Bills Of Attainder

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.


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. 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.



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