It's a living legal community making laws accessible and interactive. Click Here to get Started »
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 traditionally been used as a political tool of compromise and reunion following a war. An act of amnesty is generally granted to a group of people who have committed crimes against the state, such as treason, rebellion, or desertion from the military. The first amnesty in U.S. history was offered by President George Washington, in 1795, to participants in the Whiskey Rebellion, a series of riots caused by an unpopular 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. history 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 Constitution, 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 common 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 President 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 legislative bodies. In the United States, granting amnesties is primarily a power of the executive branch, though on some occasions Congress 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 of aliens illegally entering the United States by punishing employers who knowingly hired them. However, because of concerns voiced by both employers and immigrant community leaders, the act compromised: it contained provisions for an amnesty giving citizenship to illegal immigrants who had been residents for a set period of time.
Though the Supreme Court has given the opinion that Congress can grant an independent amnesty, it has never expressly ruled on the issue. However, the president's power to grant amnesty autonomously has never been in serious question. The president always has recourse to the pardoning powers granted the office by the Constitution.
During the Civil War period, President Abraham Lincoln offered a series of amnesties without congressional assent to Union deserters, on the condition that they willingly rejoin their regiments. After the war, Lincoln issued a proclamation of amnesty for those who had participated in the rebellion. Though Congress protested the leniency of the plan, it was helpless to alter or halt it. Lincoln's amnesty was limited, requiring a loyalty oath and excluding high-ranking Confederate officers and political leaders. Lincoln hinted at but never offered a broader amnesty. It was not until President Andrew Johnson's Christmas amnesty proclamation of 1868 that an unconditional amnesty was granted to all participants in the Civil War. Amnesty used in this way fosters reconciliation—in this case, by fully relinquishing the Union's criminal complaints against those participating in the rebellion.
Amnesty was used for a similar purpose at the conclusion of the Vietnam War. In 1974, President Ford attempted reconciliation by declaring a conditional amnesty for those who had evaded the draft or deserted the armed forces. The terms of the amnesty required two years of public service (the length of a draft term), and gave evaders and deserters only five months to return to the fold. Many of those whom the amnesty was designed to benefit were dissatisfied, viewing the required service as punishment. On the other hand, many U.S. citizens agreed with President Nixon that any amnesty was out of the question. It was left to President Jimmy Carter, in 1977, to issue a broad amnesty to draft evaders. Carter argued the distinction that their crimes were forgotten, not forgiven. This qualification makes clear the purpose of an amnesty: not to erase a criminal act, nor to condone or forgive it, but simply to facilitate political reconciliation.
Though an amnesty can be broad or narrow, covering one person or many, and can be seriously qualified (as long as the conditions are not unconstitutional), it cannot grant a license to commit future crimes. Nor can it forgive crimes not yet committed.
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 War Resisters 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 under International Law and General Principles of Anglo-American Law: Is a Legitimate Amnesty Possible?" Virginia Journal of International Law 43 (fall): 173–247.
Young, Gwen K. 2002. "Amnesty and Accountability." U.C. Davis Law Review 35 (January): 427–82.