In another thread about Edward Snowden and the NSA, I briefly caused a digression by asking about the reality of amnesty. Not wanting to skunk up the thread any further, I thought I’d take it elsewhere, and ‘elsewhere’ happens to be right here.
In the United States, is there really such a thing as ‘criminal amnesty?’ Do prosecutors ever sincerely offer such a thing, and if they do, do they honor them? Is there any history of somebody receiving amnesty in return for assisting another prosecution, and then being blatant about their guilt after the fact?
To me, this sounds like the sort of trick that a prosecutor would play on somebody who watched too much TV. “Yeah, sure,” they’d say, “I’ll give you amnesty in exchange for helping us take down the big guy.” But once they had their man? I reckon it wouldn’t be worth the paper it was written on. “Can’t form a contract to something illegal,” they’d say, and off to the hot-boxes you’d go.
But then again, I’m cynical about government. What’s the straight dope?
And does it stick? Are there any examples of somebody being granted immunity and then pulling one over on the prosecution?
Truth be told, I first thought of this because of an episode of some cop show - I think it was Sherlock? - where the cops offered immunity to a guy who’d been kidnapped as a child, in exchange for helping him find the master kidnapper. When it turned out that the guy was himself the master kidnapper, he was supposed to be off scott-free, but then the detective found a loophole and sent him to prison.
I have an image in my mind of the Merchant of Venice. “I see no provision in the bond!”
In a recent episode of The Good Wife there was a story about a gotcha that a prosecutor used against a witness to whom he promised amnesty. Since it’s a recent episode, I’ll put it in a spoiler box:
An illegal alien was a witness to a crime. The prosecutor promised a “snitch visa” to the witness which would allow him to remain in the country in exchange for his testimony against the bad guy. The witness agreed. But the bad guy fled the country as the trial was starting and hence the witness did not testify. Since the witness did not testify, he did not fulfill the terms of the agreement and hence was put on a bus to be deported.
Probably. I assume that they stole that from the news, just like most of their plots.
The point of the plot was that the prosecutor technically violated nothing. Real life immunity is worked out between lawyers as a contract. That’s why the OP is wrong. But if the contract isn’t completely fulfilled by one side then the other side does not have to live up to it. Technicalities count. The tv show examined a situation in which a technicality became important. But note that in the show a judge had to agree that the contract wasn’t fulfilled: the prosecution didn’t just say “psych”. It went through the legal process.
Immunity is usually a deal - if you testify against X, we’ll drop the charges. If you tell us where the bodies are buried, we’ll take the death penalty off the table. If the perp does not live up to their end of the bargain, then the deal is cancelled and all previous charges can be laid again, etc.
Not sure in the spoiler case. After all, if a contract is frustrated through no fault on the one side, they’ve lived up to their end of the bargain. They haven’t reneged or lied, then the other side also must live up.
The danger is that the prosecutor cannot, for example, tell the immigration department what to do. So any such deal is reliant on cooperation within the government.
There was a very old Law and Order where the prosecutor promised immunity “for any crimes committed in his jurisdiction”. Turns out he was the prosecutor for Manhattan, so the Brooklyn crimes were still on the table. Better have a really good lawyer read over the terms and conditions. This is also why the police saying “it will go easier on you if you cooperate” is about as far as they can go. They don’t get to decide what cases are prosecuted or not, so they can’t promise immunity.
As for Snowden, the deal suggested was “return the documents in return for amnesty”. He must have some real doozies still buried up his sleeve, assuming they are not already in the hands of the journalists. (How could it be any worse? Did the NSA poison Mother Teresa?) Presumably the fine print would say something like “if any of these details are revealed after the deal is signed, the deal is off.” It took Bradley/whatever Manning 3 years locked in a cell with no clothes and the light on 24 hours a day before his case went to court - and they had hium dead to right on the charges. I wouldn’t trust the US government when they can pull that sort of stunt, even if at the end you get the case tossed because there was a deal.
Snowden must have documents about who actually shot Kennedy, the truth about UFOs, how the moon landing hoax was pulled off, and how the Illuminati run the country.
The concepts of amnesty, pardon, and commutation are all closely related.
Amnesty is pre-forgiveness, usually applied to a class of people, for crimes. What I mean by “pre-forgiveness”, is that government is basically saying “you’ve not been convicted of this crime, but if anyone who might have committed it we are forgiving you in advance.” This means you cannot be charged, arrested and there will be no criminal record against you.
Recent examples, Reagan offered amnesty to some 3 million illegal immigrants. What that meant was, anyone who illegally entered the country prior to his granting of amnesty was considered to have “not committed a crime”, they could not be charged, could not be prosecuted, could not be convicted.
A pardon on the other hand comes most typically after someone has been convicted of a crime, but sometimes after they have been charged but prior to conviction. A pardon is essentially saying, “you’re guilty of this crime and have been duly convicted, but we’re forgiving you.” Pardon means whatever punishment is associated with the crime, you cannot be subject to it. So if you’re pardoned for a crime and you were serving a life sentence, the jailer has to release you.
A commutation is a reduction in sentence, without pardoning you for the offense itself.
All three of those things are almost exclusively powers of the executive. By executive I mean the President in the Federal legal system and the Governors of the respective States in the State legal systems. (Some States have boards or etc and the power isn’t the sole prerogative of the governor.)
At the Federal level the President’s constitutional pardon power has essentially been found to be without limit excepting the narrow limitations in the text of the constitution. (Essentially it prohibits pardoning someone being impeached.) This means the President can and has issued sweeping amnesties of draft dodgers, illegal immigrants, confederate soldiers etc. The President can pardon any convicted person under Federal law and commute any Federal sentence. The President can’t pardon you if you’re convicted of a crime in state court.
It is no prosecutorial trick, if the President issued an amnesty for Snowden, then under Federal law no judge would allow him to be tried, or allow him to be detained on charges for which he had been granted amnesty.
What you are talking about here is immunity, which is different from amnesty, pardon, and commutation. Immunity is a prosecutorial tool where a prosecutor makes a deal with someone to give testimony that incriminates that person in a crime. Since constitutionally, you cannot be forced to incriminate yourself immunity is a workaround, it allows the government to secure your testimony and since you are granted immunity from prosecution you have much less of a concern on 5th Amendment grounds.
A prosecutor essentially has these options:
Queen for a Day / Proffer Letter Immunity - The prosecutor gives you temporary immunity for something you tell them. This comes up where a prosecutor believes, as part of an investigation, that you know something they want to know. Before the prosecutor is willing to talk long term deal with you, they want to know what you know. But obviously what you know might give them ammunition to convict you, and without a deal in place you could easily be screwed. So what proffer letter immunity gives you is the ability to talk to the prosecutor about what you know, and they cannot use that statement against you.
It is a relatively weak from of immunity. If you ever contradict yourself in testimony later, then it can essentially be revoked. Further, they cannot use the statement itself against you but they can use information derived from your statements against you if they develop new evidence against you based on what you’ve told them.
Letter Immunity - Prosecutor gives you protection similar to proffer letter, except they agree to not derive any evidence against you from your statements. If they want to charge you later they have to actually go and prove in a hearing that any evidence they are using in the prosecution was not derived from your statement.
Statutory immunity - This actually comes from a judge and not a prosecutor. Essentially imagine a hearing, you are asked to testify. You decline to answer questions a cite your fifth amendment protections. The judge can say, “I’m ordering you to testify, and grant you immunity for anything you say.”
The first two types of immunity can theoretically be revoked at the discretion of the prosecutor in certain scenarios, the same way that deals in terms of sentencing can sometimes be revoked after the fact. But it’s rare, and there are a good bit of protections in place, so the sort of duplicity OP is worried about isn’t really realistic or all that common or possible in our legal system.
Seriously. He must have proof that Obama really was born in Kenya, or something like that, if they were considering offering him amnesty now.
If I was Snowden, I’d be worried that the offer of immunity was just a trick to get me to show myself, and that I would be assassinated if I actually showed up.
There was an early episode of Law & Order in which the assistant district attorney promised to someone, “If you testify, the New York County DA will not prosecute you.” Immediately after the testimony, the witness was arrested. As he’s protesting, the ADA pointed out, “Well, I didn’t promise that the Kings County DA would not prosecute.”
Plus there’s the fact that if as a prosecutor you repeatedly weasel your way out of immunity deals on technicalities or simply don’t honor them, no defense lawyer is ever going to let a client agree to one with you again.
And if that is the case the purpose of offering immunity, which is to grease the skids, is nullified.
Snowden is living and working in Russia and isn’t in a fortress. If we really wanted to assassinate him, we could do so. No need for an amnesty offer to “flush him out”, he has asylum in Russia and is allowed to travel freely. He isn’t in hiding. I doubt he has his address posted on a facebook profile, but I also don’t think knocking him off would be as hard as say, assassinating a Russian political leader which also could probably happen if the United States really wanted it to. No one has tried to kill Snowden because the consequences would be far worse in terms of public image than anything he could leak will be. Plus it’s known at least a couple of journalists have full copies of everything he has. Killing him serves no purpose.