offenses, since it is federal law which removes federal rights upon a state conviction."

110

VI. OFFENSES FOR WHICH AMNESTY CAN BE GRANTED

111

One way to approach this question is to say that it is "political" offenses for which amnesty can be granted and then inquire what "political" means. But this approach presents us with a dilemma because crimes are the unique province of the courts, yet the courts refuse to consider political issues."11 Hence using the term "political crimes" is like trying to mix oil and water. But the dilemma may be more apparent than real, for it may be the courts' refusal to consider the political nature of an offense that requires the offender to seek amnesty from the legislative or executive branch."

113

Or we may turn to general definitions of "political." Here, the wide range of uses of the word-political issue, office, matter, party, organization, and the like-makes the definitions of little help. One does gather that anything is "political" which pertains to the policy of government or to any group of persons holding similar beliefs who strive to gain control of government or general adoption of their own programs. At the same time there is an attempt to restrict the term to orderly processes and rule out revolution.113 A recent case holds that citizen protest marches are "political" under the Hatch Act and Civil Service regulations."1

114

113

110. See In re Bocchiaro, 49 F. Supp. 37 (W.D.N.Y. 1943); 10 OP. ATT'Y GEN. 452 (1863); 11 OP. ATT'Y GEN. 122 (1864).

111. The rule has not been substantially altered by the Wechsler-Bickel debate. Compare Wechsler, Toward Neutral Principles of Constitutional Law, 73 HARV. L. REV. 1 (1959), with Bickel, Foreword: The Passive Virtues, 75 HARV. L. REV. 40 (1961). Nor has it been dislodged by the liberalizing cases of Brown v. Board of Educ., 347 U.S. 483 (1954); Baker v. Carr, 369 U.S. 186 (1962); Reynolds v. Sims, 377 U.S. 533 (1964); Powell v. McCormack, 395 U.S. 486 (1969); and their progeny. Many law review articles so indicate. E.g., Scharpf, Judicial Review and the Political Question: A Functional Analysis, 75 YALE L.J. 517 (1966).

112. Also of interest is the refusal of the Supreme Court to adjudicate the legality of the war in Vietnam, involved in many of the offenses we are considering. Massachusetts v. Laird, 400 U.S. 886 (1970); Velvel v. Nixon, 396 U.S. 1042 (1970); McArthur v. Clifford, 393 U.S. 1002 (1968); Hart v. United States, 391 U.S. 956 (1968); Holmes v. United States, 391 U.S. 936 (1968); Mora v. McNamara, 389 U.S. 934 (1967); Miller v. United States, 389 U.S. 930 (1967). Compare Velvel, The War in Vietnam: Unconstitutional, Justiciable, and Jurisdictionally Attackable, 16 KAN. L. REV. 449 (1968), with Note, Congress, the President, and the Power to Commit Forces to Combat, 81 HARV. L. Rev. 1771 (1968). See also Autenrieth v. Cullen, 418 F.2d 586 (9th Cir. 1969), cert. denied, 397 U.S. 1036 (1970) (refusal to allow religious scruples as a defense to payment of war taxes); F. WORMUTH, The PRESIDENT VERSUS THE CONSTITUTION (1968).

113. General definitions: Moser v. United States, 341 U.S. 41 (1951); People v. Morgan, 90 Ill. 558 (1878); In re Stillwell Political Club, 17 N.Y.2d 574, 215 N.E.2d 512, 109 N.Y.S.2d 331 (Sup. Ct. 1951). Excluding revolution: Pockman v. Leonard, 39 Cal. 2d 676, 249 P.2d 267 (1952), appeal dismissed, 345 U.S. 962 (1953); Lockheed Aircraft Corp. v. Superior Court, 28 Cal. 2d 481, 171 P.2d 21 (1946). 114. Holden v. Finch, 446 F.2d 1311 (D.C. Cir. 1971).

115. 18 U.S.C. §§ 594–95, 598, 600-01, 604–05, 608–09, 611—12 (1970). 116. E.g., 5 C.F.R. § 315 (1971), 18 U.S.C. § 595 (1970).

But these definitions become wholly inadequate when we look at the deportation and extradition statutes and cases, the only place the federal law seems to define "political crimes" explicitly. The Refugee Relief Act of 1953" and the Displaced Persons Act of 19481 permit stay of deportation and acquisition of immigrant status if return to the country of former residence would cause political persecution or fear of persecution. This turns out to be persecution on account of race, religion, or political beliefs or activity." The extradition statutes, treaties, and cases are even more helpful. "Political offenses" are not cause for extradition, whether there has been a conviction or a mere charge, and this is so because the United States should not permit its legal process to be used by a foreign government for reprisals against its political opponents." To defeat extradition for murder or other violent crimes, it is necessary for the accused to prove that he was part of a revolutionary movement, or that the occurrence was part of a political uprising or opposition." Giving orders to kill during a war (and presumably refusing orders to kill or participate in war acts) is a political crime," as is treason. There is some indication that such acts as going to another country or claiming foreign citizenship to avoid required military service are political.1**

But it is the historical examples of the use of amnesty that seem determinative. Amnesty has been used to erase treason, insurrection, attempted political overthrow, tax refusal, civil and racial strife, draft avoidance, army desertion, disloyalty, espionage, and even bigamy, polygamy, and murder," particularly when these arise from political-racial-religious claims of necessity."

117. 67 Stat. 400 (1953).

118. 62 Stat. 1009 (1948), as amended, 64 Stat. 219 (1950). 119. See 50 U.S.C. App. 1971(d); 8 U.S.C. §§ 1101, 1253(h) (1970). Cheng Fu Sheng v. Barber, 269 F.2d 497 (9th Cir. 1959); Cheng Lee King v. Carnahan, 253 F.2d 893 (9th Cir. 1958); Application of Paktorovics, 156 F. Supp. 813 (S.D.N.Y. 1957), rev'd, 260 F.2d 610 (2d Cir. 1958); Ex parte Kurth, 28 F. Supp. 258 (S.D. Cal.), appeal dismissed, 106 F.2d 1003 (9th Cir. 1939). Court review of executive action is very narrow: Schieber v. United States Immig. & Nat. Serv., 427 F.2d 1019 (2d Cir. 1970); Hamad v. United States Immig. & Nat. Serv., 420 F.2d 645 (D.C. Cir. 1969); Sovich v. Esperdy, 319 F.2d 21 (2d Cir. 1963); Blazina v. Bouchard, 286 F.2d 507 (3d Cir.), cert. denied, 366 U.S. 950 (1961); MacKay v. McAlexander, 268 F.2d 35 (9th Cir. 1959), cert. denied, 362 U.S. 961 (1960).

120. 18 U.S.C. § 3184 (1970); e.g., In re Extradition of Gonzalez, 217 F. Supp. 717 (S.D.N.Y. 1963); Treaty with Venezuela on Extradition, Jan. 19, 21, 1922, 43 Stat. 1698, T.S. No. 675; Treaty with Dominican Republic on Extradition, June 19, 1909, 36 Stat. 2468, T.S. No. 550; Treaty with Switzerland on Extradition, May 14, 1900, 31 Stat. 1928, T.S. No. 354; Treaty with Mexico on Extradition, Feb. 22, 1899, 31 Stat. 1818, T.S. No. 242. There are nearly 100 other like treaties.

121. Jimenez v. Aristeguieta, 311 F.2d 547 (5th Cir. 1962), cert. denied, 373 U.S. 914 (1963); In re Extradition of Gonzalez, 217 F. Supp. 717 (S.D.N.Y. 1963); Ramos v. Diaz, 179 F. Supp. 459 (S.D. Fla. 1959).

122. Karadzole v. Artukovic, 247 F.2d 198 (9th Cir. 1957), vacated, 355 U.S. 393 (1958). 123. Chandler v. United States, 171 F.2d 921 (1st Cir. 1948), cert. denied, 336 U.S. 918, rehearing denied, 336 U.S. 947 (1949).

124. Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963); Moser v. United States, 341 U.S. 41 (1951).

125. See pages 518-24 supra.

126. See notes 117-124 supra.

Every class of offense listed at the beginning of this article" and claimed by the participants to be political seems to be within one of the above definitions and examples. And the participants-Angela Davis, Panthers Seale and Newton, the Berrigans, the San Francisco Stockade "mutineers,” the Catonsville Nine, Chicago Seven, Milwaukee Fourteen, New Jersey Eight, the AWOL's and deserters, the draft evaders and avoiders, those arrested for trespass, riot, and other acts in Washington, D.C., mobilizations and sit-ins, even the Attica prison revolters-all claim to have engaged in law violations (if any) to press the government to get out of an erroneous or illegal war, change foreign policy, give up racial suppression, or end practices leading to disenfranchisement.

It may be desirable to ask the question in another way: What criteria might be used to determine which “crimes” are “ordinary" (not to be amnestied) and which are "political" (to be amnestied)? It is submitted that the following are the more important considerations:

1) Has the position for which the prisoner stood now become generally accepted in the community?"

2) Has the government activity against which protest was made, been ended?129

3) Was the action taken originally as an expression of religion, conscience, or other first amendment right?130

4) Were the conditions (prison, race, police activity) such obvious failings of government that the citizenry ought to be encouraged to speak out?131

5) Does the policy of the government against which protest was made (e.g., the war) represent a relatively small political group

127. See page 515 supra.

128. For example, public support of official actions in Vietnam has markedly waned. In early March of 1966, a poll of the adult American population showed 61 percent favored bombing North Vietnamese industrial plants and factories. Overall, 50 percent approved President Johnson's handling of the Vietnam situation, and 33 percent were opposed, according to the Gallup Political Index, Feb. 1966, No. 9, at 5-6. But in a poll taken between November 14 and 16, 1969, it appeared that 64 percent of the adult American population approved the way President Nixon was handling the Vietnam situation (Vietnamization and withdrawal of troops). Gallup Opinion Index, Dec. 1969, No. 54, at 2. On the campuses, the polls said that in January 1970, 69 percent of the students polled were in favor of reducing our military effort in Vietnam, while 20 percent favored increased military action. Gallup Opinion Index, Jan. 1970, No. 55 at 19. See note 142 infra.

129. Typical are amnesties after a war for draft avoiders, AWOL's, and like persons. See pages 520-24 supra.

130. See Freeman, A Remonstrance for Conscience, 106 U. PA. L. Rev. 806 (1958). Prosecution tends to show a restrictive first amendment application under hysteria conditions.

131. This would cover demands for amnesty in prison uprisings, and racial issues of nearly every kind.

imposing its will upon the citizenry without a clear mandate, thus lacking democratic sanction and bound to elicit protest?13

132

6) Was the original action nonviolent and therefore nearest to protection as free speech?133

7) Was the crime one generally condemned by all society as against
the peace and good order of the people, with few or no political
overtones?13

8) Was the so-called political position taken that of anarchy ?135
9) Even if the original crime for which a person is in jail was non-
political, has the matter of confinement turned into a political
imprisonment or harassment?138

10) Can society expect no serious threat if it releases the prisoners?137

It seems quite possible to this writer to formulate proper criteria along these lines, and to set up a board if necessary to sort out borderline cases. The bugaboo argument of "would you release all criminals?" has little rele

vance.

VII. CONCLUSION

As was pointed out earlier, never in United States history has the problem seemed so large and important. We now have a huge number of unamnestied and unpardoned political offenders-many of whom may be our finest young people and potential leaders. The offenses are backed up all the way to World War I and II. Nowhere else in the world are political offenders treated as common criminals. Even in Greece and some of the most dictatorial countries, they are placed under house arrest or allowed to move to another country. In most noncommunist countries they are amnestied and allowed to try again for political power. We need immediately to erase

138

132. As a part of this it would be proper to consider what position Congress had itself expressed. 133. See the author's various articles on Civil Disobedience: Freeman, The Right of Protest and Civil Disobedience, 41 IND. L.J. 228 (1965); Freeman, Moral Preemption Part I: The Case for the Disobedient, 17 HAST. L.J. 425 (1966); Freeman, Civil Disobedience, Law and Democracy, 3 Law TRANS. 13 (1966); Freeman, Civil Disobedience and the Law, 21 RUT. L. REV. 17 (1966). See also Keeton, The Morality of Civil Disobedience, 43 TEXAS L. REV. 507 (1965).

134. Murder, robbery, felonious assault, and like crimes are of this nature-even if the prisoner claims his repressed and societally produced background is responsible. On the other hand, "normal" criminal statutes, such as trespass and disorderly conduct, can be used for criminal suppression.

135. It may be too much to ask the government to free a person constantly trying to overthrow all government.

136. There are those who feel that the Angela Davis, Soledad Brothers, Jackson, and Seale cases have become "politicized." TIME, Sept. 6, 1971, at 18.

137. This would certainly apply to most conscientious objector and Jehovah's Witness

cases.

138. Big Minh was amnestied in South Vietnam. In September, 1970, even Franco of Spain amnestied hundreds of political prisoners.

31-658 O - 74 - 31

this blot on American democracy. Even more we need to recruit these critics of society back into the political process of changing society, as most everyone recognizes society needs changing. At Attica, Commissioner of Corrections Oswald admitted that 28 of the 30 prisoner demands should be implemented." It may be small satisfaction to the Berrigans and other antiwar "criminals," but there is now general political agreement on the error of the Vietnam war. Rosa Park's feet and the busted head of many a demonstrator may hurt no less, but desegregation is becoming a reality. The nation has a profound interest in allowing reformists a radical means of shaking us from our lethargy. The more rapid the need for reform, the more radical must be the means of getting public attention and action.

140

Senator Edward Kennedy has introduced a bill as an alternative to further Selective Service extension which proposes an amnesty "study" for Congress." Senator Taft introduced an amnesty bill on December 14, 1971," and popular support for amnesty is strong." This is a start, but it is not enough. Congress and the President should appoint a Joint Committee to study the whole problem of pardon and amnesty, and recommend immediate action to wipe out all "political offenses" and return all these citizens to where they are needed, in "One Nation . . . Indivisible, with Liberty and Justice for all."

143

139. Commissioner Oswald is reported to have acceded to all but two of the demands in the early stages of the insurgency. TIME, Sept. 27, 1971, at 22. 140. S. 483, 92d Cong., 1st Sess. (1971).

141. S. 3011, 92d Cong., 1st Sess. (1971).

142. See, e.g., NEWSWEEK, Jan. 17, 1972, at 19. A recent Gallup poll indicated in part that, when asked about amnesty conditioned on alternative service such as that presently required for conscientious objectors, 71 percent of those polled favored amnesty generally, while 22 percent were against it, and 7 percent had no opinion. Of the 71 percent in favor of amnesty, 63 percent favored the condition, while 7 percent were for amnesty without qualification; 1 percent said they were proamnesty, but uncertain about required service. The poll also found that 49 percent favored amnesty for Army Lieutenant William Calley, convicted in the My Lai affair, while 24 percent were opposed. Id. at 20.

143. Pledge of Allegiance, 36 U.S.C. § 172 (1970).