The Bill of Attainder Argument

I wrote this in late July. For some reason I forgot to post it. So here you go...


July 30th, 2008
To Whom It May Concern:

I write this letter with the intent of bringing to light some constitutional issues that have arisen in our country in the last decade. Congress has begun the eroding of our rights, one at a time. They are hoping to establish a precedence of the people relying on the government for protection of all rights. This gives an air of an implied or awarded rights and not an inalienable right. This is against the very nature of the constitution that we hold as the basis of all laws in this nation. This matter has come to a boiling point in the last 2-3 years. No longer are people sitting by and complaining. Now we are starting to see an emergence of advocates on many different issues. All of which are in regards to Civil and Human Rights.

In writing this letter, I hope to evoke some thought as to the erosion of Human Rights in this country, mostly, in the arena of criminals. That is where Congress is starting, most specifically, with Sex Offenders.

According to Federalist Papers #57:

“The aim of every political constitution is, or ought to be, first to obtain for rulers men who possess most wisdom to discern, and most virtue to pursue, the common good of the society; and in the next place, to take the most effectual precautions for keeping them virtuous whilst they continue to hold their public trust.”

This shows that Congress was meant to show wisdom and discernment in the making of new laws. They were also supposed to stay “virtuous” while still in office.

It goes on to say:

“I will add, as a fifth circumstance in the situation of the House of Representatives, restraining them from oppressive measures, that they can make no law which will not have its full operation on themselves and their friends, as well as on the great mass of the society. This has always been deemed one of the strongest bonds by which human policy can connect the rulers and the people together. It creates between them that communion of interests and sympathy of sentiments, of which few governments have furnished examples; but without which every government degenerates into tyranny.”

This shows that the Congress is not supposed to pass any law that is not applicable to them as well. And if they try to, how is it to be combated? Here is the response:

“If it be asked, what is to restrain the House of Representatives from making legal discriminations in favor of themselves and a particular class of the society? I answer: the genius of the whole system; the nature of just and constitutional laws; and above all, the vigilant and manly spirit which actuates the people of America, a spirit which nourishes freedom, and in return is nourished by it.”

And with the tolerance shown by today’s society, here is the response to that as well:

“If this spirit shall ever be so far debased as to tolerate a law not obligatory on the legislature, as well as on the people, the people will be prepared to tolerate anything but liberty.”

We have shown that Congress is there to create laws for which we are all to live by. Originally, Congress helped in the creation of the Constitution. The Constitution was put in place to help govern the people. It was set up to give us the structure we needed, but also the freedoms that we would live by. It was signed by the Framers as a contract between the citizens and the government sworn to protect them. With the passage of laws in the last four decades, we have started to get away from the intent set forth by the Framers. The government was created as an entity of support and protection. Not a tyrannical establishment bent on seizing the rights of the free, and especially those that have sinned against the common good.

In the Contract Clause of this very Constitution, it states:

The Supreme Court laid out the test for whether a law violates the Contract Clause. The test is a three part test.

· First, the state regulation must substantially impair a contractual relationship.

· Second, the State "must have a significant and legitimate purpose behind the regulation, such as the remedying of a broad and general social or economic problem." 459 U.S. at 411-13

· Third, the law must be reasonable and appropriate for its intended purpose.
This test is similar to rational basis review.

Never has our Constitution “substantially impaired” our contractual relationship. Never has there been a “significant legitimate purpose” for “remedying” our Constitution. The Bill of Rights, yes; the Constitution, NO! The new “laws” have proven themselves to be unreasonable and inappropriate for their “intended purpose.” These laws are proving themselves to be more punitive in nature than the regulatory one that the States would have us believe it to be.

What is the difference between punitive and regulatory you may ask? I’ll answer your question.
But first, a little background on the two stages we will be talking about.

Regulatory Action

According to http://www.wikipedia.org/,

Civil law courts provide a forum for deciding disputes involving torts (such as accidents, negligence, and libel), contract disputes, the probate of wills, trusts, property disputes, administrative law, commercial law, and any other private matters that involve private parties and organizations including government departments. An action by an individual (or legal equivalent) against the attorney general is a civil matter, but when the state, being represented by the prosecutor for the attorney general, or some other agent for the state, takes action against an individual (or legal equivalent including a government department), this is public law, not civil law. In public law the objective is usually deterrence, and retribution. The victim, or people secondarily harmed by the wrong, do not get compensated, except with that vague notion called 'closure.'

So, as we see here, Civil Law is for disputes with contracts. Torts, contract disputes, probate of wills, trusts, property disputes, administrative law, commercial law, and private matters are all between two “people” and are set with no punishment (aka no punitive action).

Criminal Law on the other hand…

According to http://www.wikipedia.org/,

Criminal law is distinctive for the uniquely serious potential consequences of failure to abide by its rules. Every crime is composed of criminal elements. Capital punishment may be imposed in some jurisdictions for the most serious crimes. Physical or corporal punishment may be imposed such as whipping or caning, although these punishments are prohibited in much of the world. Individuals may be incarcerated in prison or jail in a variety of conditions depending on the jurisdiction. Confinement may be solitary. Length of incarceration may vary from a day to life. Government supervision may be imposed, including house arrest, and convicts may be required to conform to particularized guidelines as part of a parole or probation regimen. Fines also may be imposed, seizing money or property from a person convicted of a crime.

Five objectives are widely accepted for enforcement of the criminal law by punishments: retribution, deterrence, incapacitation, rehabilitation and restitution. Jurisdictions differ on the value to be placed on each.

Retribution - Criminals ought to suffer in some way. This is the most widely seen goal. Criminals have taken improper advantage, or inflicted unfair detriment, upon others and consequently, the criminal law will put criminals at some unpleasant disadvantage to "balance the scales." This belief has some connection with utilitarianism. People submit to the law to receive the right not to be murdered and if people contravene these laws, they surrender the rights granted to them by the law. Thus, one who murders may be murdered himself. A related theory includes the idea of "righting the balance."

Deterrence - Individual deterrence is aimed toward the specific offender. The aim is to impose a sufficient penalty to discourage the offender from criminal behavior. General deterrence aims at society at large. By imposing a penalty on those who commit offenses, other individuals are discouraged from committing those offenses.

Incapacitation - Designed simply to keep criminals away from society so that the public is protected from their misconduct. This is often achieved through prison sentences today. The death penalty or banishment have served the same purpose.

Rehabilitation - Aims at transforming an offender into a valuable member of society. Its primary goal is to prevent further offense by convincing the offender that their conduct was wrong.

Restitution - This is a victim-oriented theory of punishment. The goal is to repair, through state authority, any hurt inflicted on the victim by the offender. For example, one who embezzles will be required to repay the amount improperly acquired. Restitution is commonly combined with other main goals of criminal justice and is closely related to concepts in the civil law.

The word punishment is found many times in the Criminal Law. Punishment is not a Regulatory Action. It is punitive in nature.

So, back to the question at hand.

What is the difference between punitive and regulatory?

Regulatory is meant to do just that, regulate. There is no “punishment” associated with regulation. Regulations provide direction and information on how to do something. If a regulation has a “punishment” attached to it, it ceases to be regulatory and becomes punitive. Punitive is meant to punish and rehabilitate. Punitive does not show you how to do something, or even direct you. It is there for one purpose only. Punish.

If a punitive law is passed and it is meant to be retroactive, it falls under the Ex Post Facto Clause of the Constitution.

An ex post facto law or retroactive law, is a law that retroactively changes the legal consequences of acts committed or the legal status of facts and relationships that existed prior to the enactment of the law. In reference to criminal law, it may criminalize actions that were legal when committed; or it may aggravate a crime by bringing it into a more severe category than it was in at the time it was committed; or it may change or increase the punishment prescribed for a crime, such as by adding new penalties or extending terms; or it may alter the rules of evidence in order to make conviction for a crime more likely than it would have been at the time of the action for which a defendant is prosecuted. Conversely, a form of ex post facto law commonly known as an amnesty law may decriminalize certain acts or alleviate possible punishments (for example by replacing the death sentence with life-long imprisonment) retroactively.

The constitution has a strict policy on this. It says “No Bill of Attainder or ex post facto Law shall be passed.” In theory, this should stop any bill from being passed retroactively. Unfortunately, this is not what happens in the creation of today’s laws.

Another piece that these laws are inhibiting is Due Process of Law.

Due Process of Law has two parts to it, Substantive and Procedural.

Substantive Due Process:

Substantive Due Process is the inherent freedoms mentioned in the U.S. Constitution and the Bill of Rights. It also takes into consideration those secondary rights allotted by these same documents.

In the words of www.answers.com/due%20process the definition is as follows:

“Substantive due process concerns specific behaviors of individuals that, according to the Court, are generally beyond the reach of government power, such as the free exercise of religion or participation in private organizations that petition the government about public problems and issues. The government may not regulate these actions, not even by the use of the fairest legal procedures, because to do so would violate the most fundamental rights of individuals in a constitutional government, such as rights to liberty, property, and equality under the law. If government officials want to regulate these kinds of usually protected actions, they must demonstrate that they cannot achieve a legitimate public purpose by any other means.”

Some of these rights are:

· Freedom of Association
· Freedom to Participate
· Freedom of Movement
· Freedom of Privacy
· Freedom of Choice

This is just a partial list of the Rights we have that Substantive Due Process provides for.

Procedural Due Process:

Procedural Due Process is the process by which our rights are maintained. Precedence and procedures are the basis for this right.

According to www.answers.com/due%20process the definition is as follows:

“These rights of the accused are examples of procedural due process, and they are constitutional limits on the power of government designed to protect the rights and liberties of individuals.Procedural due process—the idea that government must follow fair and generally accepted legal procedures in its actions against individuals—has been traced to the great English charter of liberty, the Magna Carta (1215). By signing this document, King John of England agreed to “obey the law of the land.” This idea developed into the legal guarantee of procedural due process of law to protect people against arbitrary or lawless punishments or penalties imposed by the government.”

Some of these rights are:

· Freedom of Assembly
· Freedom to Vote
· Freedom to Travel
· Freedom from Search and Seizure
· Freedom of Property
· Freedom from Bodily Invasion

Basically, if Congress doesn’t follow “fair and generally accepted legal procedures,” then it is not following the law of Procedural Due Process.

This leads us to the issue of Civil Rights and how they are allotted.

In the Civil Rights Act of 1871, they were specific as to what would happen, or be allowed to happen, if Congress were to take one of our rights away.

“Every person who under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, Suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.”

Later, the United Nations also came out with a Bill of Rights that the United States of America signed.

The document can be found at http://www.unhchr.ch/udhr/lang/eng.htm. But the basic gist of the document reads that no Nation shall usurp the Rights of its citizens as these are inalienable rights handed down by God.

Some of our inalienable rights can be found in the Constitution, and some in our own Bill of Rights.

One of the main inalienable rights is Liberty.

“Liberty is divided into four types: natural, personal, civil and political. The first two are inalienable; the latter two are government granted. Natural liberty is absolute freedom, limited only by the laws of nature. It is exercised upon one's private property or upon unclaimed property (anywhere else would be a trespass). Personal liberty is the right of locomotion, the freedom to travel upon public roads and waterways; limited only by the requirement to not infringe another's right to travel. Civil liberty is the permission from government to do that which would otherwise be a trespass, a tort or not allowed by law. A license to practice medicine is an example of a civil liberty (inflict injury without criminal liability). Political liberty is the permission to vote and hold office. In countries with socialist / communist governments that abolish private property rights, natural and personal liberty does not exist. Permission (license) is required for most activities and actions.”

Other inalienable rights have already been discussed in this letter.

To take these rights away, there has to be a great reason for doing so.

The problem lies not so much in surrendering your rights once you have broken the law, it’s the continued loss of these rights as well as new ones after the fact. This continual loss of rights is a punishment greater than that set aside for us in any plea bargain we may sign or have signed.
To punish someone like that, creates a punitive action. Any bill that is passed by Congress with the intent to punish, or has punishing capabilities is illegal. Congress’ right is to create laws, not enforce them. That is the job of the Judiciary Branch of the Government set forth in the very Constitution of these United States of America.

Some examples of Congress’ intent for punitive action:

Rep. Virginia Brown-Waite [R-FL]:
“That is what this bill is all about; it is going after those, as someone once described, pond-scum predators.”

Sen. Orrin Hatch [R-UT]:
“The bottom line here is that sex offenders have run rampant in this country and now Congress and the people are ready to respond with legislation that will curtail the ability of sex offenders to operate freely.”

Sen. Charles Grassley [R-IA]:
“Child sex offenders are the most heinous of all criminals. I can honestly tell you that I would just as soon lock up all the child molesters and child pornography makers and murderers in this country and throw away the key.”

Rep. James Sensenbrenner [R-WI]:
“…the bill increases criminal penalties to punish and deter those who prey on children.”
As well as this:

“The bill also increases criminal penalties to punish and deter those who prey on children…” (Stated in two different parts of his speech)

Here we have a bill that is Civil, yet creates and intent of punishment, which is Criminal.
Any time Congress creates a law that is meant to punish (either with intent by the legislators creating the law, or in fact with the wording of the law) it falls under the Bill of Attainder Clause found in the Constitution under Article 1, sections 9 and 10.

Bills of Attainder:

According to http://www.findlaw.com/

''Bills of attainder . . . are such special acts of the legislature, as inflict capital punishments upon persons supposed to be guilty of high offences, such as treason and felony, without any conviction in the ordinary course of judicial proceedings. If an act inflicts a milder degree of punishment than death, it is called a bill of pains and penalties. . . . In such cases, the legislature assumes judicial magistracy, pronouncing upon the guilt of the party without any of the common forms and guards of trial, and satisfying itself with proofs, when such proofs are within its reach, whether they are conformable to the rules of evidence, or not. In short, in all such cases, the legislature exercises the highest power of sovereignty, and what may be properly deemed an irresponsible despotic discretion, being governed solely by what it deems political necessity or expediency, and too often under the influence of unreasonable fears, or unfounded suspicions.'' The phrase ''bill of attainder,'' as used in this clause and in clause 1 of Sec. 10, applies to bills of pains and penalties as well as to the traditional bills of attainder.

Basically, if Congress passes a law that has a punishment attached to it, and it singles out a person or “easily ascertainable group,” then it falls under a Bill of Attainder. This is providing that the punishment is handed out without the benefit of a Jury Trial.

Also, this comes to mind:

“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.”

With Congress and the media continually misquoting recidivism rates for the sex offenders, it’s no wonder that these laws are flying through our Legislative system. One bill that I know of, from introduction to the Senate, to the passage in the House of Representatives, was a total of eight and a half months. This time included only 120 minutes of total discussion time collaboratively between the House and the Senate. It was brought under a suspension calendar which is only supposed to be used for the mundane things like the naming of post offices. It was never meant to be used for major controversial issues of the current day. Those need to be debated thoroughly to make sure that no rights are infringed upon. But in this case, that was purposefully pushed aside in an attempt to rush the bill to vote.

Specifically, we are talking about the Adam Walsh Act. This is a collection of popular issues with the focus being on sex offenders. The issue of sex offenders was used to piggyback the other topics. Then the bill was placed on suspension calendar which didn’t allow for amendments, or debate. Many times over, according to the Congressional Record, it was shown that the intent was to “punish” the “pond-scum predators.” Congress was intent on finding ways to “regulate” these offenders by giving them greater “punishments.” That’s a mix of Civil Law and Criminal Law. Also against the Law they are sworn to uphold.

On one hand, it’s a Bill that needs to be voiced. But, on the other hand, the way in which it was passed, the lack of Congressional Record to the final vote cast, or the submission of the passed bill to the President, screams of something foul.

There were Legislators for and against. We’ve heard from some that were for it a moment ago.

Now let’s hear from some that are against it.

Rep. Fortney Stark [D-CA]:
“Once again, this Congress is attempting to address very serious and complicated problems with a law that substitutes the talking points of "tough on crime" politicians for the wisdom of judges, prosecutors, treatment professionals and child advocates.”

That seems to say that Congress is trying to institute themselves as the Judge and Jury while pushing out those that are supposed to cover that arena.

Also from Rep. Stark:
“I cannot violate my Constitutional duty to protect our independent judiciary nor can I support extreme, dangerous policies, so I will vote against this bill.”

Rep. Barney Frank [D-MA]:
“…it is being dealt with in a manner in which no amendments are allowed, in which only 40 minutes total of debate are allowed. And it is a bill brought forward because the committee leadership didn't like what happened when the House actually voted on it in a democratic manner.”

Also from Rep. Frank:
“This is a shameful example of the degradation of the democratic process that has befallen this House. What happens is what has happened in the past: things get put in here that cannot be individually examined, they cannot be debated. Members will feel pressured to vote for the overall package. Members, and this is the goal, put a lot of things in here that are very important and very good, many of which I have voted for in the past, many of which I want to vote for. But Members have put in a few other things that are very controversial and do not allow this House to approach looking at things individually and saying an amendment here, yes or no. And then if Members do not buy the whole package, then you go after them.

The Republican majority has decided to legislate in the same manner in which you give a pill to a dog: you take something that the dog wants and you stick a couple of pills in it and you ram it down its throat. That is an inappropriate way for this democratic House to proceed.”

Here he is speaking of the underhanded tactics of some people in Congress to slyly pass this highly controversial bill. He speaks of a lack of following procedure in the House and how it shames said House.

Rep. Robert Scott [D-VA]:
“Now, with no more basis than we had before, just the name of the crime and the continuing political appeal of appearing tough on sex offenders, we are again greatly increasing penalties with more death penalties and increased mandatory minimums, including more mandatory minimums for teenagers having consensual sex.”

On one hand, he is referring to the ridiculousness of having consensual sex teenagers having to register. But, on the other hand, he shows the intent of the Congress to gain more votes by the passage of new Sex Offender Laws for the mere appearance of being “tough on predators.”

This effort to appear to be tough on predators has launched a barrage of laws that have created serious problems in our society. Many studies show that offenders without support networks, jobs, friends, family, significant others, and the basic human right of self esteem, are at an increasingly high risk to reoffend. When an offender has nothing to lose, he can become dangerous indeed. These new laws are creating that effect, whether intentional or not.

With Congress using the suspension calendar to review and vote on so sensitive a topic as sexual abuse, it flies in the face of tradition. Due Process of Law by procedure is a valuable tool in the assurance of rights for all. Are we not afforded the same courtesy when a new law is being written as well? Are we not allowed the right to have laws passed by tradition and precedence? The AWA was passed without that consideration. And on the Substantive side of things, it takes away several of our human rights set forth in the constitution. The law is applied to ALL sex offenders, regardless of when they were convicted. This falls under the Ex Post Facto Clause of the Constitution. The Supreme Court has ruled several times that according to Smith v. Doe (Alaska ruling) that the Registry is “regulatory” and not “punitive.” Well, just recently, Alaska ruled in Doe v. Alaska, that the registry when used to apply to someone convicted prior to the passage of the law is in fact a punitive action. Therefore, the AWA is punitive for anyone convicted prior to its passage and target effect date. The AWA also falls under the Bill of Attainder clause found in the Bill of Rights as well as the Constitution. This law was passed with the intent and the effect of punishing hundreds of thousands of people in an “easily identifiable class” and their families as well. This can also be seen as a cruel and unusual punishment as well as falling under the Double Jeopardy Clause for punishing those offenders after they served their sentence and time.

Congress has the moral obligation to protect ALL of the citizens. These laws need to be written to help the offenders get rehabilitated, not solely to punishing them at every turn. Congress has gotten away from its intended purpose of creating legislation for the greater good of all. They are bent on finding ways of using hot topics to further their careers and ride the backs of those people who have made poor choices in life. They ceased to be a party of the people, by the people, and for the people. They are now a party of greedy people looking to cement their names in history.

Lately, there has been a strong call to restore the original intent of the Constitution and the ideas for which it stands for. This letter is intended to help facilitate that action. Repeal the AWA and send the message that people of these United States of America are tired of being deceived and lied to for political gain. The people are tired of oppression, and they are tired of corruption. Now is the time to stand and fight for our God given rights as human beings. If we continue to sit back and allow things to happen, no longer will be allowed our basic human rights. No longer will this be a Free Nation, but one of Dictatorship and Tyranny.

Now is the time to cement your name in history by creating a just and fair law that will stand the test of time. Create a law that works towards the rehabilitation and reunification of sex offenders into our society as productive members. Create groups that will offer support for offenders in need of counsel. Show that this country can be not only just, but compassionate as well. We need fairness and equality more than ever in our Legislation. Use the true facts, not just the ones made up to create a fear factor among the public. Show them the true colors that make up America. Show them the greatness that lies within. Show them, before it’s gone forever.

Thank you for your time.



A List of Resources:

The Federalist Papers:
· http://www.foundingfathers.info/federalistpapers/fedindex.htm


Bill of Attainder:
· http://en.wikipedia.org/wiki/Bill_of_attainder
· http://www.answers.com/topic/bill-of-attainder
· http://caselaw.lp.findlaw.com/data/constitution/article01/47.html
· http://frontpage.brightok.net/~sempai/billofattainder
· http://legal-dictionary.thefreedictionary.com/Sanctions
· http://www.independent.org/pdf/tir/tir_06_4_manweller.pdf

Congressional Record:
· http://www.govtrack.us/congress/record.xpd?id=109-h20060308-32&bill=h109-4472#sMonofilemx003Ammx002Fmmx002Fmmx002Fmhomemx002Fmgovtrackmx002Fmdatamx002Fmusmx002Fm109mx002Fmcrmx002Fmh20060308-32.xmlElementm48m0m0m
· http://www.govtrack.us/congress/record.xpd?id=109-s20060719-13&bill=h109-4472
· http://www.govtrack.us/congress/record.xpd?id=109-s20060720-7&bill=h109-4472
· http://www.govtrack.us/congress/record.xpd?id=109-h20060725-33&bill=h109-4472
· http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=71&invol=277

Due Process:
· http://www.usconstitution.net/consttop_duep.html
· http://en.wikipedia.org/wiki/Due_process
· http://www.answers.com/due%20process
· http://members.aol.com/abtrbng/sdp.htm


A list of further resources is available upon request.