California Governor Gavin Newsom’s 2020 program to pardon people prosecuted under anti-LGBTQ+ laws has resulted in only two pardons being granted so far – one to a living man and one posthumously. The living man, Henry Pachnowski of Maryland, was charged with lewd conduct for having consensual sex with another man in Orange County, California, in 1967. Pachnowski served 10 days in jail, and Newsom pardoned him last year. The posthumous pardon went to Bayard Rustin, a legendary civil rights advocate and key aide to Martin Luther King who was convicted under a vagrancy law for consensual sex with a man in California in 1953.
Newsom announced the pardon initiative to address the long history of anti-LGBTQ+ laws used as legal tools of oppression and stigmatization across the US, including in California. Although California decriminalized gay sex in 1975 and allows people convicted for consensual adult sexual activity to request removal from the sex offender registry, that does not remove the conviction or amount to a pardon.
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Critics of the pardon program say that it is limited and falls short of addressing current discrimination against LGBTQ+ people in the justice system, including longer sentences and more stringent discipline when incarcerated, as well as disproportionate imprisonment and violence during their sentences. Attorney Jennifer Orthwein stated that “optically this initiative appears to be righting a historical wrong, it really has very little, if any, impact on the actual lives of the people subjected to discriminatory laws in the first place”.
Bamby Salcedo, president and chief executive of the TransLatin@ Coalition, urged Newsom to look at the convictions of transgender people who had to engage in sex work or other criminalized activity due to anti-trans discrimination. Attorney Josh Kim noted that pardons are rare, and the process is more public and difficult than expungement. He also stated that “symbolic relief is not nothing”, but that “we should look at relief that benefits everybody”.
While Newsom welcomes input on this program, eligible people are encouraged to seek pardons or other remedies for unjust convictions. State Senator Scott Wiener, a gay man who pushed for Rustin’s pardon, stated that “These are historically horrific criminal laws that destroyed countless people’s lives,” and that the low uptake of this program could be due to shame or a lack of knowledge.
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