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Did Congress just pass a bill of attainder punishing a dead man?

  • McClatchy Washington Bureau
  • Published Wednesday, Dec. 11, 2013, at 5:48 p.m.
  • Updated Wednesday, Dec. 11, 2013, at 5:58 p.m.

Attention, bill of attainder experts. Turn your attention, please, to S. 1471, newly passed by the House and Senate. Suits & Sentences wants to know whether this bill violates the Constitution.

Also known as the Alicia Dawn Koehl Respect for National Cemeteries Act, the bill includes two basic elements. The first gives the Department of Veterans Affairs the authority to exhume from national cemeteries the remains of individuals who have committed capital crimes.

It's already against the law to bury in national cemeteries those who commit capital crimes.

The second element is more narrowly focused. In fact, it's focused on one named individual. Or, rather, one former individual. The bill specifies that officials "shall disinter the remains of Michael LeShawn Anderson from Fort Custer National Cemetery."

Anderson, police say, shot three people and killed Koehl in Indianapolis last year, and then killed himself. The Army veteran nonetheless was buried at the national cemetery.

Remember, Article I of the Constitution bans bills of attainder. Broadly speaking, a bill of attainder is legislation that declares specified individual(s) guilty and punishes them without judicial process.

Or, as the Supreme Court spelled out in 1946, the provision prohibits legislative acts "no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial."

Anderson, of course, never faced trial for the murder of Anderson, because he killed himself.

Is Suits & Sentences crazy, or just slow, to think this person/carcass-specific legislation raises some questions? To wit:

Is Anderson beyond punishment, as the term is relevant to a bill of attainder analysis, because he is dead? Now that he is dust, can anything be legislated?

If a dead person can be punished, does removal from a national cemetery -- in which burial had been earned -- count as punishment?

Does the fact that existing law was supposed to keep Anderson out of the cemetery in the first place mean there's no punishment involved in getting his remains out?

 

 

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