Mercy is best enjoyed by the living. The dead, as far as we know, can’t receive the tangible benefits that usually come with a pardon for a criminal act. They can’t get the restoration of their civil rights, such as the right to vote or to serve on a jury. They can’t collect money from the state that would allow them to rebuild their lives. But that doesn’t mean the deceased can’t be pardoned. Lenny Bruce received a posthumous pardon (for obscenity), and so did Oscar Wilde (homosexuality). Such pardons are largely symbolic, a way of reckoning with an unjust past. They are more for the living than the dead.
On Monday the family of George Floyd, killed by Minneapolis cop Derek Chauvin in May 2020, asked for clemency for Floyd, an official request made just six days after Chauvin was found guilty of murder. Floyd’s conviction took place in 2004, after he was arrested near his Third Ward home in Houston for possessing a small amount of crack (a “dime rock”) by notorious HPD officer Gerald Goines. The officer said Floyd had given the drugs to an unnamed informant. For five months, Floyd battled the charges, turning down prosecutors’ offer of two years behind bars in exchange for a guilty plea. But facing 25 years in prison if he went to trial and lost, Floyd finally did plead guilty in exchange for ten months.
Over the past few years, though, allegations have arisen that Goines was a bad cop, one who falsified search warrants and fabricated the existence of informants to strengthen his cases against numerous Houstonians, most of them Black. Goines’s treachery was revealed in 2019 after his tactics led to the shooting deaths of two Houston citizens in what’s known as the Harding Street raid. The Houston Police Department began an investigation, which found that Goines had, as a high court later stated, a “propensity to be untruthful in his undercover drug assignments.” Since then, more than 160 drug convictions have been thrown out—and in August 2019 Goines was charged with two counts of murder.
The 253-page pardon application to the Texas Board of Pardons and Paroles is based on the contention that Goines did to Floyd what he did to many others. “This pardon would correct the record,” wrote attorney Allison Mathis of the Harris County public defender’s office. “It would show that the state of Texas is interested in fundamental fairness, in admitting its mistakes, and in working to increase the accountability for police officers who break our trust and their oaths, and harm our people rather than serve them.”
The office of Harris County district attorney Kim Ogg has endorsed the application. “We fully support a request that the Governor now pardon George Floyd from the drug conviction,” Ogg said in a statement. Her office has known about trouble with the Floyd case for more than two years. In March 2019, after the office discovered Goines’s crooked tendencies, it reached out to Floyd to let him know the officer had been fired and was under investigation. But the letter was sent to Floyd’s mother’s Houston address, and she had died the year before. Floyd was living in Minneapolis and never heard that authorities were going to overturn his conviction—and possibly grant him compensation for his time behind bars.
Only the governor can grant a pardon, and only after a majority of the seven-member board of pardons has recommended one. That’s a high bar. And only once has Texas granted a posthumous pardon, for a man named Tim Cole, more than a decade ago. Cole had been convicted in 1986 of a Lubbock rape. Nine years later another man confessed, but Cole died in prison in 1999 without hearing about it. He was finally cleared by DNA evidence in 2008, and after a judge legally exonerated him, the Innocence Project of Texas filed an application for a posthumous pardon with the board of pardons, which recommended that then-governor Rick Perry grant it. He did so in 2010.
Cole and Floyd share some similarities. Both became iconic figures after their deaths. While Floyd has become the face of Black Lives Matter—his visage seen in murals and posters across the country—Cole became the name attached to numerous reforms passed by the Texas Legislature over the past decade, including the Tim Cole Act (which set annual compensation for exonerees at $80,000), the Tim Cole Advisory Panel on Wrongful Convictions, and the Timothy Cole Exoneration Review Commission. In 2014 he was memorialized with the erection of a thirteen-foot statue in Lubbock.
But there are big differences between the two cases. While Cole was proved innocent—exonerated by DNA—Floyd had a number of criminal convictions from his time in Houston. From 1997 to 2007, he pleaded guilty or no contest to eight other crimes. Many of them were low-level offenses, the kind that other young Black men living in the Third Ward were also caught up in: possession of crack, trespassing, failure to identify. But there was one exception, a 2008 aggravated robbery with a deadly weapon, in which the victim of a home invasion, a pregnant woman, identified Floyd as the man who held a pistol on her while his accomplices robbed her apartment. Floyd pleaded guilty and went to prison for four years.
Mathis is aware of the differences—and realistic about her client’s chances. “If I thought there was zero chance, I wouldn’t bother to have done it. I mean, George Floyd is already dead. Getting his rights reinstated through a pardon doesn’t actually matter. His rights were already taken away from him. The point is to draw attention to the fact that there was continued police misconduct in George’s life from Gerald Goines in 2004 to Derek Chauvin in 2020.”
Cole’s brother Corey Session, who consulted with Mathis on the application, is still angry that Floyd wasn’t told about Goines when it could have helped him—when he was still alive. If Floyd had been found innocent by a court, he would have been eligible for compensation, which Session calculates would have been about $60,000. “I wish the DA’s office had been more proactive in searching for him. A returned letter is not where you stop. They could have done a Social Security search—but didn’t. They have investigators—they could’ve found him.” (Ogg’s office couldn’t be reached for a comment.)
It’s hard to say which is the biggest hurdle for the application: the board of pardons or the governor. From 2015 to 2020, the board received 1,032 applications and recommended 167, about one in seven. Abbott has been particularly stingy with pardons, granting 37 in his six years in office. Most of them were for low-level offenses (DWI, credit card abuse, criminal mischief) for which the convict was granted probation or did time in a county jail.
It’s hard to say how Abbott would approach the Floyd application. In the weeks after Floyd’s death, the governor seemed genuinely moved by the horror of what he witnessed in Minneapolis and talked about a possible George Floyd Act in Texas. But this spring, as a police-reform law called, in fact, the George Floyd Act was introduced in the Legislature, Abbott has been largely silent on the bill, while emphasizing his support for law enforcement and threatening to punish Texas cities that cut the budgets of their police departments, as Austin’s Democratic leaders did last year. (At this point, the legislation appears to be dead in the water.) Attorney Bill Habern, who has worked on dozens of pardons over the past sixty years (including Cole’s), isn’t optimistic about Floyd’s chances. “If it were just one conviction, I’d say maybe. If it were eight convictions, I wouldn’t say it wouldn’t happen, but I’d be surprised if it did.”
Gary Udashen, a board member of the Innocence Project of Texas, acknowledges that a pardon, even if it were to happen, would have been much more meaningful when Floyd was alive. But he doesn’t believe that means it’s an empty gesture. “A pardon would be symbolic for Floyd’s family,” he says. “But it would also be symbolic for Texas—to say this is something we’ll do because it’s the fair thing to do.”