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Encyclopedia of American Immigration, 2nd Edition

Amnesty

by Thomas Clarkin

Definition: General pardon made by a government, often for political reasons, which forgives past offenses, whether or not the individuals have been convicted of those crimes

Significance: Although amnesty can be applied to many groups of people for a wide variety of crimes, in recent years this term has mainly been associated with the debate over whether to offer a path to citizenship for individuals who are living in the United States without legal authorization.

Amnesty is a government action that grants immunity from prosecution to an identified group of people for a specified criminal offense. The term is derived from the Greek word meaning “oblivion,” which is appropriate, because amnesty involves the “forgetting” of an offense. Although accused individuals do not have to exchange information or testimony to receive amnesty, they are expected to abide by all laws in the future. In some cases grants of amnesty are conditional, requiring a loyalty oath or community service. The difference between amnesties and pardons is not well defined, but amnesties are typically granted to persons before prosecution has taken place, while pardons are usually granted to persons after their trial and conviction.

In the United States, at the federal level, both the president and Congress can grant amnesties. The president’s authority derives from Article II, section 2 of the U.S. Constitution, which gives the president the “Power to grant Reprieves and Pardons for Offenses against the United States, except in cases of Impeachment.” Congress may grant amnesties under the terms of the “necessary and proper” clause found in Article I, Section 8 of the Constitution. The U.S. Congress does not have the power to limit or place conditions on any presidential pardons or amnesties.

The earliest grants of amnesty were presidential actions. In 1795, President George Washington granted amnesty to participants in the Whiskey Rebellion, which was essentially a revolt against excise taxes. The first time amnesty was extended toward a group that dealt with a question of their “citizenship” was in 1865: President Andrew Johnson offered most ex-Confederates amnesty if they agreed to take a loyalty oath to the Union. These examples reveal the intent behind most amnesties: to end divisive conflicts within American society in order to achieve reconciliation and domestic tranquility. However, in recent debates on the possible granting of amnesty to unlawful immigrants, the discussion, if anything, has increased the polarization of the electorate.

Amnesty for Unlawful Immigrants

While individuals or small groups receiving pardons or amnesty in regard to immigration “crimes” had previously been granted by presidents, the first large scale amnesty program was the 1986 Immigration and Reform Control Act (IRCA) proposed by President Reagan and passed by Congress. This legislation, which included amnesty for about 2.7 million illegal immigrants, became the standard upon which most later bills were based. Reagan, followed by Presidents Clinton, G.W. Bush, Obama, and Biden, understood that the scope of an amnesty program for unauthorized immigrants needed the broad support of Congress, as well as a path forward for the immigrants, which only Congress could authorize. A president’s orders that a certain group would not be deported, such as the “Dreamers” (i.e., participants in the Deferred Action for Childhood Arrivals, or DACA, program), was subject to reversal by the next president and left the groups in limbo, rather than outlining specific steps that these individuals could take to gain legal status in the United States. While an immigration reform bill was passed during the presidency of George H.W. Bush, only during Bill Clinton’s administration were major pieces of legislation passed by Congress that granted amnesty to specific groups of immigrants. Collectively, the six laws passed from 1994 to 2000 granted amnesty to about the same number of people as had IRCA. Two of these were for specific groups of Central American immigrants, while the others had more widespread provisions. The immigration bills put forward by George W. Bush and Barack Obama failed to gain Congressional support, while (as of April, 2021) Joe Biden’s bill for immigration reform, including amnesty provisions, awaits Congressional action.

Throughout the early twenty-first century, Republicans in Congress have tended to be opposed to amnesty for illegal immigrants, while Democrats have been supportive of certain amnesty provisions. Neither group supports immigration amnesty for individuals who have been involved in criminal enterprises after arriving in the United States. Those against amnesty argue that these individuals have broken the law and, therefore, should have to return to their home country and begin the immigration process in the same way others have. Those supporting various amnesty programs assert that the particular group of individuals have been contributing vital labor to the American economy, and more broadly strengthening the society, and that these contributions should be recognized. The Dreamers, primarily Latino individuals brought into the United States as children, have had the broadest support for legislative amnesty (as they did not choose to move to the United States), but even for them the proposed legislation has always gotten bogged down in partisan political struggles. An amnesty program creating a path to citizenship has been the goal of both Democratic and Republican presidents, but not of enough of the members of their respective Congressional delegations have supported these bills for any substantial results in immigration reform during the first two decades of this century.

Further Reading

1 

Center for Immigration Studies. “Historical Overview of Immigration Policy.” Center for Immigration Studies. Washington, DC: Center for Immigration Studies, 2021.

2 

Freeman, Mark. Necessary Evils: Amnesties and the Search for Justice. Cambridge: Cambridge University Press, 2009.

3 

Goodman, Paul. “Pros and Cons of Amnesty for Illegal Immigrants to the USA.” Soapboxie. New York: Maven Media, 2020.

4 

LeMay, Michael C. Illegal Immigration: A Reference Handbook. Second edition. Santa Barbara, CA: ABC-CLIO, 2015.

5 

Moore, Kathleen Dean. Pardons: Justice, Mercy and the Public Interest. New York: Oxford University Press, 1989.

Citation Types

Type
Format
MLA 9th
Clarkin, Thomas. "Amnesty." Encyclopedia of American Immigration, 2nd Edition, edited by Michael Shally-Jensen, Salem Press, 2021. Salem Online, online.salempress.com/articleDetails.do?articleName=AmImm2e_0026.
APA 7th
Clarkin, T. (2021). Amnesty. In M. Shally-Jensen (Ed.), Encyclopedia of American Immigration, 2nd Edition. Salem Press. online.salempress.com.
CMOS 17th
Clarkin, Thomas. "Amnesty." Edited by Michael Shally-Jensen. Encyclopedia of American Immigration, 2nd Edition. Hackensack: Salem Press, 2021. Accessed December 14, 2025. online.salempress.com.