AMNESTY
The action of a government by which all persons or certain groups of persons who have committed a criminal offense—usually of a political nature that threatens the sovereignty of the government (such as SEDITION or treason)—are granted IMMUNITY from prosecution.
Amnesty allows the government of a nation
or state to “forget” criminal acts, usually before
prosecution has occurred. Amnesty has tradi-
tionally been used as a political tool of compro-
mise and reunion following a war. An act of
amnesty is generally granted to a group of peo-
ple who have committed crimes against the
state, such as TREASON, rebellion, or desertion
from the military. The first amnesty in U.S. his-
tory was offered by President GEORGE WASHING-
TON, in 1795, to participants in the WHISKEY
REBELLION, a series of riots caused by an unpop-
ular excise tax on liquor; a conditional amnesty,
it allowed the U.S. government to forget the
crimes of those involved, in exchange for their
signatures on an oath of loyalty to the United
States. Other significant amnesties in U.S. his-
tory were granted on account of the Civil and
Vietnam Wars.
Because there is no specific legislative or
constitutional mention of amnesty, its nature is
somewhat ambiguous. Its legal justification is
drawn from Article 2, Section 2, of the Constitu-
tion, which states, “The President . . . shall have
Power to grant Reprieves and Pardons for
Offences against the United States, except in
Cases of Impeachment.” Because of their com-
mon basis, the difference between amnesty and
pardon has been particularly vexing. In theory,
an amnesty is granted before prosecution takes
place, and a pardon after. However, even this
basic distinction is blurry—President GERALD R.
FORD, for example, granted a pardon to Presi-
dent RICHARD M. NIXON before Nixon was
charged with any crime. Courts have allowed the
two terms to be used interchangeably.
The earliest examples of amnesty are in
Greek and ROMAN LAW. The best documented
case of amnesty in the ancient world occurred in
403 B.C. A long-term civil war in Athens was
ended after a group dedicated to reuniting the
city took over the government and arranged a
general political amnesty. Effected by LOYALTY
OATHS taken by all Athenians, and only later
made into law, the amnesty proclaimed the acts
of both warring factions officially forgotten.
In other nations in which amnesties are
accepted parts of the governing process, the
power to grant amnesty sometimes lies with leg-
islative bodies. In the United States, granting
amnesties is primarily a power of the EXECU-
TIVE BRANCH, though on some occasions Con-
gress may also initiate amnesties as part of legislation. The Immigration Reform and Control Act of 1986 (100 Stat. 3359, 8 U.S.C.A. §1101) attempted to reduce the number ofALIENS illegally entering the United States bypunishing employers who knowingly hiredthem. However, because of concerns voiced byboth employers and immigrant communityleaders, the act compromised: it contained provisionsfor an amnesty giving citizenship to illegalimmigrants who had been residents for a setperiod of time.Though the Supreme Court has given theopinion that Congress can grant an independentamnesty, it has never expressly ruled on theissue. However, the president’s power to grantamnesty autonomously has never been in seriousquestion. The president always has recourseto the pardoning powers granted the office bythe Constitution.During the Civil War period, PresidentABRAHAM LINCOLN offered a series of amnestieswithout congressional assent to Union deserters,on the condition that they willingly rejoin theirregiments. After the war, Lincoln issued aproclamation of amnesty for those who had participatedin the rebellion. Though Congressprotested the leniency of the plan, it was helplessto alter or halt it. Lincoln’s amnesty was limited,requiring a loyalty oath and excluding highrankingConfederate officers and political leaders.Lincoln hinted at but never offered abroader amnesty. It was not until PresidentANDREW JOHNSON’s Christmas amnesty proclamationof 1868 that an unconditional amnestywas granted to all participants in the Civil War.Amnesty used in this way fosters reconciliation—in this case, by fully relinquishing theUnion’s criminal complaints against those participatingin the rebellion.Amnesty was used for a similar purpose atthe conclusion of the VIETNAM WAR. In 1974,President Ford attempted reconciliation bydeclaring a conditional amnesty for those whohad evaded the draft or deserted the armedforces. The terms of the amnesty required twoyears of public service (the length of a draftterm), and gave evaders and deserters only fivemonths to return to the fold. Many of thosewhom the amnesty was designed to benefit weredissatisfied, viewing the required service as punishment.On the other hand, many U.S. citizensagreed with President Nixon that any amnestywas out of the question. It was left to President JIMMY CARTER, in 1977, to issue a broadamnesty to draft evaders. Carter argued the distinctionthat their crimes were forgotten, notforgiven. This qualification makes clear the purposeof an amnesty: not to erase a criminal act,nor to condone or forgive it, but simply to facilitatepolitical reconciliation.Though an amnesty can be broad or narrow,covering one person or many, and can be seriouslyqualified (as long as the conditions are notunconstitutional), it cannot grant a license tocommit future crimes. Nor can it forgive crimesnot yet committed.
FURTHER READINGS
Barcroft, P. 1993. “The Presidential Pardon—A Flawed Solution.”Human Rights Law Journal 31 (December):381–94.Damico, A. 1975. Democracy and the Case for Amnesty.Gainesville, Fla.: Univ. Presses of Florida.Hagan, John. 2001.Northern Passage: American Vietnam WarResisters in Canada. Cambridge, Mass.: Harvard Univ.Press.Kane, Joseph N. 1981. Facts about the Presidents. New York:Wilson.Norton, M., et al., eds. 1991. A People and a Nation. Boston:Houghton Mifflin.Slye, Ronald C. 2002. “The Legitimacy of Amnesties underInternational Law and General Principles of Anglo-American Law: Is a Legitimate Amnesty Possible?” VirginiaJournal of International Law 43 (fall): 173–247.Young, Gwen K. 2002. “Amnesty and Accountability.” U.C.Davis Law Review 35 (January): 427–82.
