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A legislative act pronouncing a person guilty of a crime, usually treason, without trial and subjecting that person to capital punishment and attainder. Such acts are prohibited by the U.S. Constitution.
During the sixteenth and seventeenth centuries the British Parliament often employed enactments called bills of attainder to inflict the death penalty on persons deemed guilty of seditious acts, such as attempting to overthrow the government. In addition to the death sentence, a bill of attainder usually carried with it a “corruption of blood,” which meant that the attainted party's property could not pass to his heirs. If the bill imposed a punishment short of death, such as banishment, confiscation of goods, or loss of the right to vote, it was called a bill of pains and penalties. These two kinds of bills were not restricted to England. During the American Revolution, the legislatures of many states enacted bills of attainder or bills of pains and penalties against persons deemed guilty of disloyalty to the American cause.
Article I, section 9, clause 3 of the U.S. Constitution forbids the federal government from passing bills of attainder. The same prohibition is imposed on the states by Article I, section 10, clause 1. The U.S. Supreme Court decided at an early time, without argument, that these two clauses covered bills of pains and penalties as well as bills of attainder proper. Although this conclusion is not compelled by the language of the Constitution, it becomes entirely persuasive when the purpose of the prohibition is considered. Both bills of attainder and bills of pains and penalties are legislative acts that inflict punishment without a judicial trial. Regardless of whether the punishment decreed is death or something less than death, such enactments violate principles deeply embedded in the constitutional structure. The Constitution separates the judicial power from the legislative power (see Separation of Powers). Legislative bodies are supposed to enact general rules, applicable to all persons or certain classes of people, which grant rights to them or impose duties, prohibitions, or disabilities on them. It is the function of the judicial branch to decide, under structured procedures containing safeguards against error and abuse of power, whether a specific person is entitled to a right, or subject to a duty, prohibition, or disability established by the legislatures. Bills of attainder and bills of pains and penalties are thoroughly at odds with these principles. They inflict punitive sanctions in disregard of judicial methods of proof designed to insure fairness in fact‐finding. The history of bills of attainder has also shown that their passage was often induced by popular passion or motivated by unproved suspicions.
In the context of the bill of attainder clauses of the Constitution, the concept of punishment has not been restricted by the courts to the typical sanctions employed by the system of criminal justice, such as capital punishment, imprisonment, punitive fines, and confiscation of property. The bill of attainder clauses have been broadly construed to include deprivations of rights, civil or political, disqualification from office, and legislative bars to participation in specific employments or professions. Essential to a finding of attainder is a determination by the court that it was the legislature's intent to punish rather than to regulate for a legitimate political purpose.
Traditionally, most bills of attainder designated the persons subjected to punishment by name. In some cases, however, legislatures imposed punishment on groups whose individual members could be ascertained without much difficulty. For example, a federal statute made it a crime for members of the Communist party to serve as officers of a labor union. The purpose of the statute was to protect the national economy by minimizing the danger of political strikes. The Court in United States v. Brown (1965) invalidated the statute as a bill of attainder. Since not all members of the Communist party were likely to incite political strikes, and since noncommunist agitators might also engage in such conduct, the decision whether the activities of a particular person presented the danger to be guarded against should have been left to the judicial branch. The Supreme Court suggested that Congress could validly enact a general rule barring persons expected to initiate political strikes from union office instead of imputing the undesirable trait to specific persons, namely members of the Communist party (see Communism and Cold War).
Bibliography
— Edgar Bodenheimer
A law that indicates the guilt of an individual without trial. In effect, this transfers the functions of ascertaining guilt and sentencing from the judiciary to the legislature. Under Article One, sections nine and ten of the US Constitution, ‘No Bill of Attainder shall be passed by either Congress or State legislature’. Acts of Attainder were employed by the British Parliament between the fifteenth and early eighteenth century, but have not been used since.
A bill of attainder is a law that punishes a person without permitting him a trial or fair hearing in a court of law. It is punishment by legislation. Article 1, Section 9, of the U.S. Constitution forbids Congress to pass a bill of attainder, and Article 1, Section 10, prohibits any state government from enacting one. If the Constitution permitted bills of attainder, government officials could, by law, force the person attained or punished by legislative act to forfeit his liberty, property, or income. Using a bill of attainder, government officials could punish an individual who criticizes them or who belongs to an unpopular group. The U.S. Constitution protects the rights of individuals by denying to the government the power to pass a bill of attainder.
A special legislative enactment that imposes a death sentence without a judicial trial upon a particular person or class of persons suspected of committing serious offenses, such as treason or a felony.
A bill of attainder is prohibited by Article I, Section 9, Clause 3 of the Constitution because it deprives the person or persons singled out for punishment of the safeguards of a trial by jury.
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A bill of attainder (also known as an act or writ of attainder) is an act of legislature declaring a person or group of persons guilty of some crime, and punishing them, without benefit of a trial. The United States Constitution forbids both the federal and state governments to enact bills of attainder, in Article 1, Sections 9 and 10, respectively. It was considered an excess or abuse of the British monarchy and Parliament. They were abolished in the United Kingdom in 1870.[1]
The word "attainder", meaning "taintedness", is part of English common law. Under English law, a criminal condemned for some crime, usually treason, could be declared "attainted", meaning that his civil rights were nullified: he could no longer own property or pass property to his family by will or testament. His property would consequently revert to the Crown. Any peerage titles would also revert to the Crown. The convicted person might also be punished in other ways; for example, in the case of attainder for treason, he could be executed.
Bills of attainder evolved into a convenient way for the King to convict subjects of crimes and confiscate their property without the bother of a trial—and without the need for a conviction or indeed any evidence at all.
In some cases (at least regarding the peerage) the Crown would eventually re-grant the convicted peer's lands and titles to his heir. It was also possible, as political fortunes turned, for a bill of attainder to be reversed. This might even happen long after the convicted person was dead.
The first use of attainder was in 1321 against the Earl of Winchester and the Earl of Gloucester, who both shared the name Hugh le Despenser, and the last in 1798 against Lord Edward FitzGerald for leading the Irish Rebellion of 1798.
In England, those executed after the passing of Attainders include Thomas Cromwell (1540), Margaret Pole, Countess of Salisbury (1540), Catherine Howard (1542), Thomas Seymour, Baron Seymour of Sudeley (1549), Thomas Howard (1572), Thomas Wentworth (1641), Archbishop William Laud (1645), and the Duke of Monmouth. In the case of Catherine Howard, in 1541 King Henry VIII was the first monarch to delegate Royal Assent, to avoid having to assent personally to the execution of his wife.
Although deceased by the time of the Restoration, the regicides John Bradshaw, Oliver Cromwell, Henry Ireton and
Bills of attainder were used through the 18th century in England, and were applied to English colonies as well. One of the motivations for the American revolution was anger at the injustice of attainder—though the Americans themselves used bills of attainder to confiscate the property of English loyalists (called tories) during the revolution. American dissatisfaction with attainder laws motivated their prohibition in the Constitution (see the case of Parker Wickham). The provision forbidding state law bills of attainder reflects the importance that the framers attached to this issue, since the unamended constitution imposes very few restrictions on state governments' power.
Within the U.S. Constitution, the clauses forbidding attainder laws serve two purposes. First, they reinforced the separation of powers, by forbidding the legislature to perform judicial functions—since the outcome of any such acts of legislature would of necessity take the form of a bill of attainder. Second, they embody the concept of due process, which was later reinforced by the Fifth Amendment to the Constitution. The text of the Constitution, Article I, Section 9; Clause 3 is:
The constitution of every State also expressly forbids bills of attainder. For example, Wisconsin's constitution Article I, Section 12 reads:
Contrast this with the subtly more modern variation of the Texas version: Article 1 (Titled Bill of Rights) Section 16, entitled Bills of Attainder; Ex Post Facto or Retroactive Laws: Imparing Obligation of Contracts:
Up until 2002, only five acts of Congress had ever been overturned on bill of attainder grounds. The Elizabeth Morgan Act was overturned in 2003 as a bill of attainder. Many suggested that the Palm Sunday Compromise in the case of Terri Schiavo was also a bill of attainder.
The cases of U.S. v. Brown,[5] U.S. v. Lovett,[6] and In re Yung Sing Hee[7] establish bills of pains and penalties as punishment without trial, and included within the prohibitions of bills of attainder. The precedent that best reflects most of the original intention of the mandates is from Cummings v. Missouri.[8] It states,
U.S. v. Lovett was a case historically relevant to taking away pay checks of government workers Congress could accuse of being Communists. This was an asset forfeiture case. It states:
In recent years Congress has been passing a number of statutes, mainly for gun control, that legislatively disable rights on the basis of either judicial due process having been done, perhaps in a different jurisdiction, but in which the right was not disabled as part of the sentence, or disabled on the basis of an ex parte judicial or quasi-judicial administrative procedure, such as confinement for psychological evaluation. Although conviction of violation might involve a trial, the defendant is not permitted to challenge the disablement. It has been argued that this kind of disablement constitutes a bill of attainder.[9]
In two cases of attempts to pass laws inflicting a judicial penalty on a specific person (in the first case Clifford Olson, in the second case Karla Homolka), the speakers of the House and Senate, respectively, have ruled that Canadian parliamentary practice does not permit bills of attainder or bills of pains and penalties.[10][11]
The British King James II, driven off by the ascent of William and Mary in the Glorious Revolution, came to Ireland intent on reclaiming his throne. With his arrival, the Parliament of Ireland began work on a list of names, eventually tallying around three thousand. Those on the list were to report to Dublin for sentencing. One man, Lord Mountjoy, was in the Bastille at the time and was told by the Irish Parliament that he must break out of his cell and make it back to Ireland for his punishment, or face the grisly process of being drawn and quartered.[12]
Previously secret British War Cabinet papers released on January 1 2006, have shown that, as early as December 1942, the War Cabinet had discussed their policy for the punishment of the leading Nazis if captured. British Prime Minister Winston Churchill had then advocated a policy of summary execution with the use of an Act of Attainder to circumvent legal obstacles, and was only dissuaded from this by pressure from the U.S. later in the war. [13]
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 | Dictionary. The American Heritage® Dictionary of the English Language, Fourth Edition Copyright © 2007, 2000 by Houghton Mifflin Company. Updated in 2007. Published by Houghton Mifflin Company. All rights reserved. Read more |
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| US Supreme Court. The Oxford Companion to the Supreme Court of the United States. Copyright © 1992, 2005 by Oxford University Press. All rights reserved. Read more |
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| Political Dictionary. The Concise Oxford Dictionary of Politics. Copyright © 1996, 2003 by Oxford University Press. All rights reserved. Read more |
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| US Government Guide. The Oxford Guide to the United States Government. Copyright © 1993, 1994, 1998, 2001, 2002 by John J. Patrick, Richard M. Pious, Donald M. Ritchie. All rights reserved. Read more |
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| Law Encyclopedia. West's Encyclopedia of American Law. Copyright © 1998 by The Gale Group, Inc. All rights reserved. Read more |
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| Wikipedia. This article is licensed under the GNU Free Documentation License. It uses material from the Wikipedia article "Bill of attainder". Read more |
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