| − | The functional test is generally the most important of the three tests for punishment. This test considers “whether the law under challenge, viewed in terms of the type and severity of burdens imposed, reasonably can be said to further nonpunitive legislative purposes.” The functional test serves to prevent formalistic evasion of the Bill of Attainder Clause, recognizing that there may be measures that were not historically recognized as punishments that are nonetheless impermissibly punitive. But at the same time, the U.S. Court of Appeals for the Fifth Circuit has stated that even some laws imposing penalties that were historically considered punishments may not violate the Bill of Attainder Clause if the “legislation has a legitimately nonpunitive function, purpose, and structure.” The functional test is fact-specific. It first considers whether the statute has a non-punitive purpose. Courts apply a level of scrutiny somewhat more stringent than the most deferential rational basis review, requiring what the D.C. Circuit has called “not some conceivable nonpunitive purpose, but rather an actual nonpunitive purpose.” If such a purpose exists and the challenged law reasonably serves that purpose, courts generally find that the law is not punitive. For instance, in Nixon, the Supreme Court held that the Presidential Recordings and Materials Preservation Act did not function as punishment because it Congressional Research Service 4 served the nonpunitive purposes of retaining materials relevant to the prosecution of the Watergate breakin and preserving records with historical significance. In Kaspersky, the D.C. Circuit held that a statute prohibiting the U.S. government from using products or services from Kaspersky Lab served a nonpunitive interest in promoting “the security of the federal government’s information systems.” In SBC Communications, Inc. v. Federal Communications Commission, the Fifth Circuit held that a statute barring specific telecommunications companies from engaging in certain business activities served the nonpunitive purpose of “attempting to ensure fair competition in the [telecommunications] markets.” If a nonpunitive purpose is evident, the court considers whether the challenged legislation is over- or underinclusive in view of its aims and whether less burdensome alternatives could have accomplished the same goals. “A grave imbalance or disproportion between the burden and the purported nonpunitive purpose suggests punitiveness, even where the statute bears some minimal relation to nonpunitive ends.” Thus, in Foretich, the D.C. Circuit held that a statute altering the visitation rights of a father accused of sexually abusing his child constituted a bill of attainder, in part because of the imbalance between the burden the statute imposed and the statute’s “implausible nonpunitive purposes.” And in Consolidated Edison Co. v. Pataki, the Second Circuit concluded that legislation barring a company from recovering certain costs from customers, on the stated basis that the company had “failed to exercise reasonable care” in its business, functioned as punishment because the court could “discern no wholly non-punitive purpose to justify” the law. The Motivational Test The third and final test for punishment considers whether the legislature that enacted a challenged law was motivated by an intent to punish the targeted person(s). Courts applying this test examine the bill’s text and legislative history to determine whether lawmakers expressed punitive intent. The motivational test is not usually dispositive. The Nixon Court opined that a law may qualify as a bill of attainder even without a “formal legislative announcement of moral blameworthiness or punishment.” Moreover, if the historical and functional tests are not satisfied, the motivational test standing alone does not compel a finding that a law is punitive unless the reviewing court finds “unmistakable evidence of punitive intent.” However, a significant amount of punitive language in congressional documents or legislative debate may support a finding that a law imposes punishment. For instance, committee reports on the legislation at issue in Lovett characterized the affected individuals as “guilty of having engaged in ‘subversive activity’” and “unfit” for government service. In Foretich, the D.C. Circuit cited statements of multiple legislators characterizing the child at the center of the custody dispute as a “victim” and the legislation as “deal[ing] with the inadequacies of the court system” and “bringing justice” to her family. By contrast, isolated statements by a few lawmakers generally do not suffice to show a legislative intent to punish. In Kaspersky, the D.C. Circuit considered one Senator’s statements that the “case against Kaspersky Lab [wa]s overwhelming” and that “strong ties between Kaspersky Lab and the Kremlin [we]re alarming and well-documented.” The court concluded that “even if [the Senator’s] statements did reveal a personal desire to punish Kaspersky, the company cite[d] no corroborating evidence indicating that other members of Congress shared her supposedly punitive motivations.” In ACORN, an organization that had been excluded from receiving federal funding cited statements of “nearly ten members of the House of Representatives” labeling the organization as corrupt and accusing it of specific offenses. The Second Circuit concluded, “Despite the evidence of punitive intent on the part of some members of Congress, unlike in Lovett, there is no congressional finding of guilt in this case.” The court thus held that the statements were “insufficient to establish—by themselves—the clearest proof of punitive intent necessary for a bill of attainder.”}} | + | The functional test is generally the most important of the three tests for punishment. This test considers “whether the law under challenge, viewed in terms of the type and severity of burdens imposed, reasonably can be said to further nonpunitive legislative purposes.” The functional test serves to prevent formalistic evasion of the Bill of Attainder Clause, recognizing that there may be measures that were not historically recognized as punishments that are nonetheless impermissibly punitive. But at the same time, the U.S. Court of Appeals for the Fifth Circuit has stated that even some laws imposing penalties that were historically considered punishments may not violate the Bill of Attainder Clause if the “legislation has a legitimately nonpunitive function, purpose, and structure.” |
| | + | The functional test is fact-specific. It first considers whether the statute has a non-punitive purpose. Courts apply a level of scrutiny somewhat more stringent than the most deferential rational basis review, requiring what the D.C. Circuit has called “not some conceivable nonpunitive purpose, but rather an actual nonpunitive purpose.” If such a purpose exists and the challenged law reasonably serves that purpose, courts generally find that the law is not punitive. For instance, in Nixon, the Supreme Court held that the Presidential Recordings and Materials Preservation Act did not function as punishment because it served the nonpunitive purposes of retaining materials relevant to the prosecution of the Watergate breakin and preserving records with historical significance. In Kaspersky, the D.C. Circuit held that a statute prohibiting the U.S. government from using products or services from Kaspersky Lab served a nonpunitive interest in promoting “the security of the federal government’s information systems.” In SBC Communications, Inc. v. Federal Communications Commission, the Fifth Circuit held that a statute barring specific telecommunications companies from engaging in certain business activities served the nonpunitive purpose of “attempting to ensure fair competition in the [telecommunications] markets.” |
| | + | If a nonpunitive purpose is evident, the court considers whether the challenged legislation is over- or underinclusive in view of its aims and whether less burdensome alternatives could have accomplished the same goals. “A grave imbalance or disproportion between the burden and the purported nonpunitive purpose suggests punitiveness, even where the statute bears some minimal relation to nonpunitive ends.” Thus, in Foretich, the D.C. Circuit held that a statute altering the visitation rights of a father accused of sexually abusing his child constituted a bill of attainder, in part because of the imbalance between the burden the statute imposed and the statute’s “implausible nonpunitive purposes.” And in Consolidated Edison Co. v. Pataki, the Second Circuit concluded that legislation barring a company from recovering certain costs from customers, on the stated basis that the company had “failed to exercise reasonable care” in its business, functioned as punishment because the court could “discern no wholly non-punitive purpose to justify” the law. |
| | + | The third and final test for punishment considers whether the legislature that enacted a challenged law was motivated by an intent to punish the targeted person(s). Courts applying this test examine the bill’s text and legislative history to determine whether lawmakers expressed punitive intent. The motivational test is not usually dispositive. The Nixon Court opined that a law may qualify as a bill of attainder even without a “formal legislative announcement of moral blameworthiness or punishment.” Moreover, if the historical and functional tests are not satisfied, the motivational test standing alone does not compel a finding that a law is punitive unless the reviewing court finds “unmistakable evidence of punitive intent.” However, a significant amount of punitive language in congressional documents or legislative debate may support a finding that a law imposes punishment. For instance, committee reports on the legislation at issue in Lovett characterized the affected individuals as “guilty of having engaged in ‘subversive activity’” and “unfit” for government service. In Foretich, the D.C. Circuit cited statements of multiple legislators characterizing the child at the center of the custody dispute as a “victim” and the legislation as “deal[ing] with the inadequacies of the court system” and “bringing justice” to her family. By contrast, isolated statements by a few lawmakers generally do not suffice to show a legislative intent to punish. In Kaspersky, the D.C. Circuit considered one Senator’s statements that the “case against Kaspersky Lab [wa]s overwhelming” and that “strong ties between Kaspersky Lab and the Kremlin [we]re alarming and well-documented.” The court concluded that “even if [the Senator’s] statements did reveal a personal desire to punish Kaspersky, the company cite[d] no corroborating evidence indicating that other members of Congress shared her supposedly punitive motivations.” In ACORN, an organization that had been excluded from receiving federal funding cited statements of “nearly ten members of the House of Representatives” labeling the organization as corrupt and accusing it of specific offenses. The Second Circuit concluded, “Despite the evidence of punitive intent on the part of some members of Congress, unlike in Lovett, there is no congressional finding of guilt in this case.” The court thus held that the statements were “insufficient to establish—by themselves—the clearest proof of punitive intent necessary for a bill of attainder.”}} |