Extradition of McMullen, Matter of, s. 653
| Decision Date | 24 March 1993 |
| Docket Number | D,654,Nos. 653,s. 653 |
| Citation | 989 F.2d 603 |
| Parties | In the Matter of the Request for EXTRADITION OF Peter Gabriel John McMULLEN by the Government of the United Kingdom of Great Britain and Northern Ireland. Peter G.J. McMULLEN, Petitioner-Appellee-Cross-Appellant, v. UNITED STATES of America, Respondent-Appellant-Cross-Appellee. ocket 91-2402, 91-2420. |
| Court | U.S. Court of Appeals — Second Circuit |
Diogenes P. Kekatos, Asst. U.S. Atty. for the S.D. of N.Y., New York City (Otto G. Obermaier, U.S. Atty. for the S.D. of N.Y., Marla Alhadeff and Richard W. Mark, Asst. U.S. Attys. for the S.D. of N.Y., of counsel), for respondent-appellant-cross-appellee.
Ian Weinstein, Fordham University School of Law, New York City (Henriette D. Hoffman, The Legal Aid Society Federal Defender Services, New York City, Michael D. Schissel, Arnold & Porter, Washington, DC, of counsel), for petitioner-appellee-cross-appellant.
Before: MESKILL, Chief Judge, TIMBERS, NEWMAN, KEARSE, CARDAMONE, WINTER, PRATT, MINER, ALTIMARI, MAHONEY, WALKER and McLAUGHLIN, Circuit Judges.
MINER, Circuit Judge, joined by MESKILL, Chief Judge, and NEWMAN, KEARSE, CARDAMONE, WINTER, PRATT, MAHONEY, WALKER and McLAUGHLIN, Circuit Judges:
I. INTRODUCTORY STATEMENT
Respondent - appellant - cross - appellee United States of America appeals from a judgment entered in the United States District Court for the Southern District of New York (Ward, J.) granting the habeas corpus petition of petitioner-appellee-cross-appellant Peter G.J. McMullen. The district court granted the petition after finding that the Supplementary Extradition Treaty between the United States and the United Kingdom of Great Britain and Northern Ireland, under which McMullen was detained, violates the constitutional prohibition against bills of attainder as applied to McMullen and we affirmed. See In re Extradition of McMullen, 769 F.Supp. 1278 (S.D.N.Y.1991), aff'd, 953 F.2d 761 (2d Cir.1992). By order dated June 5, 1992, we directed a rehearing in banc of the appeal.
The district court rejected McMullen's contentions that the Supplementary Treaty as applied to him is a constitutionally forbidden ex post facto law; that the Treaty contravenes the doctrine of separation of powers by unlawfully encroaching upon the authority of the judicial branch; and that the government violated his due process rights by abusing its power in the course of the proceedings brought against him. The district court found it unnecessary, in light of its disposition of the case, to pass upon the due process violation claims: that the government intentionally delayed McMullen's departure and that it coerced incriminating statements from him. The district court held that these claims could not be decided without an evidentiary hearing in any event.
Of the issues resolved against him in the district court, McMullen presses on his cross appeal only his separation of powers contention. We reject that contention and therefore affirm as to the cross appeal. We think that the district court erred in classifying the Supplementary Treaty as a prohibited bill of attainder, however, and therefore reverse on the government's appeal. We remand the case to the district court for resolution of the due process issues that remain unresolved.
II. THE BILL OF ATTAINDER CLAUSE IN HISTORICAL CONTEXT
"No bill of attainder ... shall be passed." U.S. Const. art. I, § 9, cl. 3.
An act of attainder may be defined to be an act of a legislative body deciding in a single case, upon mere arbitrary discretion, on the life and fortune of an individual--The very definition of the power shews of what an outrageous nature it is. No trial by jury, no certainty of defence, no security in innocence.... Justly has so despotic a power been rejected by our Constitution....
Justice James Iredell, "Charge to the Grand Jury of the Circuit Court for the District of New York," (Apr. 6, 1795), reprinted in 3 The Documentary History of the Supreme Court of the United States, 1789-1800, at 14, 15 (Maeva Marcus ed., 1990). 1
Under the common law of England, attainder was the immediate consequence of a sentence of death. 4 William Blackstone, Commentaries
The judgment was said to fix a mark of infamy upon the person to be executed, who was "then called attaint, attinctus [or] stained." Id. The effect of common law attainder was two-fold: forfeiture to the crown of real and personal property, id. at *374, and "corruption of blood," which meant that the attainted person could neither inherit from his ancestors nor transmit his wealth or title to his heirs, id. at * 381. The attainder that followed a sentence of death after trial is to be distinguished from the bill of attainder, a legislative enactment imposing punishment without trial.
The English Parliament first enacted bills of attainder around 1300. See Note, Bills of Attainder and the Supreme Court in 1960--Flemming v. Nestor, 1961 Wash.U.L.Q. 402, 403. The initial purpose of these bills was to ensure that the estates of dead traitors would escheat to the crown. See Michael P. Lehmann, The Bill of Attainder Doctrine: A Survey of the Decisional Law, 5 Hastings Const.L.Q. 767, 772 (1978). Later, bills of attainder were enacted to punish individuals for a variety of activities perceived to be contrary to the interests of the crown. See Comment, The Bounds of Legislative Specification: A Suggested Approach to the Bill of Attainder Clause, 72 Yale L.J. 330, 331 (1962). Parliament also enacted bills of pains and penalties, which were similar to bills of attainder but provided punishments other than death. Id.
The great Blackstone preferred to "speak not" of attainder, except as it existed in the common law:
As for acts of parliament to attaint particular persons of treason or felony, or to inflict pains and penalties, beyond or contrary to the common law, to serve a special purpose, I speak not of them; being to all intents and purposes new laws, made pro re nata, and by no means an execution of such as are already in being.
4 Blackstone, supra, at * 256.
Indeed, the acts of Parliament to which Blackstone referred are not a part of the proud heritage of English law. As Joseph Story observed:
Bills of this sort have been most usually passed in England in times of rebellion, or of gross subserviency to the crown, or of violent political excitements; periods, in which all nations are most liable (as well the free, as the enslaved) to forget their duties, and to trample upon the rights and liberties of others.
Joseph Story, Commentaries on the Constitution of the United States § 678, at 485 (Carolina Academic Press photo. reprint 1987) (abr. ed. 1833).
Bills of attainder found their way to colonial America, see Alison Reppy, The Spectre of Attainder in New York, 23 St. John's L.Rev. 1, 3-4 (1948) and, during the period of the American Revolution, bills of attainder or bills of pains and penalties directed at British loyalists were enacted in each of the thirteen colonies, see Raoul Berger, Bills of Attainder: A Study of Amendment by the Court, 63 Cornell L.Rev. 355, 376-79 (1978). Bills of attainder were not unknown in the new states. The New York Constitution, adopted on April 20, 1777, was typical. Although it prohibited the state legislature from enacting bills of attainder, it included an exception "for crimes ... committed before the termination of the present war," see Reppy, supra, at 19. Complete corruption of blood was prohibited, however, even in the excepted cases. Id. Between the Declaration of Independence and the 1783 Treaty of Peace, approximately sixty pieces of attainder legislation were enacted in New York, including the Attainder Act of October 22, 1779, under which fifty-nine citizens were attainted, with consequent forfeiture of property. See id. at 17-35.
As a member of the Virginia legislature, Thomas Jefferson was involved in the adoption of legislation in 1778 to attaint one Josiah Phillips for "hav[ing] levied war against this Commonwealth." Thomas Jefferson, "Bill to Attaint Josiah Phillips," (May 28, 1778), reprinted in 3 The Founders' Constitution 345, 345 (Philip B. Kurland & Ralph Lerner eds., 1987). The enactment was unusual in that it required Phillips and his associates to present themselves for trial or else stand convicted of high treason and suffer the death penalty as well as forfeiture. Id. Jefferson replied somewhat testily to criticism of his role in the Phillips attainder, charging his critic with a "diatribe" against the abuse of bills of attainder and giving his own views as follows:
The occasion and proper office of a bill of attainder is this: When a person charged with a crime withdraws from justice, or resists it by force, ... no other means of bringing him to trial or punishment being practicable, a special act is passed by the legislature adapted to the particular case. This prescribes to him a sufficient time to appear and submit to a trial by his peers, declares that his refusal to appear shall be taken as a confession of guilt, as in the ordinary case of an offender at the bar refusing to plead, and pronounces the sentence which would have been rendered on his confession or conviction in a court of law. No doubt that these acts of attainder have been abused in England as instruments of vengeance by a successful over a defeated party. But what institution is insusceptible of abuse in wicked hands?
See Letter from Thomas Jefferson to L.H. Girardin (Mar. 12, 1815), in id. at 349, 349. Jefferson noted that Phillips ultimately was captured, indicted, tried by jury "in the ordinary way," convicted and "sentenced and executed under the common law; a course which every one approves, because the first object of the act of attainder was to bring him to fair trial." Id. Jefferson's definition of a bill of attainder was not, of course, the generally accepted one.
It seems obvious that the Framers were very...
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