Editing Bill of attainder

{{Short description|Legislation declaring a person guilty}}
{{redirect-distinguish|Writ of attainder|Writ of attaint}}
{{Use dmy dates|date=April 2024}}
{{Use British English|date=September 2012}}
A '''bill of attainder''' (also known as an '''act of attainder''', '''writ of attainder''', or '''bill of pains and penalties''') is an act of a [[legislature]] declaring a person, or a group of people, guilty of some crime, and providing for a punishment, often without a trial. As with [[attainder]] resulting from the normal judicial process, the effect of such a bill is to nullify the targeted person's [[civil rights]], most notably the right to own property (and thus pass it on to heirs), the right to a title of nobility, and, in at least the original usage, the right to life itself.

In the [[history of England]], the word "[[attainder]]" refers to people who were declared "attainted", meaning that their civil rights were nullified: they could no longer own property or pass property to their family by will or testament. Attainted people would normally be punished by [[execution (legal)|judicial execution]], with the property left behind [[escheat]]ed to the Crown or lord rather than being inherited by family. The first use of a bill of attainder was in 1321 against [[Hugh le Despenser, 1st Earl of Winchester]] and his son [[Hugh Despenser the Younger|Hugh Despenser the Younger, Earl of Gloucester]], who were both attainted for supporting [[Edward II of England|King Edward II]]. Bills of attainder passed in Parliament by [[Henry VIII of England|Henry VIII]] on 29 January 1542 resulted in the executions of a number of notable historical figures.

The use of these bills by Parliament eventually fell into disfavour due to the potential for abuse and the violation of several legal principles, most importantly the right to [[due process]], the precept that a law should address a particular form of behaviour rather than a specific individual or group, and the [[separation of powers]], since a bill of attainder is necessarily a [[judiciary|judicial]] matter. The last use of attainder was in 1798 against [[Lord Edward FitzGerald]] for leading the [[Irish Rebellion of 1798]]. The [[House of Lords]] later passed the [[Pains and Penalties Bill 1820]], which attempted to attaint [[Caroline of Brunswick|Queen Caroline]], but it was not considered by the [[House of Commons]]. No bills of attainder have been passed since 1820 in the UK.<ref>Zechariah Chafee, Jr., ''Three Human Rights in the Constitution of 1787 at 97'' (University of Kansas Press, 1956)</ref> Attainder remained a legal consequence of convictions in courts of law, but this ceased to be a part of punishment in 1870.<ref name="british-civil-wars" />

American dissatisfaction with British attainder laws resulted in their being prohibited in the [[United States Constitution]] in 1789. Bills of attainder are forbidden to both the federal government and the states, reflecting the importance that the [[Constitutional Convention (United States)#Framers of the Constitution|Framers]] attached to this issue. Every [[State constitution (United States)|state constitution]] also expressly forbids bills of attainder.<ref>{{Cite web|title=Bills of Attainder and Ex Post Facto Laws|url=https://law.justia.com/constitution/us/article-1/63-bills-of-attainder.html|website=Justia Law|language=en|access-date=2020-05-25}}</ref><ref name="kenrt" /> The [[U.S. Supreme Court]] has invalidated laws under the Attainder Clause on five occasions.<ref>{{cite journal |last1=Caplan |first1=Aaron H. |title=Nonattainder as a Liberty Interest |journal='Wisconsin Law Review |date=2010 |page=1209 |url=https://repository.law.wisc.edu/s/uwlaw/media/36707#page=27 |access-date=10 March 2025}}</ref> Most [[common-law]] nations have prohibited bills of attainder, some expressly and some impliedly.<ref>See, e.g., "[https://www.britannica.com/topic/attainder#ref271379 Attainder]", ''Encyclopædia Britannica'', 18 June 2004.</ref>

==Jurisdictions==

===Australia===
The [[Constitution of Australia]] contains no specific provision permitting the [[Parliament of Australia|Commonwealth Parliament]] to pass bills of attainder. The [[High Court of Australia]] has ruled that federal bills of attainder are unconstitutional, because it is a violation of the separation of powers doctrine for any body to wield judicial power other than a Chapter III court{{mdash}}that is, a body exercising power derived from Chapter III of the Constitution, the chapter providing for judicial power.<ref name="Wheat case">{{cite AustLII|HCA|17|1915|link=New South Wales v Commonwealth (1915)|litigants=New South Wales v Commonwealth |parallelcite=[http://www.austlii.edu.au/au/cases/cth/HCA/1915/17.pdf (1915) 20 CLR 54] |courtname=auto}}.</ref><ref name="Communist case">{{cite AustLII|HCA|5|1951|litigants=[[Australian Communist Party v Commonwealth]] |parallelcite=[http://www.austlii.edu.au/au/cases/cth/HCA/1951/5.pdf (1951) 83 CLR 1] |courtname=auto}}.</ref><ref name="Boilermakers">{{cite AustLII|HCA|10|1956|litigants=[[R v Kirby; Ex parte Boilermakers' Society of Australia]] |parallelcite=(1956) 94 [[Commonwealth Law Reports|CLR]] 254 |courtname=auto}}.</ref> One of the core aspects of judicial power is the ability to make binding and authoritative decisions on questions of law, that is, issues relating to life, liberty or property.<ref name="Huddart">{{cite AustLII|HCA|36|1909|litigants=[[Huddart, Parker & Co Pty Ltd v Moorehead]] |parallelcite=[http://www.austlii.edu.au/au/cases/cth/HCA/1909/36.pdf (1909)&nbsp;8&nbsp;CLR&nbsp;330] |courtname=auto}}.</ref><ref name="Polyukhovich">{{cite AustLII|HCA|32|1991|litigants=[[Polyukhovich v Commonwealth]] (War Crimes Act case) |parallelcite=(1991) 172 [[Commonwealth Law Reports|CLR]] 501 |courtname=auto}}.</ref> The wielding of judicial power by the legislative or executive branch includes the direct wielding of power and the indirect wielding of judicial power.<ref name="Lim">{{cite AustLII|HCA|64|1992|litigants=[[Chu Kheng Lim v Minister of Immigration]] |parallelcite=(1992) 176 [[Commonwealth Law Reports|CLR]] 1 |courtname=auto}}.</ref>

The [[State constitution (Australia)|state constitutions in Australia]] contain few limitations on government power. Bills of attainder are considered permissible because there is no entrenched separation of powers at the state level.<ref>''Building Construction Employees and Builders' Labourers Federation of New South Wales v Minister of Industrial Relations'' (1986) 7 [[NSW Law Reports|NSWLR]] 372, [[Supreme Court of New South Wales|Court of Appeal]] (NSW, Australia).</ref><ref>{{cite AustLII|VicRp|46|1994|litigants=City of Collingwood v Victoria [No2] |parallelcite=[1994] 1 [[Victorian Reports|VR]] 652 |courtname=auto}}.</ref> However, [[section 77 of the Constitution of Australia]] permits state courts to be invested with Commonwealth jurisdiction, and any state law that renders a state court unable to function as a Chapter III court is unconstitutional.<ref>{{cite AustLII|HCA|24|1996|litigants=[[Kable v Director of Public Prosecutions (NSW)]] |parallelcite=(1996) 189 [[Commonwealth Law Reports|CLR]] 51 |courtname=auto}}.</ref> The states cannot structure their legal systems to prevent them from being subject to the Australian Constitution.<ref>{{cite AustLII|HCA|1|2010|litigants=[[Kirk v Industrial Court of NSW]] |parallelcite=(2010) 239 [[Commonwealth Law Reports|CLR]] 531 |courtname=auto}}.</ref>

An important distinction is that laws seeking to direct judicial power (e.g. must make orders)<ref>{{cite AustLII|HCA|49|2009|litigants=International Finance Trust Company Ltd v New South Wales Crime Commission (Criminal Assets Recovery case) |parallelcite=(2009) 240 [[Commonwealth Law Reports|CLR]] 319 |courtname=auto}}.</ref> are unconstitutional, but laws that concern mandatory sentencing,<ref>{{cite AustLII|NTSC|120|1997|litigants=Wynbyne v Marshall |parallelcite=(1997) 99 {{abbr|A Crim R|Australian Criminal Reports}} 1 |courtname=auto}}.</ref><ref>''R v Moffatt'' [1998] 2 [[Victorian Reports|VR]] 229, [[Supreme Court of Victoria|Court of Appeal]] (Vic, Australia).</ref> rules of evidence,<ref>{{cite AustLII|HCA|9|1998|litigants=Nicholas v The Queen |parallelcite=(1998) 193 [[Commonwealth Law Reports|CLR]] 173 |courtname=auto}}.</ref> non-punitive imprisonment,<ref>{{cite AustLII|HCA|46|1998|litigants=Fardon v Attorney-General (QLD) |parallelcite=(2004) 223 [[Commonwealth Law Reports|CLR]] 575 |courtname=auto}}.</ref> or tests,<ref>
{{cite AustLII|HCA|7|2013|litigants=Assistant Commissioner Michael James Condon v Pompano Pty Ltd |parallelcite=(2013) 252 [[Commonwealth Law Reports|CLR]] 38 |courtname=auto}}.</ref> are constitutional.

State parliaments are, however, free to prohibit parole boards from granting parole to specific prisoners. For instance, sections 74AA and 74AB of the Corrections Act 1986 in [[Victoria (Australia)|Victoria]] significantly restrict the ability of the parole board to grant parole to [[Julian Knight (murderer)|Julian Knight]] or [[Craig Minogue]]. These have been upheld by the High Court of Australia and are distinguished from bills of attainder since the original sentence (life imprisonment) stands; the only change is the administration of parole.<ref>{{cite AustLII|HCA|29|2017|litigants=Julian Knight v The State of Victoria|courtname=auto}}</ref><ref>{{cite AustLII|HCA|31|2019|litigants=Craig William John Minogue v The State of Victoria|courtname=auto}}</ref>

===Canada===
In two cases of attempts to pass bills (in 1984 for [[Clifford Olson]] and in 1995 for [[Karla Homolka]]) to inflict a judicial penalty on a specific person, the speakers of the [[House of Commons of Canada|House]] and [[Senate of Canada|Senate]], respectively, have ruled that Canadian [[Parliamentary procedure|parliamentary practice]] does not permit bills of attainder or bills of pains and penalties.<ref>Canada: 32nd Parliament, 2nd Session, 14 May 1984 {{cite web|title=Debates of the House of Commons: "An Act respecting the execution of Clifford Robert Olson |url=http://parl.canadiana.ca/view/oop.debates_HOC3202_03/1321?r=0&s=1|publisher=Hansard|access-date=23 November 2015|page=3683}}</ref><ref>Canada: 35th Parliament, 1st Session, 28 November 1995 {{cite web|title=Debates of the Senate: "Bill Concerning Karla Homolka|url=http://parl.canadiana.ca/view/oop.debates_SOC3501_03/365?r=0&s=1|publisher=Hansard|access-date=23 November 2014|page=236}}</ref>

===United Kingdom===

====English law====
The word "[[attainder]]" is part of English [[common law]].{{efn|The word "attainder" does not, in fact, derive from a Latin expression meaning "tainted", but from a French expression meaning "to attain", in the sense of condemn.<ref>{{Cite web|url=http://www.oed.com/view/Entry/12725|title = Home : Oxford English Dictionary}}</ref>}} Under English law, a criminal condemned for a serious crime, whether [[treason]] or [[felony]] (but not [[misdemeanor|misdemeanour]], which referred to less serious crimes), 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 could consequently revert to [[the Crown]] or to the [[mesne lord]]. Any [[peerage]] titles would also revert to the Crown. The convicted person would normally be punished by [[execution (legal)|judicial execution]]{{snd}}when a person committed a capital crime and was put to death for it, the property left behind [[escheat]]ed to the Crown or lord rather than being inherited by family. Attainder functioned more or less as the revocation of the feudal chain of privilege and all rights and properties thus granted.

Due to [[mandatory sentencing]], the due process of the courts provided limited flexibility to deal with the various circumstances of offenders. The property of criminals caught alive and put to death because of a guilty plea or jury conviction on a not guilty plea could be forfeited, as could the property of those who escaped justice and were outlawed; but the property of offenders who died before trial, except those killed during the commission of crimes (who fell foul of the law relating to ''[[felo de se]]''), could not be forfeited, nor could the property of offenders who refused to plead and who were tortured to death through ''[[peine forte et dure]]''.

On the other hand, when a legal conviction did take place, confiscation and "corruption of blood" sometimes appeared unduly harsh for the surviving family. 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 sometimes occurred long after the convicted person was executed.

Unlike the mandatory sentences of the courts, acts of Parliament provided considerable latitude in suiting the punishment to the particular conditions of the offender's family. Parliament could also impose non-capital punishments without involving courts; such bills are called '''bills of pains and penalties'''.

Bills of attainder were sometimes criticised as a convenient way for the [[British monarchy|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. It was however relevant to the custom of the Middle Ages, where all lands and titles were granted by a king in his role as the "[[fount of honour]]". Anything granted by the king's wish could be taken away by him. This weakened over time as personal rights became legally established.

The first use of a bill of attainder was in 1321 against [[Hugh Despenser the Elder|Hugh le Despenser, 1st Earl of Winchester]] and his son [[Hugh Despenser the Younger|Hugh Despenser the Younger, Earl of Gloucester]]. They were both attainted for supporting [[Edward II of England|King Edward II]] during his struggle with the [[Isabella of France|queen]] and [[baron]]s.

In England, those executed subject to attainders include [[George Plantagenet, Duke of Clarence]] (1478); [[Thomas Cromwell]] (1540); [[Margaret Pole, Countess of Salisbury]] (1540); [[Catherine Howard]] (1542); [[Thomas Seymour, 1st Baron Seymour of Sudeley|Thomas, Lord Seymour]] (1549); [[Thomas Wentworth, 1st Earl of Strafford|Thomas Wentworth, Earl of Strafford]] (1641); Archbishop [[William Laud]] of [[Archbishop of Canterbury|Canterbury]] (1645); and [[James Scott, 1st Duke of Monmouth|James Scott, Duke of Monmouth]]. In the 1541 case of Catherine Howard, King [[Henry VIII]] was the first monarch to delegate [[royal assent]], to avoid having to assent personally to the execution of his wife.

After defeating [[Richard III of England|Richard III]] and replacing him on the throne of England following the [[Battle of Bosworth Field]], [[Henry VII of England|Henry VII]] had Parliament pass a bill of attainder against his predecessor.<ref>{{Cite news|url=https://www.independent.co.uk/voices/comment/richard-iii-the-truth-may-yet-be-discovered-8142320.html|title=Richard III: The truth may yet be discovered|work=The Independent|access-date=2018-10-13|language=en-GB}}</ref> It is noteworthy that this bill made no mention of the [[Princes in the Tower]], although it does declare him guilty of "shedding of Infants blood".<ref name="Kendall, Richard IIIA">{{cite book |last=Kendall |first=Paul Murray |ref=Kendall|title=[[Richard III (biography)|Richard the Third]]|author-link=Paul Murray Kendall|publisher=[[W. W. Norton]]|year= 1956|isbn=0-393-00785-5}}</ref>

Although deceased by the time of the [[Restoration (England)|Restoration]], the [[List of regicides of Charles I|regicides]] [[John Bradshaw (judge)|John Bradshaw]], [[Oliver Cromwell]], [[Henry Ireton]], and [[Thomas Pride]] were served with a bill of attainder on 15 May 1660 backdated to 1 January 1649 ([[Old Style and New Style dates|NS]]). After the committee stages, the bill passed both the [[House of Lords|Houses of Lords]] and [[House of Commons of the United Kingdom|Commons]] and was engrossed on 4 December 1660. This was followed with a resolution that passed both Houses on the same day:<ref name="british-history">{{cite web|url=http://www.british-history.ac.uk/report.asp?compid=26189 |title=House of Commons Journal Volume 8: 15 May 1660 |work=British History Online |access-date=28 July 2016}}</ref><ref name="british-history2">{{cite web|url=http://www.british-history.ac.uk/report.asp?compid=26317 |title=House of Commons Journal Volume 8: 4 December 1660 |work=British History Online |access-date=28 July 2016}}</ref><ref name="british-history3">{{cite web|url=http://www.british-history.ac.uk/report.asp?compid=26867 |title=Index: A–J |work=Journal of the House of Commons |at=Volume 8 |via=British History Online |access-date=28 July 2016}}</ref>

{{blockquote|That the Carcases of Oliver Cromwell, Henry Ireton, John Bradshaw, and Thomas Pride, whether buried in Westminster Abbey, or elsewhere, be, with all Expedition, taken up, and drawn upon a Hurdle to Tiburne, and there hanged up in their Coffins for some time; and after that buried under the said Gallows: And that James Norfolke Esquire, Serjeant at Arms attending the House of Commons, do take care that this Order be put in effectual Execution.}}

In 1685, when the [[James Scott, 1st Duke of Monmouth|Duke of Monmouth]] landed in [[West of England|West England]] and started [[Monmouth Rebellion|a rebellion]] in an effort to overthrow his uncle, the recently enthroned [[James II of England|James II]], Parliament passed a bill of attainder against him. After the [[Battle of Sedgemoor]], this made it possible for King James to have the captured Monmouth put summarily to death. Though legal, this was regarded by many as an arbitrary and ruthless act.

In 1753, the Jacobite leader [[Archibald Cameron of Lochiel]] was summarily put to death on the basis of a seven-year-old bill of attainder, rather than being put on trial for his recent subversive activities in Scotland. This aroused some protests in British public opinion at the time, including from people with no Jacobite sympathies.

The last use of attainder was in 1798 against [[Lord Edward FitzGerald]] for leading the [[Irish Rebellion of 1798]].

====The Great Act of Attainder====
In 1688, King [[James II of England]] (VII of Scotland), driven off by the ascent of [[William III of England|William III]] and [[Mary II of England|Mary II]] in the [[Glorious Revolution]], came to Ireland with the sole purpose of reclaiming his throne. After his arrival, the [[Parliament of Ireland]] assembled a list of names in 1689 of those reported to have been disloyal to him, eventually tallying between two and three thousand, in a bill of attainder. Those on the list were to report to Dublin for sentencing. One man, [[William Stewart, 1st Viscount Mountjoy|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 [[Drawing and quartering|drawn and quartered]].<ref>{{cite book |last=Macaulay |title=History of England from the Accession of James the Second |location=London |date=1855 |pages=216–220}}</ref> The parliament became known in the 1800s as the "[[Patriot Parliament]]".

Later defenders of the Patriot Parliament pointed out that the ensuing "[[Treaty of Limerick#The Williamite Settlement forfeitures|Williamite Settlement forfeitures]]" of the 1690s named an even larger number of [[Jacobitism|Jacobite]] suspects, most of whom had been attainted by 1699.<ref>{{cite book |first=T. O. |last=Davis |url=http://www.ucc.ie/celt/published/E800002-045/index.html |title=The Irish Parliament of James II |date=1843}}</ref>

====Private bills====
{{main article|Private bill}}
{{About|legislation that affects a specific person|legislation proposed by a single MP|Private member's bill|section=yes}}

In the [[Westminster system]] (and especially in the United Kingdom), a similar concept is covered by the term "private bill" (a bill which upon passage becomes a private Act). Note however that "private bill" is a general term referring to a proposal for legislation applying to a specific person; it is only a bill of attainder if it punishes them; private bills have been used in some Commonwealth countries to effect divorce.<ref>{{cite journal |first1=Paul |last1=Millar |first2=Sheldon |last2=Goldenberg |date=1998 |title=Explaining Child Custody Determinations in Canada |journal=Canadian Journal of Law and Society |volume=13 |issue=1 |pages=209–225|doi=10.1017/S0829320100005792 |s2cid=147117606}}</ref> Other traditional uses of private bills include [[chartered company|chartering corporations]], changing the charters of existing corporations, granting monopolies, approving of public infrastructure and seizure of property for those, as well as enclosure of commons and similar redistributions of property. Those types of private bills operate to take away private property and rights from certain individuals, but are usually not called "bill of pains and penalties". Unlike the latter, Acts appropriating property with compensation are constitutionally uncontroversial as a form of [[Eminent domain|compulsory purchase]].

The last United Kingdom bill called a "Pains and Penalties Bill" was the [[Pains and Penalties Bill 1820]] and was passed by the House of Lords in 1820, but not considered by the House of Commons; it sought to divorce [[Caroline of Brunswick|Queen Caroline]] from [[George IV|King George IV]] and adjust her titles and property accordingly, on grounds of her alleged adultery, as did many private bills dealing with divorces of private persons.

No bills of attainder have been passed since 1820 in the UK.<ref>{{cite book | first=Zechariah Jr. | last=Chafee |title=Three Human Rights in the Constitution of 1787 at 97 |publisher=University of Kansas Press |date=1956}}</ref> Attainder as such remained a legal consequence of convictions in courts of law, but this ceased to be a part of punishment in 1870.<ref name="british-civil-wars">{{cite web |url=http://www.british-civil-wars.co.uk/glossary/impeachment-attainder.htm |archive-url=https://web.archive.org/web/20040404002350/http://www.british-civil-wars.co.uk/glossary/impeachment-attainder.htm |url-status=dead |archive-date=4 April 2004 |title=British Civil Wars, Commonwealth & Protectorate 1638–1660: Impeachment & Attainder |author=David Plant |work=British Civil Wars Project |access-date=28 July 2016}}</ref>

====World War II====
Previously secret British [[War Cabinet#Second World War|War Cabinet]] papers released on 1 January 2006 have shown that, as early as December 1942, the War Cabinet had discussed their policy for the punishment of the leading [[Axis powers|Axis]] officials if captured. [[Prime Minister of the United Kingdom|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. He was dissuaded by [[Richard Law, 1st Baron Coleraine|Richard Law]], a junior minister at the Foreign Office, who pointed out that the [[United States]] and the [[Soviet Union]] still favoured trials.<ref>{{cite news |first=John |last=Crossland |url=https://www.thetimes.com/comment/register/article/churchill-execute-hitler-without-trial-7875nptrm3r |title=Churchill: execute Hitler without trial |work=[[The Sunday Times (UK)|The Sunday Times]] |date=1 January 2006 |access-date=12 February 2021}}</ref><ref>{{cite web |url=http://www.holocaustresearchproject.org/trials/nurnbergtrial.html |author=Holocaust Education and Archive Research Team |title=The 1st Nuremberg Trial |work=Holocaust Research Project}}</ref>

===United States===
==== Colonial era ====
Bills of attainder were used throughout the 18th century in England, and were applied to [[Crown colony|British colonies]] as well.  However, at least one American state, [[New York (state)|New York]], used a 1779 bill of attainder to confiscate the property of [[United Empire Loyalist|British loyalists]] (called Tories) as both a penalty for their political sympathies and means of funding the rebellion.  American dissatisfaction with British attainder laws resulted in their being prohibited in the U.S. Constitution ratified in 1787.

==== Constitutional bans ====
[[File:Constitution Pg2of4 AC-attainder.jpg|thumb|right|300px|Excerpt from Article One, Section 9 of the United States Constitution, prohibiting the passing of bills of attainder]]

The [[United States Constitution]] forbids legislative bills of attainder: in federal law under [[Article One of the United States Constitution#Section 9: Limits on Federal power|Article I, Section 9]], Clause 3 ("No Bill of Attainder or ex post facto Law shall be passed"), and in state law under [[Article One of the United States Constitution#Section 10: Limits on the States|Article I, Section 10]]. The fact that they were banned even under state law reflects the importance that the [[Constitutional Convention (United States)#Framers of the Constitution|Framers]] attached to this issue.

Within the U.S. Constitution, the clauses forbidding attainder laws serve two purposes. First, they reinforce the [[separation of powers]] by forbidding the legislature to perform [[judiciary|judicial]] or executive functions, as a bill of attainder necessarily does. Second, they embody the concept of [[due process]], which is reinforced by the [[Fifth Amendment to the United States Constitution|Fifth Amendment]] to the Constitution.

Every [[State constitution (United States)|state constitution]] also expressly forbids bills of attainder.<ref name=kenrt>{{cite web | title=Bills of Attainder: The Constitutional Implications of Congress Legislating Narrowly  | url=https://sgp.fas.org/crs/misc/R40826.pdf|author=Kenneth R. Thomas |website=fas.org| access-date=12 April 2024}}</ref><ref>{{Cite web|title=Bills of Attainder and Ex Post Facto Laws |url=https://law.justia.com/constitution/us/article-1/63-bills-of-attainder.html|website=Justia Law|language=en|access-date=2020-05-25}}</ref> For example, [[Wisconsin Constitution|Wisconsin's constitution]] Article I, Section 12 reads:

{{blockquote|No bill of attainder, [[ex post facto law]], nor any law impairing the obligation of contracts, shall ever be passed, and no conviction shall work corruption of blood or forfeiture of estate.}}

In contrast, the [[Constitution of Texas|Texas Constitution]] omits the clause that applies to heirs.<ref>Texas Constitution of 1876, Article 1 (entitled ''Bill of Rights''); Section 16, entitled ''Bills of Attainder; Ex Post Facto or Retroactive Laws: Impairing Obligation of Contracts'': "No bill of attainder, ex post facto law, retroactive law, or any law impairing the obligation of contracts, shall be made".</ref> It is unclear whether a law that called for heirs to be deprived of their estate would be constitutional in Texas.<ref>{{cite journal |first=Jacob |last=Reynolds |title=The Rule of Law and the Origins of the Bill of Attainder Clause |url=http://heinonline.org/HOL/Page?handle=hein.journals/stlr18&div=13&g_sent=1&collection=journals |journal=St. Thomas Law Review |year=2005 |volume=18 |issue=1 |page=177}}</ref>

==== Supreme Court cases ====
The [[U.S. Supreme Court]] has invalidated laws under the Attainder Clause on five occasions.<ref>{{cite journal |title=Nonattainder as a Liberty Interest |journal=Wisconsin Law Review |date=2010 |page=1229}}</ref>

Two of the Supreme Court's first decisions on the meaning of the bill of attainder clause came after the [[American Civil War]]. In ''[[Ex parte Garland]]'', 71 U.S. 333 (1866), the court struck down a federal law requiring attorneys practising in federal court to swear that they had not supported the rebellion. In ''[[:s:Cummings v. Missouri/Opinion _of the Court|Cummings v. Missouri]]'', 71 U.S. 277 (1867), the [[Missouri]] Constitution required anyone seeking a professional's license from the state to swear they had not supported the rebellion. The Supreme Court overturned the law and the constitutional provision, arguing that the people already admitted to practice were subject to penalty without judicial trial.<ref>[[John Hart Ely|Ely, John H.]] ''On Constitutional Ground''. Princeton, N.J.: Princeton University Press, 1996, p. 98.</ref> The lack of judicial trial was the critical affront to the Constitution, the Court said.<ref>Nabers, Deak. ''Victory of Law: The Fourteenth Amendment, the Civil War, and American Literature, 1852–1867''. Baltimore, Md.: Johns Hopkins University Press, 2006, p. 30.</ref>

Two decades later, however, the Court upheld similar laws. In ''[[Hawker v. New York]]'', 170 U.S. 189 (1898), a state law barred convicted felons from practising medicine. In ''[[Dent v. West Virginia]]'', 129 U.S. 114 (1889), a [[West Virginia]] state law imposed a new requirement that practising physicians had to have graduated from a licensed medical school or they would be forced to surrender their license. The Court upheld both laws because, it said, the laws were narrowly tailored to focus on an individual's qualifications to practice medicine.<ref name="Johnson">Johnson, Theodore. ''The Second Amendment Controversy{{snd}}Explained.'' 2d ed. Indianapolis: iUniverse, 2002, p. 334.</ref> That was not true in ''Garland'' or ''Cummings''.<ref name="Johnson" /><ref name="Beyond481483">"Beyond Process: A Substantive Rationale for the Bill of Attainder Clause". ''Virginia Law Review''. 70:475 (April 1984), pp. 481-483.</ref>

The Court changed its "bill of attainder test" in 1946. In ''[[United States v. Lovett]]'', 328 U.S. 303 (1946), the Court confronted a federal law that named three people as subversive and excluded them from federal employment. Previously, the Court had held that lack of judicial trial and the narrow way in which the law rationally achieved its goals were the only tests of a bill of attainder. But the ''Lovett'' Court said that a bill of attainder 1) specifically identified the people to be punished; 2) imposed punishment; and 3) did so without benefit of judicial trial.<ref>Cushman, Robert Fairchild and [[Susan Koniak|Koniak, Susan P.]] ''Cases in Civil Liberties''. Englewood Cliffs, N.J.: Prentice Hall, 1994, p. 4.</ref><ref>''The Heritage Guide to the Constitution''. Washington, D.C.: Heritage Foundation, 2005, p. 155.</ref> As all three prongs of the bill of attainder test were met in ''Lovett'', the court held that a Congressional statute that bars particular individuals from government employment qualifies as punishment prohibited by the bill of attainder clause.

The [[Taft–Hartley Act]] (enacted in 1947) sought to ban [[strike action|political strikes]] by [[Communism|Communist]]-dominated [[trade union|labour unions]] by requiring all elected labour leaders to take an oath that they were not and had never been members of the [[Communist Party USA]], and that they did not advocate violent overthrow of the U.S. government. It also made it a crime for members of the Communist Party to serve on executive boards of labour unions. In ''[[American Communications Association v. Douds]]'', 339 U.S. 382 (1950), the Supreme Court had said that the requirement for the oath was not a bill of attainder because: 1) anyone could avoid punishment by disavowing the Communist Party, and 2) it focused on a future act (overthrow of the government) and not a past one.<ref name="Welsh">Welsh, Jane. "The Bill of Attainder Clause: An Unqualified Guarantee of Process". ''Brooklyn Law Review''. 50:77 (Fall 1983), p. 97.</ref> Reflecting current fears, the Court commented in ''Douds'' on approving the specific focus on Communists by noting what a threat communism was.<ref>Wiecek, William M. ''History of the Supreme Court of the United States: The Birth of the Modern Constitution: The United States Supreme Court, 1941–1953''. New York: Macmillan, 2006, p. 548.</ref> The Court had added an "escape clause" test to determining whether a law was a bill of attainder.<ref name="Welsh" />

In ''[[United States v. Brown]]'', 381 U.S. 437 (1965), the Court invalidated the section of the statute that criminalized a former communist serving on a union's executive board. Clearly, the Act had focused on past behaviour and had specified a specific class of people to be punished.<ref>"Beyond Process: A Substantive Rationale for the Bill of Attainder Clause", ''Virginia Law Review'', April 1984, p. 485.</ref> Many legal scholars assumed that the ''Brown'' case effectively, if not explicitly, overruled ''Douds''.<ref>Rabinowitz, Victor. ''Unrepentant Leftist: A Lawyer's Memoir''. Urbana, Illinois: University of Illinois Press, 1996, p. 56.</ref> The Court did not apply the punishment prong of the ''Douds'' test, leaving legal scholars confused as to whether the Court still intended it to apply.<ref>Welsh, "The Bill of Attainder Clause: An Unqualified Guarantee of Process", ''Brooklyn Law Review'', Fall 1983, p. 98.</ref>

The Supreme Court emphasized the narrowness and rationality of bills of attainder in ''[[Nixon v. Administrator of General Services]]'', 433 U.S. 425 (1977). During the [[Watergate scandal]], in 1974 Congress passed the [[Presidential Recordings and Materials Preservation Act]], which required the [[General Services Administration]] to confiscate former President [[Richard Nixon]]'s presidential papers to prevent their destruction, screen out those which contained national security and other issues which might prevent their publication, and release the remainder of the papers to the public as fast as possible.<ref>Ripley, Anthony. "U.S. Judge Rules Nixon Documents Belong to Nation", ''The New York Times'', 1 February 1975.</ref> The Supreme Court upheld the law in ''Nixon'', arguing that specificity alone did not invalidate the act because the President constituted a "class of one".<ref name="Stark">Stark, Jack. ''Prohibited Government Acts: A Reference Guide to the United States Constitution''. Westport, Connecticut: Praeger, 2002, pp. 79–80.</ref> Thus, specificity was constitutional if it was rationally related to the class identified.<ref name="Stark" /> The Court modified its punishment test, concluding that only those laws which historically offended the bill of attainder clause were invalid.<ref>Stark, ''Prohibited Government Acts: A Reference Guide to the United States Constitution'', 2002, p. 74.</ref> The Court also found it significant that Nixon was compensated for the loss of his papers, which alleviated the punishment.<ref name="Stark75">Stark, ''Prohibited Government Acts: A Reference Guide to the United States Constitution'', 2002, p. 75.</ref> The Court modified the punishment prong by holding that punishment could survive scrutiny if rationally related to other, nonpunitive goals.<ref name="Stark75" /> Finally, the Court concluded that the legislation must not be intended to punish; legislation enacted for otherwise legitimate purposes could be saved so long as punishment was a side-effect rather than the main purpose of the law.<ref>Stark, ''Prohibited Government Acts: A Reference Guide to the United States Constitution'', 2002, p. 30.</ref>

==== Lower court cases ====
A number of cases which raised the bill of attainder issue did not reach or have not reached the Supreme Court, but were considered by lower courts.

In 1990, in the wake of the [[Exxon Valdez oil spill]], Congress enacted the [[Oil Pollution Act of 1990|Oil Pollution Act]] to consolidate various oil spill and oil pollution statutes into a single unified law, and to provide for a statutory regime for handling oil spill cleanup. This law was challenged as a bill of attainder by the shipping division of [[ExxonMobil]].<ref>''SeaRiver Maritime Fin. Holdings, Inc. v. Pena'', 952 F.Supp. 9, D.D.C. 199.</ref><ref>Carringan, Alison C. "The Bill of Attainder Clause: A New Weapon to Challenge the Oil Pollution Act of 1990", ''Boston College Environmental Affairs Law Review'' 28:119 (2000).</ref>

In 2003, the [[United States Court of Appeals for the District of Columbia Circuit]] struck down the [[Elizabeth Morgan Act]] as a bill of attainder.<ref>''Doris R. Foretich, et al. v. United States'', 351 F.3d 1198 (D.C.App. 2003); Leonning, Carol D. "Appeals Court Rules Against Morgan Law", ''Washington Post'' 17 December 2003.</ref>

After the [[United States House of Representatives]] passed a resolution in late 2009 barring the community organising group [[Association of Community Organizations for Reform Now]] (ACORN) from receiving federal funding, the group sued the U.S. government.<ref>{{cite news |last=Fahim |first=Kareem |url=https://www.nytimes.com/2009/11/13/nyregion/13acorn.html |title=Acorn Sues Over Funding Vote in House |work=The New York Times |date=12 November 2009 |access-date=14 November 2010}}</ref> Another, broader bill, the Defund ACORN Act, was enacted by Congress later that year. In March 2010, a [[United States district court|federal district court]] declared the funding ban an unconstitutional bill of attainder.<ref>Farrell, Michael B. "Funding Gone, Scandal-Plagued ACORN to Disband". ''The Christian Science Monitor'', 23 March 2010.</ref> On 13 August 2010, the [[United States Court of Appeals for the Second Circuit]] reversed and remanded on the grounds that only 10 percent of ACORN's funding was federal and that did not constitute "punishment".<ref>"Federal Court Rules Against Acorn". [[Associated Press]]: 14 August 2010.</ref><ref>{{cite journal |title=ACORN v. United States |url=http://harvardlawreview.org/2011/01/second-circuit-holds-that-law-barring-acorn-from-receiving-federal-funding-is-not-a-bill-of-attainder-ae-acorn-v-united-states-618-f-3d-125-2d-cir-2010/ |journal=Harvard Law Review |access-date = 23 July 2015 |date=20 January 2011}}</ref>

==== Possible cases ====
There is argument over whether the [[Palm Sunday Compromise]] in the [[Terri Schiavo case]] was a bill of attainder.<ref>Calabresi, Steven G. "The Terri Schiavo Case: In Defense of the Special Law Enacted by Congress and President Bush", ''Northwestern University Law Review'' 100:1 (2006).</ref><ref>McGough, Michael. "Terri's Law: Is It Constitutional?" ''Pittsburgh Post-Gazette'', 22 March 2005.</ref><ref>Marks, Jr., Thomas C. "Terri Schiavo and the Law", ''Albany Law Review'' 67:843 (2004).</ref>

Some analysts considered a proposed Congressional bill to confiscate 90 percent of the bonus money paid to executives at federally rescued investment bank [[American International Group]] a bill of attainder, although disagreement exists on the issue. The bill was not passed by Congress.<ref>Jones, Ashby. "Would an AIG-Bonus Tax Pass Constitutional Muster? (A Tribe Calls 'Yes!')". ''The Wall Street Journal'', 18 March 2009.</ref><ref>{{cite news |last=Clarke |first=Connor |title=No Bill of Attainder... Shall Be Passed |work=The Atlantic |date=16 March 2009}}</ref>

In 2009, the city of [[Portland, Oregon]]'s attempt to prosecute more severely those on a "secret list" of 350 individuals deemed by police to have committed "liveability crimes" in certain neighbourhoods was challenged as an unconstitutional bill of attainder.<ref>{{Cite news |url=http://www.portlandmercury.com/portland/secret-list-on-trial/Content?oid=1055123 |title=Secret List on Trial |work=Portland Mercury}}</ref><ref>{{Cite news |work=The Oregonian/OregonLive|first=Aimee |last=Green |date=2009-04-08|title=Judge declines to rule on constitutionality of Portland Police Bureau's secret list |url=https://www.oregonlive.com/news/2009/04/judge_declines_to_rule_on_cons.html |access-date=2020-08-21 |language=en}}</ref>

In 2011, the House voted to defund [[Planned Parenthood]]. Democratic Representative [[Jerry Nadler]] called that vote a bill of attainder, saying it was unconstitutional as such because the legislation was targeting a specific group.<ref>{{cite news |title = House votes to defund Planned Parenthood |url = http://www.politico.com/news/stories/0211/49830.html|access-date = 23 July 2015 |first1 = David |last1=Nather |first2=Kate|last2 = Nocera|website = [[Politico]] |date = 18 February 2011}}</ref>

In January 2017, the House reinstated the [[Holman Rule]], a procedural rule that enables lawmakers to reduce the pay of an individual federal worker down to $1.<ref>{{cite news |url=https://www.thenation.com/article/the-holman-rule-once-allowed-congress-to-purge-leftists-from-government-agencies-now-its-back/ |title=The Holman Rule Once Allowed Congress to Purge Leftists From Government Agencies{{snd}}Now It's Back}}</ref> It was once again removed at the beginning of the [[116th United States Congress]] in January 2019, after Democrats had taken control of the chamber.<ref>{{Cite news |url=https://www.federaltimes.com/federal-oversight/congress/2019/01/02/house-democrats-plan-to-dismantle-fed-targeting-rule/|title=House passes package dismantling fed-targeting rule|last=Bur|first=Jessie|date=2019-01-03|website=Federal Times|language=en-US|access-date=2019-01-04}}</ref>

On November 5, 2019, the Supreme Court heard oral arguments in ''Allen v. Cooper''.<ref>{{cite news |last1=Murphy |first1=Brian |title=How Blackbeard's ship and a diver with an 'iron hand' ended up at the Supreme Court |url=https://www.newsobserver.com/news/politics-government/article237019034.html |access-date=16 November 2019 |publisher=Charlotte Observer |date=5 November 2019}}</ref><ref>{{cite news |last1=Wolf |first1=Richard |title=Aarrr, matey! Supreme Court justices frown on state's public display of pirate ship's salvage operation |url=https://www.usatoday.com/story/news/politics/2019/11/05/legendary-pirate-blackbeards-shipwreck-sails-supreme-court/4166346002/ |access-date=27 December 2019|work=USA Today |date=5 November 2019}}</ref><ref>{{cite news |last1=Livni |first1=Ephrat |title=A Supreme Court piracy case involving Blackbeard proves truth is stranger than fiction |url=https://qz.com/1742690/scotus-piracy-case-involving-blackbeard-is-stranger-than-fiction/ |access-date=27 December 2019 |publisher=Quartz |date=5 November 2019}}</ref><ref>{{cite news |last1=Woolverton |first1=Paul |title=Supreme Court justices skeptical in Blackbeard pirate ship case from Fayetteville |url=https://www.fayobserver.com/news/20191105/supreme-court-justices-skeptical-in-blackbeard-pirate-ship-case-from-fayetteville |access-date=27 December 2019 |publisher=Fayetteville Observer |date=5 November 2019}}</ref> On March 23, 2020, the Supreme Court ruled in favor of North Carolina and struck down the [[Copyright Remedy Clarification Act]], which Congress passed in 1989 to attempt to curb such infringements of copyright by states, in ''[[Allen v. Cooper]]''.<ref>{{cite web |title=N.C. Gen Stat §121-25 |url=https://www.ncleg.gov/EnactedLegislation/Statutes/PDF/BySection/Chapter_121/GS_121-25.pdf |website=NCleg.gov |publisher=North Carolina |access-date=19 June 2020}}</ref><ref>{{cite news |last1=Adler |first1=Adam |title=Blackbeard Just Broke Copyright Law, and Now States Are the Pirates |url=https://www.escapistmagazine.com/v2/blackbeard-copyright-law-states-rights-north-carolina-supreme-court/ |access-date=19 June 2020 |publisher=The Escapist |date=29 March 2020}}</ref><ref>{{cite court|litigants=Allen v. Cooper|url=https://www.supremecourt.gov/opinions/19pdf/18-877_dc8f.pdf}}</ref>

After the ruling [[Nautilus Productions]], the plaintiff in ''Allen v. Cooper'', filed a motion for reconsideration in the United States District Court for the Eastern District of North Carolina.<ref>{{cite news |last1=McKlveen |first1=Gina |title=A North Carolina Filmmaker Continues to Challenge State Sovereign Immunity |url=https://ial.uk.com/a-north-carolina-filmmaker-continues-to-challenge-state-sovereign-immunity/ |access-date=24 March 2023 |publisher=Institute of Art & Law |date=28 October 2022}}</ref> On August 18, 2021, Judge [[Terrence Boyle]] granted the motion for reconsideration which North Carolina promptly appealed to the United States Court of Appeals for the Fourth Circuit.<ref>{{cite web |title=Reconsideration Granted |url=https://www.nautilusproductions.com/wp-content/uploads/2021/08/Doc.118.Reconsideration-granted.pdf |website=Nautilus Productions |access-date=5 April 2023}}</ref> The 4th Circuit denied the state's motion on October 14, 2022.<ref>{{cite web |title=4th Circuit Recon |url=http://www.nautilusproductions.com/wp-content/uploads/2023/04/4th-Circuit-Recon.pdf |website=Nautilus Productions |access-date=5 April 2023}}</ref> Nautilus then filed their second amended complaint on February 8, 2023, alleging 5th and 14th Amendment violations of Nautilus' constitutional rights, additional copyright violations, and claiming that North Carolina's "[[Blackbeard's Law]]", N.C. Gen Stat §121-25(b),<ref>{{cite web |title=§ 121-25. License to conduct exploration, recovery or salvage operations |url=https://www.ncleg.gov/EnactedLegislation/Statutes/PDF/BySection/Chapter_121/GS_121-25.pdf |website=ncleg.gov |publisher=North Carolina |access-date=25 May 2023}}</ref> represents a Bill of Attainder.<ref>{{cite web |title=Plaintiffs' Second Amended Complaint |url=https://ipwatchdog.com/wp-content/uploads/2023/02/134-main.pdf |website=IPWatchdog |access-date=24 March 2023}}</ref><ref>{{cite news |last1=Barnes |first1=Greg |title=Fayetteville's Blackbeard shipwreck filmmaker fires back in new court case |url=https://www.cityviewnc.com/stories/fayettevilles-blackbeard-shipwreck-filmmaker-fires-back-in-new-court-case,29512 |access-date=24 March 2023 |publisher=CityView |date=14 February 2023}}</ref> Eight years after the passage of "Blackbeard's Law", on June 30, 2023, North Carolina Gov. Roy Cooper signed a bill repealing the law.<ref>{{cite web |title=An Act to Make Various Changes to the Statutes Governing the Department of Natural and Cultural Resources, As Recommended by the Department |url=https://www.ncleg.gov/Sessions/2023/Bills/House/PDF/H168v6.pdf |website=ncleg.gov |publisher=North Carolina |access-date=21 July 2023}}</ref>

President [[Donald Trump]]'s [[Targeting law firms and lawyers under the second Trump administration|executive orders targeting specific law firms]], such as the executive order on March 6, 2025 entitled "Addressing Risks from [[Perkins Coie]] LLP",<ref>{{cite web | url=https://www.whitehouse.gov/presidential-actions/2025/03/addressing-risks-from-perkins-coie-llp/ | title=Addressing Risks from Perkins Coie LLP | date=6 March 2025 }}</ref> have been criticized as being essentially bills of attainder.<ref>{{cite web | url=https://www.wsj.com/opinion/trump-bills-of-attainder-target-law-firms-a15bf632 | title=Opinion &#124; Trump Bills of Attainder Target Law Firms }}</ref> Perkins Coie's suit against the [[United States Department of Justice|Department of Justice]] argues that the order "shares all the essential features of a bill of attainder."<ref>https://cdn.prod.website-files.com/67cf71f1f27ef68a8f5c5c70/67d098cae5905f455b133083_PerkinsCoieFiling1.pdf#page=43.12</ref><ref>https://www.courtlistener.com/docket/69725919/perkins-coie-llp-v-us-department-of-justice/</ref>

==See also==
* [[Ex post facto law|''Ex post facto'' law]], which retroactively changes the legal consequences of actions committed prior to its enactment
* ''[[Lettres de cachet]]'', used by French kings to have people imprisoned without trial
* [[Spot zoning]], the arbitrary application or removal of zoning restrictions from a specific parcel of land

==Notes==
{{notelist}}

==References==
{{reflist|30em}}

==External links==
{{Wikiversity}}

===British tradition===
* [https://web.archive.org/web/20040404002350/http://www.british-civil-wars.co.uk/glossary/impeachment-attainder.htm British Impeachment and Attainder]
* [https://www.telegraph.co.uk/finance/newsbysector/banksandfinance/4902361/Fred-Goodwin-must-surrender-pension-Harriet-Harman-insists.html Fred-Goodwin must surrender pension, Harriet Harman insists]

===American tradition===
* [http://www.constitution.org/eng/conpur029.htm The Act for the attainder of Thomas Wentworth, 1st Earl of Strafford]
* [http://caselaw.lp.findlaw.com/data/constitution/article01/47.html Extended annotation at FindLaw]
* Mention of Attainder in the Federalist Papers by [[James Madison]] in [https://guides.loc.gov/federalist-papers/text-41-50 Federalist 43], [https://guides.loc.gov/federalist-papers/text-41-50 Federalist 44], and by [[Alexander Hamilton]] in [https://guides.loc.gov/federalist-papers/text-81-85 Federalist 84].
* {{cite journal |last1=Manweller |first1=Mathew |title=Can a Reparations Package Be a Bill of Attainder? |journal=The Independent Review |date=Spring 2002 |volume=6 |issue=4 |url=http://ncobra.org/resources/pdf/Reparation%20and%20Bill.pdf}}
* {{cite web |last1=Thomas |first1=Kenneth R. |title=Bills of Attainder: The Constitutional Implications of Congress Legislating Narrowly |url=https://sgp.fas.org/crs/misc/R40826.pdf |publisher=Congressional Research Service |date=26 August 2014}}

{{Criminal procedure}}

{{DEFAULTSORT:Bill Of Attainder}}
[[Category:Common law]]
[[Category:English legal terminology]]
[[Category:Legal history]]