Sui generis, or generic gay? Pardoning Alan Turing

There is a new call for a pardon of Alan Turing, who in1952 was convicted of homosexuality. An earlier petition for a pardon was declined by the UK government (he got an apology instead 2009). Lord McNally stated in the House of Lords that:

“A posthumous pardon was not considered appropriate as Alan Turing was properly convicted of what at the time was a criminal offence. He would have known that his offence was against the law and that he would be prosecuted.

It is tragic that Alan Turing was convicted of an offence which now seems both cruel and absurd – particularly poignant given his outstanding contribution to the war effort. 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”.

However, the eminent signatories of the new call counter by arguing:

“To those who seek to block attempts to secure a pardon with the argument that this would set a precedent, we would answer that Turing’s achievements are sui generis.”

Does that make moral sense?

Martin Robbins wonders in The Guardian whether we have the rights to pardon Turing. First, why just Turing? Thousands of others have suffered under the same unjust law. Pardoning just Turing and not Oscar Wilde or the many, many unknowns seem unjust.  Second, it is unclear what it would actually achieve – it will not help him, his legacy is unquestioned, and it does not seem to advance the cause of equality. And third, it is not clear who should be doing the pardoning: maybe it is Turing who should forgive the government.

Robbins’ piece mixes up forgiving with pardoning (although he rightly points out that that confusion already occurs in the recent letter, so it is not his fault): pardoning is more of a legal matter than a moral matter. In the UK only the government can pardon, and the real question is whether they should on moral grounds.

A pardon works by forgiving a convicted person of a crime and cancelling the penalty. This may or may not expunge blame or the memory of the crime; in US law Justice Field is often quoted:

“A pardon reaches both the punishment prescribed for the offence and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offence.”

but in UK law it appears that the crime still remains. It is also policy “to only grant pardons to those who are considered “morally” innocent of the offence, as opposed to those who may have been wrongly convicted by a misapplication of the law”. So the government position is fairly understandable.

The argument that Turing, being sui generis (war hero, father of computer science, and so on) should be pardoned as an exception also neatly runs into a classic debate about the morality of even having pardoning. If we have rule of law, how can certain people be forgiven their crimes? Either the law applies consistently without recourse to arbitrary judgement of some people, or it does not. Pardons can of course be used to fix disproportionate sentencing or add a human touch to the legal system, but they can just as well be used by the powerful to bias the system. This may be one reason the government is loath to change its policy: once you start, it is hard to stop.

The problem here is that arguing in favour of a pardon from the extreme specialness of Turing makes things extra arbitrary. It all hinges on him as a person, not the nature of the crime or the prosecution. Is Oscar Wilde extraordinary enough to also get a pardon? What should a genius like Stephen Fry be allowed to get away with in the future?

Robbins’ second point might actually be the reason a pardon could make moral (if not legal) sense. A pardon would not help Turing in any way (not even posthumously; martyrs’ halos are bright) but might indeed be seen as an important social and moral signal. If people would interpret it as a firm statement against oppression of homosexuals in any time or place, it would do some good. But that is a big if: it seems likely any pardon would be more linked with the individual awesome person Turing than the mistreated homosexual.

In criminal justice there are two goals: justice as fairness (punishment must be deserved and proportionate) and justice as restoration (repair of the harm to victims and society and the reintegration of offenders). Pardons can be a way of reconciling these. In the case where the government punishes someone undeservedly and disproportionate it can try to restore things by restitution, or when not possible, various forms of apologies or pardon. As noted by Charles L. Griswold’s essay on forgiveness, political apologies are done by groups, institutions, and “corresponding notions of moral responsibility and agency”. In the case of Turing the only kind of apology or pardon that would make sense would be of this kind. Often, they become tiresome jockeying for political goodwill rather than anything similar to institutional regret.

One way for the government to actually show that it, on an institutional level, was sorry (in whatever sense an institution can be sorry) would be to perform a non-trivial act restitution. Rather than saying “never again” it should be implementing some actual measure reducing the likelihood of future undeserved or disproportionate treatment of homosexuals. Maybe gay marriage is a good start.

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3 Responses to Sui generis, or generic gay? Pardoning Alan Turing

  • Regina Rini says:

    My inclination is to agree that a sui generis pardon for Turing is unjust to all those prosecuted for similar (nominal) crimes. But I can see one way of supporting the sui generis argument. Turing is a special case not just because he did something fantastic — lots of people (e.g. Oscar Wilde) did fantastic things. Rather, in the war effort Turing did something fantastic for the government of Britain. And that same government turned around and persecuted him. So, it might be argued, the government wronged Turing in two ways. First, in the way it wronged everyone persecuted for their sexuality: by punishing him for something that did not deserve punishment. And second, by displaying abominable ingratitude. Turing helped save the British state from Hitler’s regime. Presumably he was owed something good in return — perhaps, at minimum, discretionary application of a law that even then was understood to be problematic. So, in this sense, Turing really is special. Not simply because he did something great, but because he did something great for the British government. A Turing-specific pardon would then be a way of acknowledging the government’s particular failure, its massive ingratitude.

    Anyway, that’s an argument. I don’t think it’s completely convincing, but it at least makes clear a way in which Turing’s case really is sui generis.

    Incidentally, a genuine question: is there anything in the law that would prevent the government from issuing a blanket pardon to everyone convicted under that statute?

    • Anders Sandberg says:

      “Incidentally, a genuine question: is there anything in the law that would prevent the government from issuing a blanket pardon to everyone convicted under that statute?”

      I think it is the policy of only granting pardons “to those who are considered “morally” innocent of the offence, as opposed to those who may have been wrongly convicted by a misapplication of the law”. As Lord McNally said, there were never any question in Turing’s case (and presumably in a lot of the others) that he knew what the law was and knowingly broke it. So unless the government decided that they could not avoid breaking the law (a rather insulting retroactive interpretation) it would be hard to do a pardon of the entire group under the present policy.

      While pardoning an entire group from a past unjust law makes more sense than pardoning an individual, it seems that the general arbitrariness of pardons still remain: why just that mistreated group, when there have been so many other unjust and now repealed laws like the anti-Catholic acts?

  • Alan Turing’s status only seems to grow over time. Turing was convicted in 1952 for having sex with a male. This kind of prosecution was permissible in the United States until 2003. In the UK, by comparison, the Wolfenden Report called for the decriminalization of this kind of ‘crime’ in 1957, just 5 short years after Turing’s conviction.

    Some commentators want a pardon for Turing, but others argue that Turing knew at the time of his acts that they were subject to criminal prosecution. Namely, everybody at the time knew the stakes, so there’s no re-writing of history.

    One of the quirks here is that Turing’s advocates try to smuggle in a pardon for him, on the grounds that his accomplishments during WW II were ‘sui generis.’ The idea here is that his accomplishments were so outstanding that no one else could come forward and claim the same pardon.

    This strategy fails on moral grounds. For example, why should someone be pardoned following a conviction simply because he or she makes contributions elsewhere? Or, why should someone have to offer major contributions to be pardoned for a crime that vanishes from the books altogether a bit later? It seems to me that we’re on the wrong track when we decide retrospectively that someone did or didn’t deserve a conviction on the basis of overall lifetime achievements.

    If not a pardon, then, how about an annulment? What about annulling Turing’s conviction on the grounds that it was never properly within the government’s power to prosecute? This kind of annulment could, moreover, be extended to anyone convicted of the same offense, so there would be no question of favoritism: anyone convicted under sodomy statutes would enjoy the benefit, without having to be a National Hero. Britain only began dismantling its sodomy statute in 1967, so there may still be people still living whose lives were deformed by these convictions. I know that the law thinks in terms of guilt, conviction, and pardons as necessary. But it seems to me that an annulment would be an equitable way to respond to all those people who were convicted on these grounds, without having to stand head and shoulders above one’s peers.

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