Posthumous Pardons

ABSTRACT:

Executive clemency for the dead is not unknown in American history, but it is rare. In recent years, there have been several high-profile instances, emblematic of an incipient trend that figures to grow as Americans become more conscious of, and determined to rectify, past injustices perpetrated under color of law. Posthumous pardons are inevitably celebrated for repudiating past injustices and restoring faith in the legal system.

This Article views this widely praised phenomenon with skepticism. With the goal of piercing the rhetorical fog that envelops this issue, it considers the legal merits of two recent cases: the “Martinsville Seven,” who were pardoned, and George Floyd, who was not. From these examples, the Article draws cautionary lessons on the appropriate uses of pardons to exonerate the dead. In short, the benefits are generally reaped by the politicians issuing them; the costs are borne by the living individuals whose meritorious cases for pardons were never considered. A pardon is a legal remedy designed to achieve concrete objectives, such as the liberation of a wrongly convicted, excessively punished, or genuinely repentant person. Except in extraordinary circumstances, involving the most clearly proven and outrageous injustices, when the putative beneficiary is already dead, a pardon is an ill-chosen vehicle for the delivery of nebulous symbolic benefits.