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.