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?"