Amnesty is a rare form of clemency that provides immunity from prosecution to a group or class of people. Amnesty is usually confined to political offenses and crimes against the sovereignty of the State, and often involves crimes committed during wars or rebellions. It’s designed to forgive those who violated the law, often to help “bring them back into the fold.”
Although the President can grant amnesty with a proclamation, the power to grant it has traditionally rested with the legislature. Legislative amnesty typically involves repealing or changing the law to ensure that no one can be charged or convicted for violating it. Legislatures make many amnesty laws retroactive in order to include people charged or convicted before the law took effect.
Executive amnesty. The President or a state governor may grant amnesty to a group or class of people by proclamation. For example, in 1974, President Ford issued a proclamation granting immunity to Vietnam War “draft dodgers.”
Legislative amnesty. Congress or a state legislature can provide amnesty by repealing or changing the law to decriminalize (or legalize) the conduct in question. An example—though related to immigration more than traditional notions of criminal law—is a 1986 law signed by President Reagan. That law gave amnesty to noncitizens who had entered the country illegally. Pure legislative amnesty is rare, and whether a law actually provides amnesty is often subject to debate. For example, critics of 2006’s Military Commissions Act contend that, by retroactively rewriting the definition of war crimes to exclude acts like torture and hostage-taking, the law gave amnesty to politicians and government personnel for actions that were war crimes before the amendment.
While pardons and amnesty both eliminate the punishment for a crime, there are some significant differences between the concepts.
An amnesty law or proclamation typically explains why amnesty is being granted and who qualifies for it. Unlike pardons, which are usually issued by one person, legislative amnesty requires the same consensus as for any other piece of law. The chief executive (President or governor) must also sign the law for it to take effect—unless he or she vetoes it and the legislature overrides that veto. It’s therefore not surprising that legislative amnesty can be a much slower process.