Amnesty and Pardon

The constitutional nature of the clemency powers. Such conflicts in this area between the president and Congress have been symptomatic of the uncertainty attached to the constitutional nature of the clemency powers. Another example, the corollary of the Civil War issue, occurred in 1939 when California's legislature debated the grant of an individual pardon (to former labor leader Tom Mooney), and its legal powers to do so were challenged by some academic jurists (Radin).

Traditionally, these powers have been associated with the sovereign authority, and today they are most frequently entrusted to the head of state. This office is generally associated with the executive branch of government, particularly in presidential systems of government. For this reason, the exercise of pardon is often referred to as executive clemency. This, too, is the reason why impeachment has been excluded from the purview of the pardoning power in many jurisdictions: such a power might enable a chief executive to protect his ministers from parliamentary control. It is not altogether clear, however, whether it was in his executive capacity that the sovereign historically exercised these powers; he generally stood at the pinnacle of all three branches of government—legislative, executive, and judiciary—and the precise role of each branch in the decision-making process is controversial. Thus, the mechanism of decisionmaking, and the involvement of ministers and executive officials, judges, and sometimes even legislators in this process, have varied widely from one jurisdiction to another (Sebba, 1977; Stafford). Furthermore, although acts of clemency are in general immune from judicial review, the grounds for this immunity are sometimes stated to be the executive nature of the act—and sometimes its judicial nature.

Clemency powers extend to individual state governors in the United States, who occasionally exercise these powers to reflect contemporary changes in legal norms at the state level.

Contemporary functions of pardon and amnesty. The term pardon is often used generically to describe the power vested in the head of state to grant clemency in individual cases. In this sense it includes such subcategories as full pardon, conditional pardon, commutation, remission, and reprieve. Sometimes, however, it refers only to certain categories. Thus, the U.S. Constitution refers only to pardons and reprieves, the first term incorporating the remaining subcategories.

In recent times, pardons have served three main functions: to remedy a miscarriage of justice, to remove the stigma of a conviction (and the disabilities thereby entailed), and to mitigate a penalty. The first two objectives are usually achieved by means of a full pardon; the other forms are employed for the purpose of mitigating the sentence. These very different objectives have resulted in some confusion as to the legal effects of a pardon. Thus, a pardon is sometimes held to "blot out guilt"—a necessary outcome where the pardon was brought about by a miscarriage of justice, but an inappropriate result in other cases. A commutation substitutes one recognized form of penalty for another. A conditional pardon is more flexible, the only usual requirement being that the condition attaching to the pardon be reasonable. A remission simply implies cancellation of the penalty, wholly or partly. Finally, a reprieve denotes the deferment of a sentence's execution. This mode is typically adopted in capital cases; the penalty is then commuted to a prison term.

An amnesty typically (1) is enacted by legislation instead of being a purely executive act; (2) is applied generally to unnamed persons, that is, to persons who fulfill certain conditions or a description laid down by the law; and (3) is designed to remove ex post facto the criminality of the acts committed. Amnesties are deemed appropriate after a political, economic, or military upheaval. A newly installed regime may hold a different perception of conduct penalized by its predecessor, whereas a consolidated one may wish to indicate its self-confidence by forgiving its erstwhile opponents. These characteristics differentiate amnesty from pardon, which issues from the head of state rather than the legislature, impinges upon the penalty rather than the conviction, and is granted on an individual basis.

Pardons and amnesty compared. The above distinctions are difficult to apply in the United States and many other countries in the common law tradition, for three reasons. First, amnesties are rarely resorted to, and few conventions exist in this matter. Second, as noted above, the distribution of power between the legislature and executive in this area is unclear. Third, granting an individual pardon may, in removing the effects of the conviction, have effects as far-reaching as those of a European amnesty. Thus, the United States Supreme Court once went so far as to say that "the distinction between amnesty and pardon is one rather of philological interest than of legal importance" (Knote v. United States, 95 U.S. 149 (1877)). In at least one other case, however (Burdick v. United States, 236 U.S. 79, 95 (1915)), the Court has indicated the differences between these two concepts, and a state court once declared that "amnesty is the abolition or oblivion of the offence; pardon is its forgiveness"' (State v. Blalock, 61 N.C. (Phil. Law) 242, 247 (1867)).

This distinction may be illustrated by the measures taken with regard to the Vietnam War evaders and deserters by Presidents Gerald Ford and Jimmy Carter, respectively. Ford established a clemency board to consider for a presidential pardon individual petitioners who were willing to fulfill certain conditions. Carter, on the other hand, proclaimed that all persons convicted of certain offenses under the Selective Service Act were to be unconditionally pardoned, and all pending cases closed. Although the latter measure originated with the president rather than the legislature, and was described as a pardon, its generality, purpose, and breadth of scope suggested an amnesty.

In continental Europe, on the other hand, the older distinctions are becoming increasingly blurred. So-called amnesty laws have been introduced for varied purposes, often to remit penalties rather than to remove the criminality of the offense, and sometimes merely as a device for the reduction of prison populations. In France, for example, amnesties have been frequently enacted in recent years; these statutes often cover a broad range of offenses, and have a major impact on pending criminal caseloads and inmate populations. Further, a hybrid institution has been introduced, the grâce amnistiante, whereby the president is empowered to grant pardon (amnesty?) to selected individuals who fall within certain categories designated by the law. Finally, in Italy, the government has been delegated the power to pass legislation granting either amnesty or pardon (indulto).

Amnesty and Truth Commissions. Since the early 1980s, amnesty has developed as a popular method of expediting the transition to representative government. Broad grants of amnesty often followed the establishment of a "truth commission," organized by succeeding governments, nongovernmental organizations, churches, or the United Nations, and mandated to investigate human rights violations of a preceding regime. Used most frequently in Latin America, transitional governments have experimented with amnesty proceedings and "truth commissions" as an alternative to prosecution of human rights violations. However, some commentators have noted that broad grants of amnesty granted either before or after issuance of a truth commission's investigative findings may not comport with customary international law developed since World War II imposing a duty upon states to prosecute human rights violations. Although truth commission findings have often detailed broad cases of human rights violations, these truth commissions often lacked judicial functions to investigate alleged human rights violators. South Africa's Truth and Reconciliation Commission was the first government-initiated truth commission to be granted broad judicial investigatory powers, and also has power to offer conditional amnesty on narrow grounds. Suspected human rights violators who fail to apply for amnesty, which requires full disclosure of all such violations, are subject to investigation and prosecution.