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Amnesty laws are laws that reduce the penalty of or allow the release of prisoners convicted of various offences i.e someone is convicted of an offence with a mandatory minimum imprisonment without parole possibilities, so can the US Congress in this case make a law that reduces the penalty of or pardons the person convicted of such an offence?

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    law.stackexchange.com/a/27770/4402
    – Obie 2.0
    May 2, 2023 at 3:32
  • Usually it is the other way round: the Amnesties apply to minor offenses, while the hard ones (aka a mandatory minimum imprisonment without parole possibilities) are either not covered by an amnesty or the amnesty simply implies softening of the sentence, but not cancelling it.
    – Roger V.
    May 2, 2023 at 7:20
  • FYI: "amnesty" in the US is also used for other related notions. A quick search finds several amnesties for immigration issues passed by Congress. Also an amnesty for criminal matters can be given even before conviction, as more notably after the civil war en.wikipedia.org/wiki/Amnesty_Act May 2, 2023 at 7:33
  • has the latter ever been done ? making non parolable sentances parolable
    – user45449
    May 2, 2023 at 13:43
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    FWIW, while beyond the scope of the question, Congress has also granted immigration amnesty making people no longer deportable.
    – ohwilleke
    May 2, 2023 at 18:42

2 Answers 2

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can the US Congress in this case make a law that reduces the penalty [retroactively]

The answer is yes. Even with respect to [minimum] prison terms, which it seems is what motivated your question, although "amnesty" has a broader meaning in the US being used even for immigration, or some rights [to be elected, etc.] as in the post-civil war "Amnesty Act".)

While there was a fairly high level of confusion on the 2010 Fair Sentencing Act, this was mainly due to the way that law was phrased, i.e. it was unclear how retrospective it was meant to be. The 2018 First Step Act was rather more clear, but albeit not on all sentences in its scope. However, in neither of these cases was the law challenged as unconstitutional, rather the debates and lawsuits were about what was covered by the wording. The discussion on these laws is somewhat complicated by the fact that Congress delegated specific sentence reductions to a commission. Said commission even published some stats in Aug 2020:

Retroactively Applying the Fair Sentencing Act of 2010

Since authorized by the First Step Act, 2,387 offenders received a reduction in sentence as a result of retroactive application of the Fair Sentencing Act of 2010. Offenders’ sentences were reduced, on average, by 71 months, from 258 months to 187 months.

There is a bit more discussion on Law.Se why such laws are constitutional in the US. It's essentially because they are not explicitly prohibited, despite the fact that Congress is constitutionally prohibited from legislating some ex-post-facto laws on some other matters (like making something illegal after the fact, or increasing the punishment for someone already convicted/sentenced).

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The Amnesty Act of 1872 specifically removes the disabilities imposed upon most former Confederates by the 14th amendment.

Granted, this was a built-in feature of said amendment, not a more general power of Congress. Section 3 of the Fourteenth Amendment prohibits the election or appointment to any federal or state office of any person who had held any of certain offices and then engaged in insurrection, rebellion, or treason. The section also stipulates that a two-thirds vote by each House of the Congress could override this limitation. And that's how we got the Amnesty Act.

Interestingly, the Act is a bit ambiguous and can be read to assert that these disabilities are removed permanently for everyone past and present, regardless of connection to the Civil War, except for those exceptions mentioned in the Act itself. The first time anyone tried to assert this in a court seems to have been quite recently, having been brought up in an attempt to disqualify Madison Cawthorn from (re)running for Congress. While the court first ruled that the Act had removed all such disabilities for all past, present, and future congressmen (unless some other law changes the situation for the future), an appeals court unanimously reversed that decision. Another appeals court also ruled it did not have any affect on post-enactment incidents and people, and an appeal of that holding was dismissed as the court found the appellant didn't have standing, as they had not violated Section 3 of the 14th amendment in the first place.

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  • Your link to msn.com doesn't work for me. Maybe that is because I am not in the US but in the EU. Do you have another link for the same story?
    – wonderbear
    May 2, 2023 at 11:19
  • @wonderbear No, you're right, it's broken, hadn't checked. I'll find another. May 2, 2023 at 13:46
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    @wonderbear New link added. And man, MSN is wildly dysfunctional with its links; even Microsoft's own search engine, Bing, returns invalid links. May 2, 2023 at 13:56
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    FWIW, the history books are divided on the question of whether the Amnesty Act of 1872 was a good idea. Arguably, it was pivotal in ushering in the Jim Crow era of American history.
    – ohwilleke
    May 2, 2023 at 18:53
  • @ohwilleke Oh, indeed, the Reconstruction era offered a lot of promises to punish (confederates), prevent (confederate sympathies and other insurrections), and protect (blacks and former slaves), but it didn't take long for all those to be undercut and uprooted almost entirely. Sometimes learning about American history is really damn depressing, because it's all just...awful. May 3, 2023 at 12:16

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