Of Due Process and Bills of Attainder

by Edwin D. Reilly, Jr.

for the Sunday Gazette

“The Constitution prohibits both the state and the national government from enacting either [an ex post facto law or a bill of attainder]. The clauses [that do so] refer to rather precise legal terms that had a meaning under English law at the time the Constitution was adopted. A bill of attainder is a legislative act that singles out one or more persons and imposes punishment on them without benefit of trial.”

                                                        –William H. Rehnquist, “The Supreme Court”

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, …. nor be deprived of life, liberty, or property, without due process of law…”

                                                       Fifth Amendment, US Constitution

 You can see where I am going with this. On Thursday, August 23, the Schenectady County Legislature repealed only one of two acts which, although intended to offer a certain degree of protection against repeat instances of child abuse, are of very dubious constitutionality. The one repealed certainly was; a person who has already established a legal residence cannot, ex post facto (after the fact), be forced to move. Astoundingly, there were two dissenting votes.

The second act, intended now to affect only newly arriving level 2 and 3 registered sexual offenders, those convicted of the most serious crimes, declares that such persons may not live closer than 2,000 feet (about 0.38 mile) to a school, park, public pool, or any place where children congregate. Why anyone thinks that a perfectly legal 8-minute walk to cover that distance from a legal residence would deter a determined pedophile is beyond me, although it is twice the distance that certain neighboring counties have adopted. But this will cause a certain degree of retaliatory mischief and hence cries out for uniform statewide action.

Also on August 23, our Legislature acted as if they could pass on to our county’s towns a right that I doubt they have themselves, namely, the ability to set a local distance limitation. Three thousand feet? A mile or two? Come now. But at least it set up a committee of a few citizens and (all!) legislators to study the matter further.

Even our state must tread lightly on the Constitution, which frowns on deprivations of liberty without “due process.” Now, I am not an attorney or even a constitutional scholar like Senator Robert C. Byrd (D, WV), who carries a copy with him at all times, probably a waterproof one that he can consult in aqueous environments. But the issues here are not ambiguous ones, like those the Supreme Court occasionally chooses to wrestle with. The hallowed document is crystal clear that only a duly authorized judge may, after a trial and conviction (or plea bargain) that is the essence of due process, pronounce a sentence that involves a deprivation of liberty. Examples would be jail time, house arrest, restriction of association or travel, or anything that deprives the convict of the right to come and go to any place of his or her choosing at any time. Even such judges get exactly one crack at it. They may not, years, months, or even days later impose a harsher sentence, and no legislature may do so either.

Here is where legislators must be very careful. As Rehnquist wrote, a bill of attainder (where “attainder” means “taintedness”) is an act of a legislature declaring a person or group of persons guilty of some offense and punishing them without benefit of a trial. The Constitution forbids both the federal and state governments (and their subsidiaries, of course) to enact bills of attainder. So if a deprivation of liberty such as limiting where a person may live is indeed a “punishment,” then no legislature can issue a blanket edict imposing such; it would have to somehow file charges against registrants, one by one, and have them adjudicated. But the charge would have to be a new one, not the original one. Too late. Wrong authority, if indeed there is a right one.

But, Shakespeare aside, some of my best friends are living lawyers, and they say “But Ed, you forget that there is a Supreme Court-sanctioned concept called “civil (rather than criminal) confinement,” and such deprivations of liberty are not considered “punishments.” But how could that be? Has the Court ruled that black is white, that up is down, that the Red Sox nation loves the Yankees? So I consulted the oracle called Google, which never fails to deliver a big hit, and in this case it was a walk-off home run. See  www.bu.edu/law/central/jd/organizations/journals/bulr/documents/MORGAN.pdfread, for what Allison Morgan, a law student at Boston University, wrote earlier this year:

 “The confinement of anyone in America for reasons other than incarceration for a criminal act has always created difficult dilemmas. Historically, the courts have condoned civil commitment laws when based on proof that a person is  dangerous to himself or others and

suffering from a mental illness, disease, or defect. The Supreme Court reinforced this general policy in Foucha vs. Louisiana (1992), holding that "mere" dangerousness without mental illness cannot justify civil commitment when a person has served out the sentence imposed under the criminal law as punishment for wrongdoing.”

That “and” in Ms. Morgan’s second sentence is vitally important. Even though all sexual offenders were at least temporarily evil, they are not necessarily mentally ill in a clinical sense. Thus the due process in civil confinement must involve not only a magistrate, but also competent medical authorities who know insanity when they see it and, to judge the likelihood of continued danger to themselves or others, psychiatrists so good that they can foretell the future. Formidable problems, both.

Actually, New York State does have a civil confinement law, a fairly recent one advocated and signed by Governor Spitzer, one that does grant due process. It should be given time  to work without interference from municipal legislatures. But what our state legislature could and should do—and this is well precedented—is to establish sentencing guidelines for judges that sanction longer jail sentences for pedophiles, or suggest that after jail time, additional periods be spent wearing wirelessly monitored GPS devices so that law enforcement knows where sexual offenders are at all times. The technology is there to do this. But, punishment or not, such a complex sentence can be rendered only upon first judgment. No mulligans.


Edwin D. Reilly, Jr. lives in Niskayuna and is a regular contributor to the Sunday Gazette opinion page.