California LGBTQ Pardon Initiative Falls Short
by Chuck Sharman
Three years after Gov. Gavin Newsom (D) unveiled a plan to pardon LGBTQ Californians prosecuted for their sexual orientation, the program has exactly one living beneficiary: Henry Pachnowski, 83, whose 1967 lewd conduct conviction was pardoned in 2022.
“While this initiative may appear to rectify historical wrongs, it has little, if any, impact on the actual lives of those subjected to discriminatory laws,” declared Jennifer Orthwein, an attorney representing LGBTQ clients who is also a forensic psychologist in state prisons.
Launched in February 2020, the initiative was focused on pardoning vagrancy, loitering and sodomy charges historically used to target LGBTQ individuals. Pachnowski, a Holocaust survivor, was caught engaging in consensual sex with another man outside an Orange County warehouse. He said he was “thrilled that this finally happened.”
“I thought I was going to die with that burden,” he added. “It almost feels like now I’m whole.”
The first pardon under the program was granted posthumously to civil rights activist Bayard Rustin, who died in 1987. Convicted of vagrancy in 1953 for engaging in consensual sexual activity with another man, he was also posthumously awarded the Presidential Medal of Freedom in 2013 by former Pres. Barack Obama (D).
State Sen. Scott Wiener (D), who played a key role in securing Rustin’s pardon, lauded the initiative and speculates low uptake may be due to shame and lack of awareness among LGBTQ elders. The pool of pardon candidates skews older, since California repealed its law criminalizing consensual gay sex in 1975. A process established in 1997 allows those charged for consensual adult sexual conduct to seek removal from the sex offender registry, too.
But the underlying convictions persist on records until there is a pardon, which also restores civic rights, like owning a firearm or serving on a jury. In California, pardons have also helped people avoid deportation and expanded housing and employment opportunities previously limited by past convictions.
“We were very thankful and very happy with the initiative when it launched,” recalled Jorge Reyes Salinas, spokesperson for LGBTQ advocacy group Equality California.
However, the governor’s office has not tracked program applications. Izzy Gardon, a spokesperson for Newsom, said that people often pursue alternatives to pardons, such as dismissals and certificates of rehabilitation issued by judges.
That’s because pardons are rare, highly publicized and time-consuming, explained Josh Kim, an attorney at Root & Rebound, which provides legal support to those affected by mass incarceration. Expungement, by contrast, simply updates records to reflect dismissals without erasing the charges. As a result, Kim generally does not recommend applying for pardons, and relying on them as a form of policy is misguided, he believes. However, he acknowledges that his clients may still desire pardons for their symbolic relief.
Added Colby Lenz, an activist with the California Coalition for Women Prisoners and an advisor to Newsom’s staff during the program’s creation, “We are looking for a way to take this symbolic recognition and make it real.”
In his pardon application, Pachnowski said clemency would not only acknowledge the injustice he suffered but also ensure that he would not face future obstacles in housing or employment. LGBTQ discrimination persists in the justice system, too, Orthwein asserts, though it may be less overt than in the past. Her LGBTQ clients not only receive overly harsh sentences but also endure harsher discipline in prison, making it more challenging for them to obtain parole, she said.
Groups including the Transgender Law Center, Survived & Punished, and Flying Over Walls, want the governor to grant more commutations to LGBTQ individuals. Studies indicate that LGBTQ people, particularly transgender individuals, are more likely to be incarcerated and face heightened violence in prison. According to the nonprofit Prison Policy Initiative, lesbian, gay, and bisexual individuals are incarcerated at three times the rate of heterosexual people, and while data on incarcerated transgender people are limited, one in six has reported serving time. [See: PLN, Dec. 2022, p.38.]
Since taking office in 2019, Newsom has issued 123 commutations, 140 pardons, and 35 medical reprieves. However, a third of those granted commutations remain incarcerated since the process defers to the Board of Parole Hearings, despite Newsom’s executive authority to grant release from state prison.
Source: Los Angeles Times