A Bill of
A...What?
by Wendy
McElroy
Saturday, December 4, 1999
An antiquated term from the Constitution is making an
unfortunate comeback. It is commonly heard in arguments against
asset forfeiture laws by which authorities can seize the property
of suspected 'criminals' who have been neither tried nor
convicted. The term is 'Bill of Attainder.' Article I, section 9,
paragraph 3, admonishes Congress that "No Bill of
Attainder... shall be passed." Section 10 addresses a
similar prohibition to the individual States. What is a Bill of
Attainder? And why is it relevant to your life in the 21st
century?
Chief Justice William H. Rehnquist defined the term as used in
the Constitution, "A bill of attainder was a legislative act
that singled out one or more persons and imposed punishment on
them, without benefit of trial." The prohibition against
Bills of Attainder was meant to prevent a person from being
'tried' by the legislature rather than by the judiciary. It was
an attempt to guarantee a fair trial prior to the imposition of
penalties. The prohibition was sparked by the first-hand
experience the colonists had with British authority. Soldiers
routinely confiscated or imposed other 'legislated' penalties on
the property of suspected 'criminals' -- e.g. political
dissidents (traitors to the Crown.)
What does 18th century history have to do with cyber-age reality?
Bills of Attainder have re-emerged as 'civil asset forfeiture
laws.' Recent federal statutes have dramatically increased the
power of enforcement officials to confiscate private property
without a trial. Under a banner reading 'War Against Drugs,'
authorities routinely confiscate property that is involved in
suspected wrongdoing even if the owner is demonstrably innocent.
For example, a house may be confiscated even if the alleged
wrongdoer was a tenant. To regain the property, the owner must
prove his 'innocence' in civil court without benefit of appointed
counsel and within unreasonably short time limits. In other
words, a legislative act imposes penalties and punishment without
benefit of trial.
Bills of Attainder have their origin in early English common
law. A person condemned to death or banished for a crime
such as 'outlawry' was considered 'attaint.' That is, his blood
was tainted. The crown could claim his land, thus barring his
children from inheriting it. In 1459, Parliament began to use
Bills of Attainder to confiscate wealth without the barrier of a
bothersome judicial process. Henry VIII became particularly
notorious for using such Bills to punish political enemies whom
he could 'convict' in no other manner. American Revolutionaries
rebelled against this practice. Instead, they sought to balance
power between the legislature and the judiciary in order to
protect the individual from state confiscation of private
property.
During the Civil War and its vengeful aftermath, many
Constitutional protections were breached. On July 17, 1862, the
North passed the Confiscation Act to "suppress insurrection,
to punish treason and rebellion, to seize and confiscate the
property of rebels." But, to avoid becoming a Bill of
Attainder, the Act confiscated property only for the life of the
rebel. Thereafter, it passed to his children who born no taint of
blood. Subsequent court decisions called even the original
confiscation into question. In Cummings v. Missouri (1867), the
court held, "A bill of attainder is a legislative act which
takes away the life, liberty or property of a particular named or
easily ascertainable person or group of persons because the
legislature thinks them guilty of conduct which deserves
punishment."
Today, property is routinely confiscated from individuals and
denied as inheritance to their children. The theft is directed at
ordinary, peaceful people. In 1997, Cheryl Sanders was stopped by
the Louisiana state police for speeding. Although she had no
prior arrest, her car was seized on suspicion of transporting
drugs. A strip search of both Sanders and her car revealed
nothing. Seven months and thousands of dollars later, Sanders
finally regained her property only to sell it to pay off legal
fees. The property-hungry persecution is not limited to alleged
drug cases. In early 1998, under a law similar to those regarding
drugs, an Ohio couple in Morrow County had their 36-acre farm
confiscated because they held dog-fights.
A glimmer as to why civil asset forfeiture is spreading may be
gained from one fact. Proceeds from the sale of confiscated
property regularly go into the coffers of Sheriff's and
Prosecutor's offices or other law enforcement agencies.
Between 1993 and 1997, the Justice Department alone gleaned
almost 2 billion dollars from property seized in connection with
alleged 'drug-cases.' One of the cases was 'Paul and Ruth
Derbacher.' Their house in Connecticut was sold after police
discovered drugs that their grandson had brought into the house
without their knowledge. Into whose pocket has their life savings
disappeared?
Law enforcement agencies use civil asset forfeiture to enrich
themselves at the expense of individuals who can no longer claim
judicial protection. One victim asked after he was physically
brutalized and his van damaged without recompense in a fruitless
drug search, "What next? Door-to-door strip searches?"