Treason laws in the United States

In the United States, there are both federal and state laws prohibiting treason.^[1] Treason is defined on the federal level in Article III, Section 3 of the United States Constitution as "only in levying War against [the United States], or in adhering to their Enemies, giving them Aid and Comfort." Most state constitutions include similar definitions of treason, specifically limited to levying war against the state, "adhering to the enemies" of the state, or aiding the enemies of the state, and requiring two witnesses or a confession in open court.^[2] Fewer than 30 people have ever been charged with treason under these laws.^[3]

Definition: In Article III, Section 3 of the United States Constitution, treason is specifically limited to levying war against the U.S., or adhering to their enemies, giving them aid and comfort.^[2]

Penalty: Under U.S. Code Title 18, the penalty is death,^[4] or not less than five years' imprisonment (with a minimum fine of $10,000, if not sentenced to death). Any person convicted of treason against the United States also forfeits the right to hold public office in the United States.^[5]

The terms used in the definition derive from English legal tradition, specifically the Treason Act 1351. Levying war means the assembly of armed people to overthrow the government or to resist its laws. Enemies are subjects of a foreign government that is in open hostility with the United States.^[6] Treason does not distinguish between participants and accessories; all persons who rebel or intentionally give aid to hostilities are subject to the same charge.^[7]

Death sentences for treason under the Constitution have been carried out in only two instances: the executions of Taos Revolt insurgents in 1847, and that of William Bruce Mumford during the Civil War. A handful of other people convicted of the offense at the federal level – such as two militants from the Whiskey Rebellion (John Mitchell and Philip Weigel, who were both pardoned by President George Washington^[8]) and several people after World War II – have mostly been pardoned or released.^[9] The last federal treason conviction to be fully upheld was that of Nazi sympathizer Herbert John Burgman in 1949.

Constitutionally, U.S. citizens who live in a state owe allegiance to at least two government entities: the United States of America and their state of legal residence. They can therefore potentially commit treason against either, or against both.^[10] At least 14 people have been charged with treason against various states; at least six were convicted, five of whom were executed. Only two prosecutions for treason against a state were ever carried out in the U.S.: one against Thomas Dorr and the other after John Brown's conspiracy. It has often been discussed, both legally and in matter of policy, if states should punish treason.^[11]

Four of the 13 colonies had enacted treason statutes by 1800, and four more had done so by 1820. The remaining four colonies had treason laws by 1862. In 2013, 43 states had treason laws, although 21 of them define this crime solely in their constitutions.^[11]

Definition: The constitution of Alabama defines treason in similar terms to the United States Constitution.^[12]

Penalty: Not less than 10 years and not more than 99 years' imprisonment (eligible for parole after lesser of one-half of sentence or 15 years) or life imprisonment (eligible for parole after 10 years).

A treason conviction also results in loss of voting rights for life without the possibility of voting restoration.^[13]

Definition: Arkansas legislation defines treason similarly to the United States Constitution, limiting it to "levying war against the state" or giving "aid and comfort" to the enemies of the state. Also similarly, conviction requires the testimony of two witnesses to the same overt act, or confession in open court.^[14]

Penalty: Death,^[15] or life imprisonment without the possibility of parole (eligible for parole after 30 years if the defendant was under 18).^[14]

Definition: Treason against the state of California is defined similarly to the United States Constitution. The California Constitution states that "treason against the State consists only in levying war against it, adhering to its enemies, or giving them aid and comfort. A person may not be convicted of treason except on the evidence of two witnesses to the same overt act or by confession in open court."^[16] This is reiterated in Section 37 of the California Penal Code.^[17]

Penalty: Death,^[18] or life imprisonment without the possibility of parole.^[19]

Penalty: Life imprisonment without the possibility of parole.^[20]

Definition: The constitution of Delaware defines treason in similar terms to the United States Constitution.^[21]

Penalty: Not less than 5.5 years and not more than 30 years' imprisonment (minimum sentencing guidelines). “In cases of treason the governor may grant reprieves until adjournment of the regular session of the legislature convening next after the conviction, at which session the legislature may grant a pardon or further reprieve; otherwise the sentence shall be executed.” ^[22]

Penalty: Death, or by imprisonment for life or for not less than 15 years.^[23][24]

The state constitution of Idaho specifically disallows gubernatorial respite or reprieve for a conviction for treason.^[25]

Penalty: Not less than 6 years and not more than 30 years' imprisonment.

After escaping custody on charges of treason against Missouri and fleeing to Illinois, Joseph Smith and Hyrum Smith were charged with treason in Illinois, which at that time was a capital offense. Augustine Spencer swore out a warrant alleging that the Smith brothers had committed treason by "calling out the Legion to resist the force under the command of the Governor". On June 24, 1844, a warrant was issued charging that "Joseph Smith, late of the county aforesaid, did, on or about the nineteenth day of June. A.D. 1844, at the county and state aforesaid, commit the crime of treason against the government and people of the State of Illinois." (Ludlow, pp. 1346–1348)^[26]

Bail could not be granted for a charge of treason, so Smith was placed in jail where he was accompanied by his brother, Hyrum Smith, and other associates. On June 27, Smith and Hyrum were killed by a mob in jail while they were awaiting trial. (Ludlow, p. 860)^[26]

Penalty: Death,^[27] or life imprisonment. In Louisiana, all life imprisonment sentences exclude the possibility of parole.^[28]

Definition: The state constitution of Maine defines treason in similar terms to the United States Constitution.^[29]

Penalty: Life imprisonment with the possibility of parole after serving not less than 15 years and not more than 25 years.

Penalty: Life imprisonment with the possibility of parole after serving 17 years.

Penalty: Death or life imprisonment.^[30]

Definition: Treason is defined in the constitution of the State of Missouri.^[31]

Penalty: Not less than 10 years and not more than 30 years' imprisonment (eligible for parole after serving one-half of sentence) or life imprisonment (eligible for parole after serving 30 years).

Joseph Smith and five others were charged with treason under Missouri law in 1838, spending over five months in prison, but escaped while awaiting trial.^[32] Joseph Smith and Hyrum Smith were later charged with treason against Illinois (above).^[33]

Penalty: Not less than 2 years and not more than 10 years' imprisonment (if imprisonment is imposed).

Penalty: 15–40 years in prison or Life imprisonment and a $100,000 fine. Though treason doesn't have a New York Penal Law Statute, it is punished as a class A-1 felony.^[34]

During the War of 1812, Mark Lynch, Aspinwall Cornell, and John Hagerman sold supplies to British ships. However, the court dismissed the indictments because it was deemed the war was against the United States and not the state of New York.^[11]

Article I, Section 29, of the State Constitution is similar to Article III, Section 3 of the United States Constitution, limiting the legal definition of "treason" to levying war against the State or giving "aid and comfort" to the enemies of the State. Conviction requires two witnesses to the act itself, or a confession in open court.^[10]

John Sevier, then governor of the State of Franklin and later the first governor of the State of Tennessee, was charged with treason against the State of North Carolina in October 1788. After being transported to North Carolina, he was freed. The charge was never brought to trial.^[35]

Penalty: Not more than 20 years' imprisonment.

Penalty: Life imprisonment with the possibility of parole after serving 25 years.

On 1892, after the Homestead strikes, Hugh O'Donnell and others were indicted for treason, .^[11]

Penalty: Life imprisonment with the possibility of parole after serving 20 years.

Thomas Wilson Dorr was convicted of treason against Rhode Island in 1844 for leading a rebellion against the state government, and sentenced to life imprisonment.^[36] Dorr served twelve months of his sentence. He was released in 1845 after the Rhode Island state legislature passed an Act of General Amnesty. In January 1854 the legislature passed an act annulling the verdict of the Rhode Island Supreme Court.^[37]

Penalty: Death or not more than 30 years' imprisonment (if committed during time of war) or not more than 20 years' imprisonment (if not committed during time of war).^[38]

Definition: The state constitution of South Dakota defines treason in similar terms to the United States Constitution.^[39]

Tennessee has repealed its treason law.^[40] However, a person convicted of treason can never be eligible to vote in Tennessee.^[41][42]

Penalty: Not less than 1 year and not more than 20 years' imprisonment.

Definition: levying war or conspiring to levy war against the state, or adhering to the enemy. This definition, in Title 13, Chapter 75, § 3401 of Vermont Statutes, echoes the definition found in the United States Constitution.

Penalty: Death by electrocution. Vermont criminal law maintains capital punishment specifically for treason. No other crime is punishable by death. The method of execution is specified as electrocution.^[43] Vermont's electric chair, last used in 1954, is stored in the Vermont History Center in Barre, Vermont.^[44]

Penalty: Not less than 20 years' imprisonment or life imprisonment with the possibility of parole after serving 15 years (if imprisonment is imposed).

John Brown was charged with treason against the Commonwealth of Virginia, along with conspiracy and first-degree murders after he led his raid on Harper's Ferry in 1859. In Virginia v. John Brown, he was found guilty on all three charges and hanged.^[45] Edwin Coppie (also known as Edwin Coppock) and Aaron Dwight Stevens were also charged, convicted, and hanged for treason against the Commonwealth of Virginia and other crimes. The charges of treason against John Anthony Copeland Jr. and Shields Green were dropped, since their lawyer argued successfully that since they were not citizens of the United States, according to the Dred Scott decision, they could not commit treason; they were convicted and hanged for other crimes.^{[46][47][48][49]} Albert Hazlett and John E. Cooke were charged with treason against the Commonwealth of Virginia and found not guilty of treason, but were convicted of other crimes.^[50]

Definition: The state constitution and statutory law of Washington define treason in similar terms to the United States Constitution, except that adhering to enemies and giving them aid are distinct forms of treason, not elements of a single form.^[51][52]

Penalty: Life imprisonment with the possibility of parole after serving 20 years, or any term of years. Treason is a "Class A" felony under sentencing guidelines, and current guidelines provide for a maximum sentence of life in prison and/or a $50,000 fine.^[53]

Penalty: Life imprisonment with the possibility of parole after serving 10 years or not less than 3 years and not more than 10 years' imprisonment (latter sentence able to be imposed at discretion of jury or court if defendant pleads guilty).

Penalty: Life imprisonment with or without the possibility of parole (eligible in 20 years, if sentenced to life with parole).

While treason is a criminal matter under federal and state laws, it may be considered a civil matter under tribal law.^[54] The U.S. federal government recognizes tribal nations as "domestic dependent nations". Tribal sovereignty is a form of parallel sovereignty within the U.S. constitutional framework, constrained by but not subordinate to other sovereign entities.^[55] The Indian Civil Rights Act limits sentences for crimes by tribal courts to no more than one year in jail and a $5,000 fine.^[56]

There is at least one case of punishment for treason under tribal law. In 1992, the Tonawanda Band of Seneca convicted several members of treason, stripped their tribal membership, and sentenced them to permanent banishment from the Tonawanda Reservation for attempting to overthrow the traditional government.^[57][58]

In the United States, Benedict Arnold's name is considered synonymous with treason due to his collaboration with the British during the American Revolutionary War. This, however, occurred before the Constitution was written. Arnold became a general in the British Army, which protected him.

Since the Constitution came into effect, there have been fewer than 40 federal prosecutions for treason and even fewer convictions. Several men were convicted of treason in connection with the 1794 Whiskey Rebellion but were pardoned by President George Washington.

The most famous treason trial, that of Aaron Burr in 1807, resulted in acquittal. In 1807, on a charge of treason, Burr was brought to trial before the United States Circuit Court at Richmond, Virginia. The only physical evidence presented to the grand jury was General James Wilkinson's so-called letter from Burr, which proposed the idea of stealing land in the Louisiana Purchase. The trial was presided over by Chief Justice of the United States John Marshall, acting as a circuit judge. Since no witnesses testified, Burr was acquitted in spite of the full force of Jefferson's political influence thrown against him. Immediately afterward, Burr was tried on a misdemeanor charge and was again acquitted.^[59]

During the American Civil War, treason trials were held in Indianapolis against Copperheads for conspiring with the Confederacy against the United States.^[60][61] In addition to treason trials, the federal government passed new laws that allowed prosecutors to try people for the charge of disloyalty.^[62]

Various legislation was passed, including the Conspiracies Act of July 31, 1861. Because the law defining treason in the constitution was so strict, new legislation was necessary to prosecute defiance of the government.^[63] Many of the people indicted on charges of conspiracy were not taken to trial, but instead were arrested and detained.^[63]

In addition to the Conspiracies Act of July 31, 1861, in 1862, the federal government went further to redefine treason in the context of the civil war. The act that was passed is entitled "An Act to Suppress Insurrection; to punish Treason and Rebellion, to seize and confiscate the Property of Rebels, and for other purposes". It is colloquially referred to as the "second Confiscation Act". The act essentially lessened the punishment for treason.  Rather than have death as the only possible punishment for treason, the act made it possible to give individuals lesser sentences.^[63]

After the Civil War the question was whether the United States government would make indictments for treason against leaders of the Confederate States of America, as many people demanded. Jefferson Davis, the President of the Confederate States, was indicted and held in prison for two years. The indictments were dropped on February 11, 1869, following the blanket amnesty noted below.^[64] When accepting Lee's surrender of the Army of Northern Virginia, at Appomattox Courthouse, in April 1865, Gen. Ulysses S. Grant assured all Confederate soldiers and officers a blanket amnesty, provided they returned to their homes and refrained from any further acts of hostility, and subsequently other Union generals issued similar terms of amnesty when accepting Confederate surrenders.^[65] All Confederate officials received a blanket amnesty issued by President Andrew Johnson on Christmas Day, 1868.

During the war several US citizens living in Europe were accused of treason for broadcasting Nazi propaganda. On July 26, 1943, Robert Henry Best, Douglas Chandler, Fred W. Kaltenbach, Edward Leo Delaney, Constance Drexel, Jane Anderson, Max Otto Koischwitz, and Ezra Pound had been indicted in absentia by a grand jury in Washington, D.C. on charges of treason.^[66][67] Only Best and Chandler would later be tried and convicted of treason after the war. The rest either had the charges dropped due to a lack of evidence or dismissed due to other circumstances (Koischwitz died in a Berlin hospital in 1944, Kaltenbach reported died while in Soviet custody, and Pound (accused of being involved in Nazi and Italian Fascist propaganda) was found unfit to stand trial.

Mildred Gillars, a German-American, along with Rita Zucca was nicknamed "Axis Sally" for broadcasting Axis propaganda (Zucca, an Italian-American, had renounced her US citizenship and it was decided not to indict her for treason, but in 1946 she was convicted by an Italian military tribunal on charges of collaboration and was released nine months later after the Italian government declared a general amnesty for collaborators).^[68][69] In 1949 Gillars was convicted on one count of treason.^[70][71] She was sentenced to 10 to 30 years in prison.^[72][73] She was released on June 10, 1961.^[74][75]

In 1949, Iva Toguri D'Aquino was convicted of treason for wartime Radio Tokyo broadcasts (under the name of "Tokyo Rose") and sentenced to ten years, of which she served six. As a result of prosecution witnesses having lied under oath, she was pardoned in 1977.

In 1952, Tomoya Kawakita, a Japanese-American dual citizen was convicted of treason and sentenced to death for having worked as an interpreter at a Japanese POW camp and having mistreated American prisoners. He was recognized by a former prisoner at a department store in 1946 after having returned to the United States. The sentence was later commuted to life imprisonment and a $10,000 fine. He was released and deported in 1963.

The Cold War saw frequent talk linking treason with support for Communist-led causes. The most memorable of these came from Senator Joseph McCarthy, who used rhetoric about the Democrats as guilty of "twenty years of treason". As chosen chair of the Senate Permanent Investigations Subcommittee, McCarthy also investigated various government agencies for Soviet spy rings; however, he acted as a political fact-finder rather than a criminal prosecutor. The Cold War period saw no prosecutions for explicit treason, but there were convictions and even executions for conspiracy to commit espionage on behalf of the Soviet Union, such as in the Julius and Ethel Rosenberg case.

On October 11, 2006, the United States government charged Adam Yahiye Gadahn for videos in which he appeared as a spokesman for al-Qaeda and threatened attacks on American soil.^[76] He was killed on January 19, 2015, in an unmanned aircraft (drone) strike in Waziristan, Pakistan.^[77]

• Article Three of the United States Constitution

• Oaks, Dallin H.; Hill, Marvin S. (1975). Carthage Conspiracy: The Trial of the Accused Assassins of Joseph Smith. Urbana, IL: University of Illinois Press. ISBN 0-252-00554-6.