The politics of immigration are often fought out through debates over amnesty. Restrictionists seek to delegitimize various forms of protection of irregular migrants by branding them as ‘amnesty’. In contrast, immigrants’ rights advocates talk about amnesty aspirationally to signify the rightful incorporation of previously marginalized noncitizens. Some worry that the concept has been too successfully commandeered by the right and have therefore substituted other terms, including ‘regularization’ and ‘legalization’. Nevertheless, for many progressives, the idea of amnesty continues to represent just and necessary policy.
Arguments over amnesty are about the forms that immigration policy should take regarding responsibility, fault, victimization and accountability. Amnesty shares an etymological cognate with amnesia and is often characterized as a kind of (official) forgetting of a transgression or offence. Inevitably, then, the debate begins with a threshold question: should the act at issue be regarded as transgressive at all? Assuming a transgression, amnesty’s ‘forgetting’ has a variety of valences. Broadly, amnesty arguments tend to come in three versions: forgive-and-forget, administrative reset, and vindication.
The forgive-and-forget version presumes that the recipient has perpetrated an offence, with amnesty then pardoning the perpetrator and erasing the penalty. Notice, however, that granting amnesty performs a kind of expressive indictment, meaning the symbolic cost to the beneficiary may be steep. In some settings, amnesty has been opposed by potential beneficiaries for just this reason. Critics of forgive-and-forget amnesty, in turn, claim that it produces impunity by tolerating rather than punishing offenders’ conduct, is unjust to those who played by the rules and, at the least, must be coupled with conditions or penalties (fines, public apology, probation) to underline that fault still attaches. Others in the transitional justice context object to what they view as amnesty’s ‘enforced forgetting’ altogether.
In amnesty’s administrative reset version, the state likewise views itself as responding to an offence, but instead of focusing on fault, the premise is that the law is unenforceable. Amnesty is treated as a response to administrative failure, and is undertaken in the interests of forward-looking, systemic functionality. This conception is applied in a variety of contexts, both politically charged and mundane, including those of firearms, narcotics, tax collection and parking fines. Associated discourse sometimes suggests that the transgression was not so bad, or its badness was counterweighed by the cost to society of widespread noncompliance, or that de facto amnesty is the unacknowledged policy in any case, and that it’s better to govern transparently rather than inadvertently. Critics complain that the consequentialist approach rewards the activity in question (for example, tax amnesties are said to ‘enrage compliant tax payers’).
A third version treats amnesty as vindication. Here, amnesty is portrayed as protecting victims, rather than indicting wrongdoers (the name of the organization ‘Amnesty International’ conveys this understanding). This approach entails a moral reframing: the claim is that the violated rule was unjust, or that the beneficiaries’ prosecution was not justifiable, and that at the least, the very policies defining the transgression now need interrogation. For example, in debates in the US during the Vietnam era, some supporters of amnesty for draft avoiders maintained that the true transgressors were the war-makers, not the resistors. In this view, prosecuted draft avoiders deserved protection from indefensible penalties imposed in an unjustified war. This was the understanding of amnesty advanced by Jean-Paul Sartre in a 1973 essay: In calling for ‘amnesty’, he wrote, war resistors and deserters
… did not mean ‘pardon,’ nor even forgetfulness. Certain of the justice of their cause, they simply wanted their rights recognized. And this could not be done unless the government was to reverse itself publicly, and, so to speak, say, ‘If these men have the right not to wage this war, then we on our side had no right to declare it’.
The point thus far is that political actors argue about matters of accountability through amnesty-talk, and yet the amnesty concept offers no consistent understanding of what accountability entails, and stands for no consistent approach for achieving it.
In the immigration context, the idea of amnesty cuts in various directions. Current debates tend to feature forgive-and-forget and/or administrative reset versions of amnesty. The role of vindication arguments is more equivocal. Most immigrants’ rights defenders, including academics, seem ambivalent about them. On the one hand, amnesty advocates often portray potential recipients as victims of exploitative employers and callous governmental actors, and amnesty as a means of releasing beneficiaries from the vulnerability of unauthorized status. On the other hand, amnesty advocates rarely claim that amnesty emancipates immigrants from unjust border laws – those same laws which defined them as ‘undocumented’ in the first place – nor that immigrants were justified in violating the existing law. It is more common to hear that the immigrants’ earlier ‘wrongdoing’ has been superseded by circumstances – usually, by accrual of time and ties in the receiving state. Such arguments continue to assume that the immigration law was just, and that the initial legal violation was wrong, but that something subsequent has changed the moral calculus. Indeed, advocates often link their call for amnesty with a commitment to heightening the enforcement of borders going forward. This kind of argument, protective in intent as it is, has led more radical immigrants’ rights advocates to repudiate amnesty as a political goal, viewing it as effectively tarring immigrants and legitimizing the border laws that produce their unauthorized status.
However, such legitimation is not inherent in the idea of amnesty. More thoroughgoing, vindicatory amnesty arguments are at least conceivable. The most radical position would be that the state’s border laws are unjust ab initio, so entry without inspection or overstaying cannot properly be deemed a wrong. This argument could be made via a liberal-cosmopolitan Rawlsian critique, a humanitarian ethos-of-hospitality critique, or a left-anarcho-libertarian critique of the kind advanced by organizations like NoBorders. Alternatively, one could make a historically-based argument that, where the receiving state has a coercive or exploitative history with the sending state, exclusionary laws in relation to nationals of those states are unjustified. With all the arguments, the upshot is the same: if the laws are unjust, then the immigrant is not culpable for violating them; instead, the state was wrong to enforce them. An alternative vindicatory amnesty position might maintain that, even if border laws are not themselves immoral, unauthorized immigrants should not be regarded as culpable because their actions are excusable. The excuse position could be expressed in duress terms – by invoking the immigrant’s need to feed self and family, or escape suffering; or in inducement terms – the state was inviting or tolerating immigrant presence (or with regards to demand for labour, failing to enforce the employer sanctions laws); or, in the case of undocumented youth, by invoking incapacity – lack of choice and control – at the time of the illegal act (though note that this last tack ends up indicting the ‘culpable’ parents by contrast).
In sum, ‘amnesty’-talk need not serve as a diversion from ultimate justice questions. It contains vindicatory and emancipatory elements as well as legitimizing ones. There is no true and single meaning of ‘amnesty’; what matters is the uses to which the idea is put.
Sartre, J-P. (1973) ‘Sartre on Amnesty’, The New York Review of Books, 20(6).