turing is wrong

This year marks the centenary of Alan Turing's birth. Turing made a key contribution to the British war effort. However, in 1952 he was prosecuted for committing homosexual acts and sentenced to chemical castration by treatment with female hormones. This damaged him physically and psychologically, and he committed suicide two years later. In spite of this, Manchester, the city where he worked, has commemorated Turing by naming roads and buildings after him. Last week, Justice Minister Lord McNally dismissed a motion to pardon Turing in the House of Lords. He stated that

A posthumous pardon was not considered appropriate as Alan Turing was properly convicted of what at the time was a criminal offence". [...] However, the law at the time required a prosecution and, as such, long-standing policy has been to accept that such convictions took place and, rather than trying to alter the historical context and to put right what cannot be put right, ensure instead that we never again return to those times.

I think the government's decision is wrong, and here's why: the decision fails to recognise the difference between just and unjust law. By way of illustration, consider two examples. In some countries, it is perfectly legal to drive on a motorway at 120mph. In others, it is illegal to drive above 60mph. We do not typically think there is anything intrinsically wrong with one law or the other. That is because, in many instances, there is scope for wide variation in the ways in which just principles are codified in law. Although in this case one country permits what another country prohibits, we do not think of one law as being more "just" than another.

However, some laws do directly violate basic principles of justice. Consider now one country that permits slave labour, and another country that strictly prohibits it. The laws permitting slavery are intrinsically unjust, in that they themselves violate basic principles of justice: rights to liberty, bodily integrity, self-ownership, the fruits of one's own labour, etc. Now suppose that these laws exist not in different countries, but in the same country, only separated by fifty years of legislative reform. The fact that "times have changed" does not make unjust what used to be just. Slavery was always unjust; only a lot of people could not, or would not, see why. Indeed, such legislative reform can only be properly understood, as McNally inadvertently concedes, by accepting that it was the reform of an unjust situation into a (more) just one.

In the case of Alan Turing, his most basic rights were violated -- not only by the laws which unjustly restricted his liberty and punished him for his sexuality, but also by the manner in which he was punished, a manner which caused him direct physical and psychological injury. The law and judicial processes at the time were instruments not of justice, but of injustice. Those who read this far and still find themselves saying "yes, but people thought differently in those days; he should have observed the laws of the day," succumb to moral relativism. Those who were convicted and punished on the basis of demonstrably unjust law should be pardoned -- all of them. It is not about trying "to put right what cannot be put right"; it is about acknowledging, here and now, that what happened to Turing was wrong.

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