In the last eight years, President Obama has used presidential clemency power to start reforming our criminal justice system. Now, a group of activists are urging him to use it to heal a scar left by the civil rights era by giving a posthumous pardon to black nationalist activist Marcus Garvey.
The civil rights leader, most famous for advocating that African-Americans return to Africa in the early 1900s, was an early fighter against colonialism and is seen as a national hero in his native Jamaica. He was convicted of mail fraud in 1923 in what many historians see as a racially motivated prosecution intended to cut off Garvey's organizing of black Americans and silence civil rights leaders.
This afternoon, on what would be Garvey's 129th birthday, Garvey's family and supporters will hold a press conference in D.C. asking Obama to grant a petition for pardon. While posthumous pardons are rare, there is precedent under Presidents Bill Clinton and George W. Bush.
Garvey arrived in New York on a ship from Kingston in 1916. He toured the country and became a political organizer in Harlem, where he gave street corner speeches advocating for economic independence for black Americans. He started a steamship company, the Black Star Line, which was intended to facilitate trade and travel between African-Americans and African countries, and raised more than a million dollars from around the country.
As Garvey's popularity grew, he attracted the attention of a young J. Edgar Hoover, who then worked for the agency that preceded the FBI and was tasked with tracking figures with radical or Communist beliefs. Hoover put Garvey under surveillance, and in October 1919, he wrote a memo about his investigation of the activist. Garvey had “been particularly active among the radical elements in New York City in agitating the negro movement," Hoover wrote. "Unfortunately, however, he has not as yet violated any federal law whereby he could be proceeded against on the grounds of being an undesirable alien, from the point of view of deportation.”
Four years later, Hoover's investigations led to Garvey's arrest. He was charged with mail fraud in 1923, accused of trying to defraud his customers by advertising a ship that was not yet in his possession. In a monthlong trial in New York, Garvey fired his lawyer and defended himself. But even though his three co-defendants were found not guilty, Garvey was convicted.
Modern day research suggests that the trial was politically motivated to blunt the rise of a powerful black organizer. “This is part of a long history of black leaders being put through persecution as prosecution,” Justin Hansford, a St. Louis University law professor who has written several papers on Garvey's trial, told me. He noted that Hoover used the same surveillance tactics on later civil rights leaders like Martin Luther King, Jr. and Malcolm X (both of whom saw Garvey as a hero).
Garvey was sentenced to five years in federal prison in Atlanta. He was released in November 1927 after President Calvin Coolidge commuted his sentence, and was immediately deported from New Orleans to Jamaica, and later lived in London. He never returned to the U.S. before he died in 1940.
For decades, Garvey's family and supporters have worked to clear his name, arguing that he deserved a presidential pardon to clear his legacy. Several African-American political leaders have publicly supported the effort. New York Congressman Charles Rangel first introduced a Congressional resolution urging the president to pardon Garvey back in 1987, and Congress held a hearing on Garvey's innocence that year. More recently, Rangel’s latest resolution calling for a Garvey pardon received nine congressional co-sponsors in 2011, but was never voted on.
Garvey's family gave new life to the effort in June by filing an official petition for a presidential pardon with the Department of Justice. The petition—which was worked on pro bono by Akin Gump Strauss Hauer & Feld, one of the most prominent law firms in D.C.—lays out the case for why Garvey deserves a pardon, just like it would with a defendant who's still alive.
It's not clear how well-received the petition will be. Obama has commuted the sentences of more inmates than any president since Gerald Ford, most serving long sentences for drug crimes, but he's granted far fewer pardons. There is precedent for posthumous presidential pardons: In 1999, Bill Cinton pardoned Lt. Henry Ossian Flipper, the first African-American to graduate from West Point, who was court-martialed and dismissed from the Army in 1881 in what many saw as a racist prosecution. In 2008, George W. Bush pardoned Charles Winters, a businessman who was imprisoned for smuggling bombers to Israel in 1948.
But Obama's Justice Department has signaled its reluctance to consider pardons for people who are already dead. “It is the general policy of the Department of Justice not to accept for processing applications for posthumous pardons for federal convictions,” the department’s website reads. “The limited resources available to process applications for Presidential pardon are best dedicated to applications submitted by living persons who can truly benefit from a grant of clemency.”
Hansford, the law professor, said an exception should be made for Garvey. “The normal case where the Justice Department has to spend time and resources investigating the innocence of someone applying doesn’t apply for Garvey because there’s been lots of historical research,” Hansford, who was involved in writing the petition, said. “We’ve presented a very comprehensive brief.” The Justice Department did not respond to a request for comment about the Garvey petition.
In addition to the members of Congress, Garvey has prominent international support. When Obama visited Jamaica last year, Portia Simpson-Miller, the prime minister, officially asked him to grant Garvey a pardon.
It's more personal for Julius Garvey, Marcus' youngest son, who is now a surgeon living on Long Island. Julius last saw his father as a five-year-old boy growing up in London, where the family lived in Garvey's later years. He remembers going to the movies and throwing snowballs in the backyard with his dad. As he grew up, though, he said people would tell him that his father was a criminal. “It affects everybody negatively, the heaviest burden is on his family,” Julius told me in an interview.
I asked Julius what his father would think about the continuing prevalence of racism in America today. “In the last 100 years, there’s been outward progress for a small elite, but by and large the black population has been left behind since the civil rights era,” he said. "I think he'd be very disappointed."
Casey Tolan is a National News Reporter for Fusion based in New York City.