The governor launched the LGBTQ California Clemency Initiative in February 2020 and vowed to eradicate “historic homophobia” in the criminal justice system by offering pardons to people “subjected to discriminatory arrest and prosecution.” The program focuses on charges such as vagrancy, loitering and sodomy that were used to target LGBTQ people and may remain on their criminal records decades later.
But besides a posthumous pardon announced with its launch of renowned civil rights activist Bayard Rustin, who died in 1987, only one other person has benefited so far. Henry Pachnowski, an 83-year-old man living in Maryland, was pardoned last year for a lewd conduct charge for participating in consensual sexual activity with another man in Orange County in 1967.
“I am thrilled that this finally happened. I thought I was going to die with that,” said Pachnowski, a Holocaust survivor who moved to the United States when he was 11 and lost his green card in the 1960s because of a marijuana possession charge — the only other citation on his record. “My life really hasn’t been the happiest. It almost feels like now I’m whole.”
Gay rights advocates are calling for Newsom to issue more pardons for people like Pachnowski, and for broader clemency actions for LGBTQ people in prison currently.
Pardons are part of the governor’s clemency powers under the state Constitution and sought by people who have served their time in prison and believe they have proved they are rehabilitated. Pardons can reinstate some civic rights including the right to own a firearm or serve on a jury. In California, pardons have helped people avoid deportation and provided housing and job opportunities that were limited by past convictions.
“We were very thankful and very happy with the initiative when it launched,” said Jorge Reyes Salinas, spokesperson for Equality California, which advocates for LGBTQ rights. “People are still alive in California impacted by these laws, and seeing more of these pardons take place would really impact tremendously the life of someone, regardless of their age, and how they are accepted and reintroduced back into the community.”
Newsom — who made his name as a gay rights champion when he issued same-sex marriage licenses as mayor of San Francisco before it was legal — urged Californians to apply three years ago. He said the state was “turning the page on historic wrongs.”
He would “work to identify eligible pardon candidates and diligently process applications with the express goal of pardoning eligible individuals,” Newsom said then.
The governor’s office, though, has not tracked information about applications related to the program.
Izzy Gardon, a spokesperson for Newsom, said in a statement that “given the public nature of the pardon process,” people often seek alternative criminal record remedies instead that “may provide more meaningful concrete legal relief.”
That includes dismissals and certificates of rehabilitation issued by judges, he said. Gardon encouraged people who have been prosecuted for lawful conduct because of their LGBTQ status to apply for pardons “or other legal remedies.”
“The governor’s office welcomes further input from advocacy groups and others on this effort,” Gardon said.
The pool of potential pardon candidates could be small and apply only to elderly LGTBQ people; California repealed a law that made consensual gay sex a crime in 1975. But activists say the program can have a meaningful effect.
While the state in 1997 established a process for LGBTQ people to seek removal from the sex offender registry for charges related to consensual adult sexual conduct, the underlying convictions can remain on records.
In his application for a pardon, Pachnowski said clemency would “not only recognize the injustice that I suffered” but would also ensure that “I do not face any future obstacles such as employment and housing related ones.”
Pachnowski spent 10 days in jail for engaging in consensual sexual activity with a man in a car in a deserted industrial area more than 50 years ago. A security guard who caught Pachnowski and his partner told them they had “gone against God and nature,” he said.
The pardon program’s stagnancy is proof that it was too narrow of an attempt to meaningfully help LGTBQ people affected by the criminal justice system, said Colby Lenz, an activist with the California Coalition for Women Prisoners who advised Newsom’s staff when the program was created.
“We are looking for a way to take this symbolic recognition and make it real,” Lenz said.
Newsom has named both prison reform and LGBTQ civil rights protections as priorities of his administration. He signed a law in 2020 that allows incarcerated transgender, nonbinary and intersex people to choose whether to be housed in a men’s or women’s facility. Last year, he signed a controversial bill that repealed anti-loitering laws at the urging of LGBTQ advocates who said police used it to disproportionately target transgender sex workers.
Groups including the Transgender Law Center, Survived & Punished and Flying Over Walls are calling on the governor to grant more commutations, which may shorten current prison sentences, as studies show that LGBTQ people — especially transgender people — are more likely to be incarcerated and face more violence in prison.
Lesbian, gay and bisexual people are incarcerated at three times the rate of heterosexual people, according to the nonprofit Prison Policy Initiative. Although data are more limited for incarcerated transgender people, 1 in 6 have reported they have served time, according to the initiative.
Jennifer Orthwein, an Alameda-based attorney who represents LGBTQ clients, who formerly worked as a forensic psychologist in state prisons, said people are still being discriminated against by the justice system but not in the overt ways of the past. Orthwein said LGBTQ clients not only face overly harsh sentences but see harsher discipline in prison compared to straight people, which in turn makes it harder for them to be granted parole.
“While 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,” Orthwein said. “I think if Gov. Newsom wants to have an actual impact on the current discrimination LGBTQ+ people face, he should take a look at the discriminatory laws that are disparately impacting LGBTQ+ folks right now and apply equitable solutions.”
Bamby Salcedo, a transgender activist based in Los Angeles, wants to see the initiative expanded to benefit people like her.
(Andrew Harnik / Associated Press)
Salcedo, president and chief executive of the TransLatin@ Coalition, traveled to the United States illegally as a minor and has been denied the type of visa she seeks because of past convictions. A pardon from the governor could change what she called an “unstable immigration status.”
She spent years in and out of jail from 1988 to 2000 for crimes including possession of a controlled substance, petty theft and prostitution, according to records. Salcedo, 53, said she was a drug addict struggling to survive, and though she was not charged with crimes openly targeting her because of her identity, the discrimination she faced as a transgender woman contributed to her contact with the justice system, she said.
“I was not able to obtain employment or proper healthcare. Being that there was no opportunities for me as a young trans woman, the only venue to survival was the street economy,” Salcedo said. “I have been able to reform my life and do a lot of good. I’ve been clean for more than 22 years.”
Salcedo, who was appointed to Newsom’s Commission on the State of Hate last year, said the current pardon initiative is too limited.
“If the governor is saying he is giving priority to a particular population, the actions don’t show that,” Salcedo said.
Josh Kim, an attorney who works for Root & Rebound, an organization that provides legal support to those “harmed by mass incarceration,” does not typically recommend people seeking to clear their records apply for a gubernatorial pardon. Pardons are rare and more publicized and time consuming compared with other routes like expungement, which does not erase charges from records but updates them to signal they have been dismissed, he said.
“To rely on pardons — this executive grant of mercy that is exceptional almost by definition — as a form of policy, I think it’s a misguided effort. We should look at relief that benefits everybody,” Kim said. “But it doesn’t mean my clients wouldn’t want it. Symbolic relief is not nothing.”
In response to activists’ calls for commutations, Newsom’s spokesperson said that LGBTQ people in prison can apply for commutations “to redress unjust legal outcomes” in their cases.
“Every clemency application received by the governor’s office receives careful consideration, and there are many factors the governor weighs before granting clemency in an individual case,” Gardon said.
Since elected in 2019, Newsom has called his executive clemency power “an important part of the criminal justice system.”
While in office, the governor has issued 123 commutations, 140 pardons and 35 medical reprieves.
A Times investigation found that as of January, a third of people granted commutations remained behind bars due largely to a process that defers to the Board of Parole Hearings despite Newsom’s executive authority to free people from prison.
Calls by Black and LGTBQ state lawmakers for Rustin to be pardoned after his death were the impetus for Newsom’s program. Rustin, who advised the Rev. Martin Luther King Jr., was convicted of vagrancy in California for engaging in consensual sexual activity with a man in 1953.
President Obama also awarded Rustin, who was influential in the 1963 March on Washington, the Presidential Medal of Freedom in 2013.
State Sen. Scott Wiener (D-San Francisco) was influential in Rustin’s posthumous pardon.
Wiener said in an interview this week that he was “very grateful” to the governor for creating the initiative but has not been involved in its operation. Wiener worried that the program has been held back because of fear, especially among LGBTQ elders.
“These are historically horrific criminal laws that destroyed countless people’s lives,” he said. “I don’t know exactly why the uptake of this program has been so low but it could be a combination of shame and of people not knowing about it.”