Justice for the Dead

Pardons are most beneficial when they redeem the living. But posthumous ones can show that discredited values of the past are no longer the values of the present.

Illustration of scales of justice with a rose on one side
Getty; The Atlantic

As relatives looked on, some sobbing, some applauding, Virginia Governor Ralph Northam granted posthumous pardons in August to the Martinsville Seven, young Black men electrocuted 70 years ago for the rape of a white woman. Northam took no position on their guilt or innocence; he merely cited ample evidence that the state had not accorded the men justice.

“Race played an undeniable role during the identification, investigation, conviction, and the sentencing” of the men, Northam said. None had attorneys or parents present during his interrogation and several were unable to read the confessions they had signed. What is more, all 45 men who received capital sentences in Virginia rape cases from 1908 to 1951 were Black; not a single white rapist was condemned to death. In hindsight, the state appears to have reserved the death penalty in such cases exclusively for Black men.

“We all deserve a criminal-justice system that is fair, equal, and gets it right—no matter who you are or what you look like,” the governor said. “We have 402 years of history and a lot of wrongs that we need to right.”

But what can pardons right when the recipients are dead and the wrongs are irreversible? America’s governors clearly believe that posthumous pardons have value, because they are issuing them at a rate never seen before, particularly in cases in which racial prejudice is thought to have subverted procedures, denied rights, or perverted verdicts. Fifty such pardons have been granted in just the past three years, among them former Illinois Governor Bruce Rauner’s 2019 posthumous pardon—his state’s first—of Grover Thompson, a Black man with a history of mental illness who was convicted 23 years earlier of stabbing a 72-year-old woman. DNA evidence and another man’s confession exonerated him after his death. In another first, Minnesota Governor Tim Walz and the rest of the state’s pardon board extended a posthumous pardon to Max Mason, a Black man convicted of rape in 1920 on flimsy evidence by a racist judicial system.

These are symbolic acts, but that doesn’t make them meaningless. Two momentous events—the violent 2017 “Unite the Right” rally in Charlottesville, Virginia, and the 2020 murder of George Floyd by a Minneapolis police officer—galvanized the search for symbolic acts to repudiate historical, structural racism. Most of the attention has focused on pulling down Confederate statues and stripping public buildings of the names of slaveholders.

Posthumous pardons are part of that same effort. Just as the debate over Confederate statues is less about those depicted by them than the values of the people who must walk past them every day, pardons are about the present and the future, not the past. They are most beneficial when they redeem the living, of course, and few would argue that current prisoners should not be ushered to the front of the line. But when applied to the dead, they can also be worthwhile when they heal, or when they send an affirmative message that the discredited values of the past are no longer the values of the present, nor should they be those of the future.

Posthumous pardons are rarities in American history. Nearly all have been granted at the state level. Although most governors have always had this power, they have issued only an estimated 175 such pardons in the nation’s entire history. Of that number, 85 percent have been awarded in the 21st century, and of those, nearly 40 percent have gone to minorities, almost all to Black Americans.

When pardons, postmortem or otherwise, are extended, it is usually in one of several types of cases. The easiest are those in which a defendant is proved innocent. An example is that of the Army veteran Timothy Cole, a Black man convicted of rape in Texas in 1985. He died in prison 14 years into a 25-year sentence, after refusing to confess in exchange for parole. Both a DNA mismatch and a subsequent confession by the real rapist established Cole’s innocence. The governor pardoned him in 2009, and a court reversed his conviction.

Sometimes pardons are warranted because social mores or the legal climate has changed. Bayard Rustin, a confidant of Martin Luther King Jr. and an organizer of the storied 1963 March on Washington, was convicted in California in 1953 of vagrancy and lewd conduct under laws routinely used to target LGBTQ people. He was jailed for 60 days and compelled to register as a sex offender. Nearly 70 years later, in 2020, heeding calls from state legislators, Governor Gavin Newsom extended Rustin a posthumous pardon.

Pardons are also occasionally granted when an individual’s accomplishments are thought to compensate society in some way for the crimes committed against it. In 1990, for example, Arizona Governor Rose Mofford pardoned four deceased prisoners convicted of offenses including armed robbery and manslaughter who lost their lives while serving as “inmate labor” on a detail battling a major forest fire.

And then there are the cases in which justice was denied. Although most people think of pardons as exonerations, they are, in fact, generally silent on the question of guilt. Proof of innocence has never been a requirement. If a convicted person can be shown to have been abused to elicit a confession or deprived of a fair trial, for example, a pardon is justifiable.

The story of the Black ice-delivery man John Snowden, set in Annapolis, Maryland, during the Jim Crow era and chronicled in my most recent book, A Second Reckoning: Race, Injustice, and the Last Hanging in Annapolis, is a case in point. In 1918, Snowden was convicted of the murder of a pregnant white woman after questionable treatment by the police and the courts. He lost on appeal, the U.S. Supreme Court declined to review his case, and the governor at the time refused him clemency. He was hanged in what many in Annapolis—Black and white—considered a “legal lynching.”

A reexamination decades later, prompted by local activists, raised troubling issues. Snowden testified that he had been threatened and physically abused by the police, but everything he said during his interrogation was admitted into evidence nonetheless. The legal gymnastics that the prosecution seems to have employed to ensure an all-white jury would be prohibited today. The judge did not permit the defense to impeach the credibility of the two principal witnesses for the prosecution, although they came forward only after a cash reward was offered. And the judge allowed prejudicial testimony about possible rape, even though Snowden was not charged with that crime.

Eighty-three years later, in 2001, Maryland Governor Parris Glendening declined to pronounce Snowden innocent. But, in asserting that “the search for justice has no statute of limitations,” he pardoned him because he believed that Snowden’s hanging was a miscarriage of justice.

Although the bulk of posthumous pardons are not controversial, governors do occasionally take heat for extending them. More than eight decades had passed since Snowden’s execution, but Glendening was nonetheless excoriated by the murdered woman’s great-niece. Insisting that a “pardon has an interpretation of innocence”—even though it technically does not—she said that absent new, exonerating evidence, the governor had no legitimate basis on which to grant the pardon, and that his action was “tainted with political motives.”

When pardons are divisive, “politics” is often cited. In May, when Maryland Governor Larry Hogan issued a sweeping, first-of-its-kind pardon of 34 Black men and boys who were lynched while in state custody, he came in for criticism. Willie Flowers, the head of the state’s NAACP, lambasted Hogan for “political posturing,” insisting that “celebrating himself by reminding people that lynchings happened is not the best thing you can do; it’s actually the least that he could do.”

A letter writer to The Baltimore Sun also objected. He accused the governor of “using flowery language to make some people feel better about the past and themselves, while not solving one real problem facing Black Americans today.”

And that just may get at the nub of the value, and the limitations, of posthumous pardons, especially the recent spate of them extended to Black Americans. They are not really about problem-solving, nor are they a substitution for it; they are about remembering, and about acknowledging error. They do no demonstrable good to the dead, but are all about the living: principally relatives and friends of the deceased, but also their spiritual or political heirs, or simply those interested in or moved by their cases.

How effective are these symbolic acts? Descendants and family members of pardon recipients certainly think they matter. Many have been quite vocal about how meaningful and inspirational they have found the revisiting of such cases. Pamela Hairston Chisholm, who worked for the pardon of the Martinsville Seven, told the press:

This is a day that we will be able to go back to our family members, young and old, and tell them the story of injustice, but also to tell them that you will never give up the fight for justice. If we band together and work together and fight together, we can acquire the end that we seek, because the Martinsville Seven is just one story … of many that have occurred day in and day out.

The day John Snowden’s pardon was finally secured was one of the happiest and proudest days in the life of his niece Hazel, who was born too late to have met her uncle but who believed in his innocence and worked tirelessly for his case’s reexamination. “I could feel his peace,” she told newspapers. And every year since that day in 2001, she has held a gathering in her uncle’s honor to which friends, relatives, and others who helped secure the pardon are invited to celebrate his life. It is a happy occasion, but one with its somber moments. Someone is asked to read the text of the pardon aloud, and someone else recites the soaring rhetoric of Snowden’s last statement, in which, reasserting his innocence, he declared, “I could not leave this world with a lie in my mouth.”

What value do such pardons offer society at large? In 2013, Alabama State Senator Arthur Orr sponsored a state-law amendment to allow for posthumous pardons. Its passage enabled pardons of the Scottsboro Boys, nine Black Alabama teenagers who were accused of raping two white women in 1931 and sentenced to death in rushed, unfair trials. He put it this way: “It’s an important step to show that the Alabama of the 21st century is a different place than it was 80-plus years ago.”

Like downed statues, posthumous pardons do not change public policy. They do not repeal bad laws. They certainly do not have any discernible effect on their recipients. But they have the potential to do much more than simply make people feel a little better about the past. In fact, they may be most valuable precisely for what they promise. In repudiating miscarriages of justice, especially those with racial overtones, such pardons make a statement that what was done in the past was wrong, and they serve as markers that make it more difficult for such wrongs to be repeated. At their best, they have the potential to restore faith in a judicial system in which many people have lost confidence, and to further the work of building a more just, more tolerant, and more equitable society.