Earlier this week, the United Kingdom’s Queen Elizabeth II posthumously pardoned Alan Turing. Turing, a mathematician and early computer scientist, is perhaps best known for two contributions. He proposed what has come to be called the “Turing Test” in artificial intelligence theory, used to test a machine’s ability to exhibit intelligent behavior indistinguishable from that of a human. Turing also spearheaded the cryptography team at Bletchley Park in England that cracked the Nazi’s Enigma Code. His work contributed mightily to the Allies’ eventual victory in World War II.

Turing, one of the best minds of his generation or most others, was also openly gay. He was convicted of the crime of “gross indecency” in 1952, for admitting to a consensual sexual relationship with another adult man. With the conviction, the British authorities rescinded Turing’s security clearance and subjected him to ongoing monitoring, fearing that his homosexuality increased the risk of blackmail by the Soviets and enemies of the Crown. They also offered Turing a deal: he could avoid prison for his crime if he agreed to hormone treatments that would severely lower his testosterone levels, effectively eliminating his sex drive and rendering him impotent. Alan Turing chose chemical castration, answering one of the worst “which would you rather?” questions most men of any sexual orientation can imagine. Two years later, in 1954, Turing’s housekeeper found him dead, after he apparently ate a cyanide-laced apple. British authorities ruled his death a suicide.

Turing was prosecuted under Section 11 of the Criminal Law Amendment Act of 1885, commonly referred to as the Labouchere Amendment, which provided that “[a]ny male person who, in public or private, commits [ . . . ] any act of gross indecency with an other male person [ . . . ] shall be liable at the discretion of the Court to be imprisoned for any term not exceeding two years, with or without hard labour.” Convictions under the Labouchere Amendment carried sentences much lighter than for the UK’s actual sodomy law — death until 1861, then life imprisonment in later years — but were much easier to obtain in practice. The Sexual Offences Act of 1967 partially repealed the Labouchere Amendment, though some of the provisions remained officially in place until the passage of the Sexual Offences Act of 2003.

Turing’s pardon this week arrived after a public campaign seeking redress for the maligned genius, whose cause was bolstered by the high-profile support of physicist Stephen Hawking and other public intellectuals. A pardon, while ostensibly a recognition of the good deeds of a man whose mind was largely responsible for saving the free world as we know it, seems to me altogether the wrong thing….

As a preliminary matter, let me state clearly that I disagree with the now-repealed law responsible for Turing’s conviction and consider it shameful that such an extraordinary man suffered such tragedy in his too-short life. I endorse then-Prime Minister Gordon Brown’s 2009 apology to Turing. In fact it is because of, not in spite of, those views that I think Turing’s pardon this week was a mistake.

First, Turing’s individual pardon insults the other men who were convicted under the same draconian “indecency” laws but who didn’t have the good fortune of being world-famous intellectuals. Why does Turing get a pardon and they don’t?

Thousands of men, between fifty- and seventy-five-thousand, by most estimates, were convicted of violating the gross indecency statute. Approximately 15,000 of those men are still alive today. Thanks to the Protection of Freedoms Act of 2012, the British government now offers an online application form for “Disregarding convictions for decriminalised sexual offences” where individuals convicted of any crimes involving consensual sex between men over the age of consent may apply for a formal disregard of their convictions. The PFA’s procedure is intended to function like an expunction of the conviction from the applicant’s criminal records. No man applying for a job or a lease now should have to explain a sex crime conviction for getting caught with his boyfriend decades ago. The result of this procedure, however, is not a pardon.

The move that ultimately led to Turing’s pardon originally began with just such an application filed on his behalf. Because the applications are only intended for living individuals, though, Turing’s supporters eventually chose to seek a pardon instead. Other men convicted under the same law for the same conduct as Alan Turing don’t get pardons.

Second, Turing’s pardon is a mistake because it does not fit the definition of a pardon. Or, to the extent that it does, it is more of an insult to the man and his legacy than it is a long-awaited vindication.

Pardons generally, and the UK’s “Royal Prerogative of Mercy” in Turing’s case, are usually understood as a government’s offer of forgiveness for a crime and the withholding of any still-outstanding punishment required by the original sentence. Pardons don’t nullify a guilty verdict. They don’t repeal the statute under which the pardonee was convicted. Pardons are typically granted when either (1) the person is actually innocent of the crime for which he was convicted, or (2) the person demonstrates that, although actually guilty of the crime, he has paid his debt to society independent of the remaining sentence.

Turing’s case does not present an actual innocence claim. Turing was not wrongfully convicted of a rightful law. He was rightfully convicted of a wrongful law. His actions violated the then (unfortunately)-applicable law. Turing freely admitted as much. The problem then was not that, despite his conviction, Turing’s conduct did not actually meet the elements of the statute. The problem was with the existence of the statute itself.

If, on the other hand, the UK pardoned Turing because the Crown believes that his extraordinary service as a code-cracker in World War II paid the debt he owed to society for his crime, then the pardon is also a mistake. To do so assumes that there is an actual debt owed. If being such a useful, patriotic, brilliant gay man redeems you in the eyes of the Crown, that legitimizes the supposed need for redemption.

Does any gay person want to be redeemed in the eyes of their government only because of other good deeds? Isn’t an underlying premise in arguments for gay rights that gay men and lesbians don’t need to apologize or compensate for their sexual orientations in order to be held in high regard in civilized society? Or at least not be chemically castrated by that society?

A pardon is essentially a way of the Crown forgiving Turing for engaging in consensual gay sex… when it should be men like Turing who should be asked to forgive the Crown. It’s like saying, “Hey, Al, do you remember that time, back in the day, when we chemically castrated you for no good reason? Yeah? Well, we forgive you. Also, you’re dead.” I’m a conservative, straight woman, hardly the most obvious gay-rights crusader, but that line from the British government strikes even me as a back-handed gesture. Alan Turing, and the thousands of men who suffered as he did, deserve better.

Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. After graduation, she clerked on the U.S. Court of Appeals for the Fifth Circuit. She will be working at the Center for Legal Pedagogy at Texas Southern University during the 2013-2014 academic year. She looks forward to a career of teaching and writing about, but never practicing, law. You can reach her at [email protected]

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