Gale Encyclopedia Of American Law 3Rd Edition Volume 1 P43 pdf

issuance of the proposed regulations. As of September 2009, the case was still pending a final decision. FURTHER READINGS “Documents and Information on Rody Alvarado’s Claim for Asylum in the U.S.” Center for Gender & Refugee Studies. Available online at http://cgrs.uchastings.edu/ campaigns/Alvarado.php website home page: http:// cgrs.uchastings.edu (accessed September 27, 2009). Kimmel, Barbara Brooks, and Alan M. Lubiner. 2000. Immigration Made Simple: An Easy-to-Read Guide to the U.S. Immigration Process. Chester, N.J.: Next Decade. Nicholson, Frances, and Patrick Twomey, eds. 1999. Refugee Rights and Realities: Evolving International Concepts and Regimes. Cambridge: Cambridge Univ. Press. CROSS REFE RENCES Aggravation; Aliens; Homeland Security Department; Felony; Refugees ASYLUMS Establishments that exist for the aid and protec- tion of individuals in need of assistance due to disability, such as insane persons, those who are physically handicapped, or persons who are unable to properly care for themselves, such as orphans. The term asylum has been used, in consti- tutional and legislative provisions, to encompass all institutions that are established and sup- ported by the general public. An insane asylum is one in which custody and care is provided for people with mental problems. An orphanage is an asylum set up as a shelter or refuge for infants and children who do not have parents or guardians. Establishment and Maintenance In the absence of constitutional restrictions, the state is permitted to fulfill its OBLIGATION to aid or support individuals in need of care by contribu- tions to care facilities established or maintained by political subdivisions and private charity. In addition, the state may inaugurate a state asylum, delegating the management responsibility thereof to a private corporation. Some authorities view contributions to asylums of religious organiza- tions or private enterprises as violative of constitutional prohibitions of government aid to parochial institutions or individuals. Express exceptions can be made by state statute or constitution for the payment of funds for designated purposes to specific types of asylums. In situations that are embraced by such exceptions, the contribution that the state makes to the maintenance of the asylum is not regarded as a charity but as part of the state’sdutytoaid its citizens who cannot do so themselves. Public Asylums Ownership and Status An asylum founded and supported by the state has the status of a public institution. The state has the true ownership of the property that a state asylum occupies, and the character of the state’s interest in such property is dependent upon the terms of the deed or contract under which it is held for the institution. When a county conveys property to a board of directors of an insane asylum acting as trustees, title is not vested in the state to the extent that the power to reconvey the land to the county is restricted. In a situation in which property has been conveyed for a particular purpose connected to the operation of the asylum, it has been held that the trustees are permitted to reconvey the property to the county for the establishment of a general hospital. Location and Support When no constitution- al provision prescribing the location of public institutions exists, the state may designate a location or arrange for a place to be found by a specially appointed committee or commission. A state asylum may be funded either by general state TAXATION or throu gh an allocation of a portion or all of the costs among political subdivisions or to the inmates of the asylum. Regulation Under the POLICE POWER of the state, the establishment and regulation of private asylums are subject to the state legisla- tive authority. Such powers may be delegated to political subdivisions and administrative agen- cies. If legislative authority is delegated in such situations, guidelines and standards for regula- tory enforcement must be present. In order for a regulation to be valid, it must be reasonable, applied uniformly, and it must not infringe upon constitutional rights. A state or political subdivision cannot proscribe the lawful operation of an asylum or care facility or create or enforce unreasonable or arbitrary requirements regarding its construction or physical location. Similarly, it cannot make capricious requirements relating to the classifi- cation and nature of individuals to be admitted. Regulations and practices must comply with constitutional and statutory provisions. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 408 ASYLUMS The governing board of an asylum or institutional care facility is empowered to create all necessary rules and bylaws and is responsible for its policies and general administration. The courts will neither prescribe rules nor alter those created by the authorities, unless they are unreasonable or inappropriate. Investigation and Inspection The legislature has the exclusive power to order an investiga- tion of the management of an asylum or care facility. Private individuals may not conduct an investigation. When an investigation is initiated, the institution’s governing board has the power to set forth regulatio ns regarding relations with employees and patients and access to the records. A nursing home operator must make records kept pursuant to a public health statute available for inspection by authorized public officials. In addition, a private facility can be required to turn over annual fiscal reports to a regulatory agency. Statutory requirements for the safety of individuals in institutions are imposed and must be observed. Similarly, standards concern- ing the type of personnel needed to care for the patients are usually set forth, but they must not be unreasonable. Licenses Ordinarily, a license is required to operate an asylum or institutional care facility in order to ensure that minimal health and safety requirements imposed by law are observed. When a license is necessary, operation of a facility without one may be enjoined and, under certain statutes, a contract made by an unli- censed person is void, which would bar recovery for necessaries provided for individuals. The procedure for procuring a license is governed by statute, and the state licensing authorities have the discretion concerning whether it should be granted. When there is a final decision, determinations in licensing proceedings may be subject to JUDICIAL REVIEW. The proce edings on judicial review are generally regulated by statutory provisions that limit the proceedings to those initiated by aggrieved individuals. Under some statutes, before an institutional care facility can be built, a certificate of need, which establishes approval of its construction by a public agency, is required. Officers and Employees The rules that generally apply to public service employees govern the status of officers and employees of institutions. Statutory provisions may provide for the termination of such officers and employees. Inmates, Patients, and Residents Statutory provisions, administrative regulations, and discretion of its administrator govern the admission of inmates or patients to a public institution. When a public asylum is founded for the reception of a specific class of indivi- duals, anyone in the designated class may be admitted. A constitutional provision that requires the advancement and support of certain specified institutions does not mandate that the state incur the total cost of maintaining institution- alized individuals. The expedience of soliciting repayment from responsible people for the expense of care, support, and maint enance of a patient cannot be based exclusively upon whether the commitme nt is voluntary or involuntary. In addition, recovery might be permitted for services actually rendered. The individual in charge of an asylum that stands IN LOCO PARENTIS to infants upon their admission has custody of the children who are committed to its care. Unless otherwise State and county mental hospitals Private psychiatric hospitals Non-federal general hospital psychiatric services a Residential treatment centers for emotionally disturbed children Other b Asylums Number of facilities 0 400 800 1200 1600 1,230 237 264 702 458 a Data excludes mental health care provided in nonpsychiatric units of hospitals, such as general medical units. b Includes freestanding psychiatric outpatient clinics, partial care organizations, and multiservice mental health organizations. SOURCE: U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, National Center for Health Statistics, Health, United States, 2008. NUMBER OF MENTAL HEALTH FACILITIES IN 2004 ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION ASYLUMS 409 prohibited by statute, qualified people may examine the records of children in private institutions when so authorized by its admin- istrators. When a statute exists that guarantees the adult residents of proprietary adult homes the right to manage their own financial affairs, their handling of such matters cannot be subject to judicial challen ge. An institution may be mandated to meet the individual needs of its patients under rules that monitor the operation of private care facilities for the purpose of the MEDICAID program. Appropriate regulations may govern the VISITATION RIGHTS of individuals in an asylum. An individual may be dismissed from the institution for conduct proscribed by the bylaws under penalty of expulsion, provided the person is first afforded notice and an opportunity to be heard. Contracts for Care and Occupancy The admission of an individual to a public institution for care can be the subject of a contract between the patient and the institution concerning the transfer of property to the institution. Even without an express agreement, however, the circumstances may bring about a QUASI CONTRACT to provide for services rendered. An individual may not rescind an occupancy agreement and regain an admission fee without proof of a breach of contract by the institution. Management The management of public institutions is usually entrusted to specific governing bodies or officers. The appropriate body can hire employees to operate the asylum but cannot relinquish its management responsibilities. Physicians who wish to visit patients in private nursing homes can be excluded. If an institution does not provide reasons at the time of the exclusion, it does not preclude the institution from excluding the physician, provided that valid reasons exist and are communicated upon request. Generally, the governing body of an asylum has the power to decide how funds appropriated for its support shall be spent, in the absence of contrary legislative provision. Funds appropri- ated by a legislature for specific purposes cannot, however, be diverted, and the governing body of the asylum does no t have the power to compel the state to provi de funding for services other than those for which the money was appropriated. Similarly, they are not empow- ered to borrow money or incur debts beyond allotments made for the support of institutions. It is proper procedure to make a provision that an asylum may only accept as many inmates for admission as the facilities can adequately accommodate. An institution may not initiate a visitation plan that limits a patient’s right to allocate his or her visiting time among particular people, unless such limitation bears a rational relationship to the patient’s treatment or security. Liabilities An asylum or institutional care facility has the obligation to exercise reasonable care toward patients and can be held liable for a breach of this duty of care. The care taken toward inmates should be in the light of their mental and physical condition. Recovery for injuries precipitated by an institution’s NEGLIGENCE can be barred or limited by the contributory negligence of the injured party. The defense of contributory negligence cannot, however, be used when an individual is physically or mentally incapable of self-care. FURTHER READINGS Goffman, Erving. 2007. Asylums: Essays on the Social Situation of Mental Patients and Other Inmates. New Brunswick, NJ: Aldine Transaction. Jones, Kathleen. 1993. Asylums and After: Revised History of the Mental Health Services from the Early 18th Century to the 1990s. London: Athlone. Rothman, David J. 2002. The Discovery of the Asylum: Social Order and Disorder in the New Republic. New York: Aldine de Gruyter. CROSS REFERENCES Disability Discrimination; Establishment Clause; Health Care Law; Patients’ Rights. AT ISSUE A phrase that describes the status of parties in a lawsuit when they make contradictory statements about a point specified in their pleadings. AT LARGE Not limited to any place, person, or topic; for example, a representative at large is elected by the voters of the state as a whole rather than voters of a particular district. Free from control or restraint, such as a criminal at large. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 410 AT ISSUE AT LAW According to law; by, for, or in the law, as in the professional title attorney at law. Within or arising from the traditions of the common law as opposed to equity, the system of law that developed alongside the common law and empha- sized fairness and justice rather than enforcement of technical rules. ATKINS V. VIRGINIA In a landmark 6–3 ruling, the U.S. Supreme Court barred the execution of mentally retarded people, ruling that it constituted “cruel and unusual punishment” prohibited by the EIGHTH AMENDMENT . However, the Court left to the states to determine the definition of mental retardation. The decision affected as many as 300 mentally retarded death row inmates in 20 states. The case involved Daryl Renard Atkins, who was convicted of capital MURDER and sentenced to death for abdu cting, robbing, and killing 21- year-old airman Eric Michael Nesbitt. The evidence introduced at trial showed that at approximately midnight on August 16, 1996, Atkins and William Jones, both armed with semiautomatic WEAPONS, abducted Nesbitt, robbed him, drove him to an automated teller machine, forced him to withdraw additional cash, and then took him to an isolated location where they shot him eight times at close range. Initially, both Jones and Atkins were indicted for capital murder. The prosecution ultimately permitted Jones to plead guilty to first-degree murder in exchange for his TESTIMO- NY against Atkins. As a result of the PLEA, Jones became ineligible to receive the death penalty. Jones and Atkins both testified in the guilt phase of Atkins’s trial. Each confirmed most of the details in the other’s account of the incident, except that each blamed the other for killing Nesbitt. Jones’s testimony, which was both more coherent and credible than Atkins’s testimony, was apparently credited by the jury in establishing Atkins’s guilt. Highly damaging to the credibility of Atkins’s testimony was its substantial inconsistency with the statement he gave to the police upon his arrest. Jones, in contrast, had declined to make an initial statement to the authorities. At the penalty phase of the trial, the state introduced victim impact evidence and proved two aggravating circumstances: future danger- ousness and “vileness of the offense.” To prove future dangerousness, the state relied on Atkins’s prior felony convictions as well as the testimony of four victims of earlier robberies and assaults. To prove the second aggravating circumstance, the prosecution relied upon pictures of the murdered man’s body and the autopsy report. The defense relied on one witness during the penalty phase, Dr. Evan Nelson, a forensic psychologist who had evaluated Atkins before trial and concluded that he was “mildly mentally retarded.” His conclusion was based on inter- views with people who knew Atkins, a review of school and court records, and the administration of a standard intelligence test, which indicated that Atkins had a full scale IQ of 59. Generally, IQs below 70 are considered in the retarded range. The state presented Dr. Stanton Samenow as an expert rebuttal witness. He testified that Atkins was not mentally retarded but rather was of “average intelligence, at least,” and diagnosable as having antisocial personality disorder. A jury sentenced Atkins to death and the Virginia Supreme Court affirmed the sentence on appeal, saying it was “not willing to commute Atkins’s sentence of death to life imprisonment merely because of his IQ score.” Atkins v. Common- wealth, 260 Va. 375, 534 S.E.2d 312 (Va. 2000). When the case was appealed, most observers expected the U.S. Supreme Court to affirm the sentence as well. In 1989 the Supreme Court had upheld the execution of a mentally retarded death row inmate, notwithstanding objections that such executions violate the Eighth Amend- ment’s ban on CRUEL AND UNUSUAL PUNISHMENT. Penry v. Lynaugh, 492 U.S. 302, 109 S. Ct. 2934, 106 L.Ed.2d 256 (1989). But Justice JOHN PAUL STEVENS , writing for the majority in Atkins, concluded that times had changed in the 13 years since the Penry decision was handed down. When Penry was decided, Stevens observed, only two of the 38 states allowing CAPITAL PUNISHMENT barred execution of mentally retarded inmates. However, at the time Atkins came before the Court, that number had risen to 18. Noting the “procession” of states in which executing the mentally retarded had been deemed illegal, Justice Stevens stated that it was not so much the number of states that was significant, but the co nsistency of the direction GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ATKINS V. VIRGINIA 411 of change. “Given the well-known fact that anti- crime legislation is far more popular than legislation providing protections for persons guilty of violent crime,” he stated, “the large number of states prohibiting the execution of mentally retarded persons (and the complete absence of states passing legislation reinstating the power to conduct such executions) provides powerful evidence that today our society views mentally retarded offenders as categorically less culpable than the average criminal.” Thus, Stevens concluded that the Eighth Amendment now prohibited executing mentally retarded persons under the “evolving standards of decency” test by which punishments are evaluated to determine whether the y are cruel and unusual. Chief Justice WILLIAM REHNQUIST and Justices ANTONIN SCALIA and CLARENCE THOMAS dissented. Chief Justice Rehnquist criticized the majority for basing its decision on the fact that 18 states have laws barring execution of mentally retard- ed defendants, because the laws of 20 states would have otherwise continued to leave the question of proper punishment to the individu- ated consideration of SENTENCING judges or juries familiar with the particular offender and his or her crime. Chief Justice Rehnquist agreed with Justice Scalia’s opinion that the majority’s assessment of the current legislative judgment more resembled a post hoc rationalization for the majority’s “ subjectively preferred result” than “any objective effort to ascertain the content of an evolving standard of decency.” FURTHER READINGS Dowling, Alexis Krulish. 2003. “Post-Atkins Problems with Enforcing the Supreme Court’s Ban on Executing the Mentally Retarded.” Seton Hall Law Review 33 (sum- mer). Henshaw, Jaime L. 2003. “Atkins v. Virginia: The Court’s Failure to Recognize What Lies Beneath.” Univ. of Richmond Law Review 37, vol. 4 (May). “Implementing Atkins.” 2003. Harvard Law Review 116 (June). Velasquez, Eli. 2003. “The Shaping of an American Consensus against the Execution of Mentally Retarded Criminals.” Whittier Law Review 24 (summer). CROSS REFE RENCES Eighth Amendment; Felony; Forensic Science; Murder; Plea; Rebut; Victims of Crime. ATTACHMENT The legal process of seizing property to ensure satisfaction of a judgment. The document by which a court orders such a SEIZURE may be called a WRIT of attachment or an order of attachment. Originally, the main purpose of attachment was to coerce a DEFENDANT into appearing in court and answering the plaintiff’s claim. The court’s order pressured the sher iff to take the defendant’s property into custody, depriving the individual of the right to use or sell it. If the defendant obstinately refused to appear, the property could be sold by the court to pay off any monetary judgment entered against him or her. In the early twenty-first century, the process of attachment has two functions, as a jurisdic- tional predicate and as a provisional remedy. Attachment of property within reach of the court’s jurisdiction gives the court auth ority over the defendant to the extent of that property’s value even if the court cannot reach the defendant personally. For example, a court must have some connection with the defendant in order to require that person to appear and defend himself or herself in an action before that court. A variety of different facts are sufficient to give the court jurisdiction over the defendant’s person; for example, the defendant’s residence within the state, the defendant’s commission of a wrongful act within the state, or the defendant’s doing business within the state. If none of these kinds of facts exist to give the court jurisdiction over the defendant’s person, the court may nevertheless assert its authority over property that the defendant owns within the state. In such a case, the PLAINTIFF cannot recover a monetary judgment for an amount larger than the value of the property nor can the individual reach the defendant’s property outside the state, but this sort of jurisdiction, called jurisdiction in rem or quasi in rem, may be the best the plaintiff can get. Before the court can exercise jurisdiction over the property, the plaintiff must obtain a writ of attachment to bring it into custody of the court. Attachment may also be a provisional remedy, that is, relief that temporarily offers the plaintiff some security while pursuing a final judgment in the lawsuit. For example, a plaintiff who has good reason to believe that the person he or she is suing is about to pack up and leave the state will want the court to prevent this until the plaintiff has a chance to win the action and collect on the judgment. The plaintiff can apply GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 412 ATTACHMENT STATE OF NORTH CAROLINA *Alias and Pluries Order The Order originally issued against you was returned not served. Original-File Copy-Each Defendant (Over) Copy-Attorney/Plaintiff [continued] County VERSUS G.S. 1-440.12, 1-440.13 The above named plaintiff has applied for an attachment of the defendant’s property in this action and has executed and delivered to the Court a satisfactory attachment bond. It appears to the satisfaction of the Court that the allegations in the plaintiff’s affidavit are true. You are commanded to attach and keep safely as much of the property of the defendant within your county which is subject to attachment, as is sufficient to satisfy the amount sought in the Affidavit in Attachment Proceeding, the costs of the action and expenses. You are further commanded to make return of this Order to this Court within the time allowed by law. The amount sufficient to satisfy the plaintiff’s demand is shown below. In The General Court Of Justice File No. Name Of Plaintiff Name Of Defendant County In Which Order To Be Served Amount Sufficient To Satisfy Plaintiff’s Demand Film No. Date Last Order Issued Date Issued Signature Assistant CSC District Court Judge Clerk Of Superior Court Superior Court Judge District Superior Court Division *Disregard this section unless the block is checked. $ AOC-CV-301, Rev. 1/98 ©1998 Administrative Office of the Courts ORDER OF ATTACHMENT To The Sheriff Of The County Named Below: A sample order of attachment GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ATTACHMENT 413 A sample order of attachment (continued) ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. RETURN OF SERVICE DATE OF LEVY PROPERTY LEVIED ON NOTE TO SHERIFF: $ AOC-CV-301, Side Two, Rev. 1/98 ©1998 Administrative Office of the Courts I certify that pursuant to this Order I levied on the following described property of the defendant on the date set out below: NOTE TO CLERK: If the return certifies that the sheriff levied on real property, note the levy on the judgment docket and index it. If you levy on real property and this Order Of Attachment was issued by a Clerk from a county other than your county, in addition to returning the order and return of service to the Clerk who issued it, you must give a copy of this order and return of service to the Clerk of Superior Court in your county. G.S. 1-440.17(a). Fee Paid Date Received Date Served Date Returned Name Of Sheriff County Deputy Sheriff Making Return By No levy has been made within ten (10) days after the issuance of this Order Of Attachment for the following reasons: Judgment Docket Book And Page No. (If Real Property Attached) STATE OF NORTH CAROLINA GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 414 ATTACHMENT for an order of attachment that brings the property into the custody of the court and takes away the defendant’s right to remove it or dispose of it. Attachment is considered a very harsh remedy because it substantially interferes with the defendant ’spropertyrightsbeforefinal resolution of the overall dispute. For this reason, there have been a number of chall enges to the attachment procedures in different states, and the Supreme Court has established standards that are the least that due process requires. For example, for centuries attachment of a defendant’s proper- ty was granted ex parte, that is, without first allowing the defendant to argue against it. The theory wa s that any defendant was likely to leave the state if he or she knew beforehand that his or her p roperty was abou t to be attached. T his collides with the individual’s right to be free of interference with his or her rights unless the individual is given notice and an opportunity to be heard in the matter. States, therefore, now generally provide that notice must be given to the defendant before the seizure of property whenev- er practical, and the defendant m ust be given a hearing promptly after the s eizure. Furthermore, a court cannot SANCTION a seizure that is made without a court order of attachment. To obt ain the order, the plaintiff must swear to a set of facts that justify such a drastic interference with the defendant’sproperty. The process of attachment varies in detail from state t o state, b ut it is not overly complicated. The plaintiff submits an application to the court describing the CAUSE OF ACTION against the defendant and the grounds for seeking an attachment. The plaintiff may have to include documents or other e vidence t o s upport the claim that he or she will probably win t he lawsuit, and the individual usually is required to make the application under oath. States generally require that the plaintiff post a bond or undertaking in an amount sufficient t o secure payment of damages to the defendant if it turns out that the plaintiff was not in fact entitled to the attachment. The court issues a writ of attachment directing the sheriff or other law enforcement officer to serve a copy of the order on the defendant and to seize property equal in value to the sum specified in the writ. This is called a levy of attachment. The defendant then has a right to challenge the seizure or to post bond for the release of the property, in effect substituting the bond for the property in the court’s custody. The order of attachment is effective only for a limited period, the time necessary to WIND UP the lawsuit between plaintiff and defendant or a specified period intended to permit resolution of the controversy. Provisions are usually made for special circumstances or extreme hardship. Not every kind of property owned by the defendant is subject to attachment. The laws of a state may provide exemptions for certain household items, clothing, tools, and other essentials. The defendant’s salary may be subject to attachment, but a certain amount is exempt in order to allow for personal support or for family support. Property belonging to the defendant but in the hands of someone else, such as salary owed or a debt not yet paid, may also be seized, but this procedure i s usually called GARNISHMENT rather than attachment. Courts always have the discretion to exempt more property than that specified in a statute or to deny the attachment altogether under the proper circumstances. This may be done, for example, when the court believes that the property sought to be attached is worth much more than any judgment the plaintiff could hope to win, or where the property is an ongoing business that would be destroyed by attachment. FURTHER READINGS Jasper, Margaret C. 2000. The Law of Attachment and Garnishment. Dobbs Ferry, NY: Oceana. Lambert, Vicki. 1999. Garnishment: A Practical Guide. Chicago, IL: CCH. Morganstern, Stanley. 1971. Legal Protection in Garnishment and Attachment. Dobbs Ferry, NY: Oceana Siegel, Lee S., and Charlotte Biblow. 2000. “Attachment in Aid of Arbitration.” Banking Law Journal 117, vol. 5 (September-October). CROSS REFERENCE Search and Seizure. ATTAINDER At COMMON LAW,thatextinctionofCIVIL RIGHTS and capacities that took place whenever a person who had committed TREASON or a felony received a sentence of death for the crime. Theeffectofattainderuponafelonwas,in general terms, that all estate, real and personal, was forfeited. In common law, attainder resulted in three ways: by confession, by verdict, and by process or outlawry. The first case was where the prisoner pleaded guilty at the bar, or having fled, confessed GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ATTAINDER 415 guilt and abjured the realm to save his or her life. Thesecondwaswheretheprisonerpleadednot guilty at the bar, and the jury brought in a verdict against him or her. The third, when the person accused made his or her escape and was outlawed. In England, by statute 33 & 34 Vict. c. 23, attainder upon conviction, with consequent cor- ruption of blood, FORFEITURE,orESCHEAT,was abolished. In the United States, the doctrine of attainder is now scarcely known, although during and shortly after the Revolution acts of attainder were passed by several of the states. The passage of such bills is expressly forbidden by the Constitu- tion (Art. I, Sec. 9). Bills of attainder are special acts of the legislature that inflict capital punishments upon persons supposed to be guilty of high offenses, such as treason and felony, without any conviction in the ordinary course of judicial proceedings. If an act inflicts a milder degree of punishment than death, it is called a bill of pains and penalties, but both are included in the prohibition in the Constitution (Art. I, Sec. 9). The term attainder is derived from att incta, Latin for stained or blackened. When attainder occurred, the condemned person was consid- ered to bear a mark of infamy that corrupted his or her blood. Attainder was eventually abolished in England by statute. In the United States, attainder is scarcely known today, although several states enacted acts of attainder during the Revolutionary War period. A few states consider the disqualification of a person impeached and convicted to hold any govern ment office to be a type of attainder. Attainder is akin to the concept of CIVIL DEATH, the forefeiture of certain rights and privi leges upon conviction of a serious crime. ATTEMPT An undertaking to do an act that entails more than mere preparation but does not result in the successful completion of the act. In CRIMINAL LAW, an attempt to commit a crime is an offense when an accused makes a substantial but unsuccessful effort to commit a crime. The elements of attempt vary, although generally, there must be an intent to commit the crime, an OVERT ACT beyond mere preparation, and an apparent ability to co mplete the crime. Generally attempt s are punishable by impris- onment, with sentence lengths that vary in time, depending upon the severity of the offense attempted. ATTENUATE To reduce the force or severity; to lessen a relationship or connection between two objects. In CRIMINAL PROCEDURE, the relationship be- tween an illegal search and a confession may be sufficiently attenuated as to remove the confes- sion from the protection afforded by the FRUIT OF THE POISONOUS TREE doctrine, thereby making it admissible as evidence in a criminal prosecution depending upon the facts of the case. ATTEST To solemnly declare verbally or in writing that a particular document or testim ony about an event is a true and accurate representation of the facts; to bear witness to. To formally certify by a signature that the signer has been present at the execution of a particular writing so as to rebut any potential challenges to its authenticity. ATTESTATION The a ct of attending the executi on of a document and bearing witness to its authe nticity, b y s igning one’s name t o i t to a ffirm t hat it is g enuine. T he certification by a custodian of records that a copy of an original document is a true copy that is demonstrated by his or her signature o n a certificate. An attestation is a declaration by a witness that an instrument has been executed in his or her presence according to the formalities required by law. It is not the same as an acknowledgment, a statement by the maker of a document that verifies its authenticity. An attestation clause is frequently found in legal documents that must be witnessed if they are to be valid, for example, a will or a deed. It states that the instrument has been completed in the manner required by law in the presence of the witness who places his or her signature in the designated space. ATTICA PRISON RIOT See PRISON “1971 Attica Prison Riot” (Sidebar). ATTORN To turn over money, rent, or goods to another. To assign to a specific function or service. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 416 ATTEMPT ATTORNEY-CLIENT PRIVILEGE In the law of evid ence, a client’s privilege to refuse to disclose, and to prevent any other person from disclosing, confidential communications between the client and his or her attorney. Such privilege protects communications between attorney and client that are made for the purpos e of furnishing or obtaining professional legal advice or assistance. That privilege that permits an attorney to refuse to testify as to communications from the client. It belongs to the client, not the attorney, and hence only the client may waive it. In federal courts, state law is applied with respect to such privilege. The attorney-client privilege encourages clients to disclose to their attorneys all pertinent information in legal matters by protecting such disclosures from discovery at trial. The privileged information, held strictly between the ATTORNEY and the client, may remain private as long as a court does not force disclosure. The privilege does not apply to communications between an attorney and a client that are made in further- ance of a FRAUD or other crime. The responsibility for designating which information should re- main confidential rests with the client. In its most COMMON use, however, the attorney claims the privilege on behalf of the client in refusing to disclose to the court, or to any other party, requested information about the client’scase. As a basic construction in the judicial system, the privilege is an ancient device. It can be found even in Roman law—for example, Marcus Tullius Cicero, while prosecuting the governor of Sicily, could not call the governor’s advocate as a witness, because if he were to have done so, the governor would have lost confi- dence in his own defender. Over the years, the close tie between attorney and client developed further with reforms in English COMMON LAW. Because the attor ney-client privilege often balances competing interests, it defies a rigid definition. However, one often-cited characteri- zation was set forth in United States v. United Shoe Machinery Corp., 89 F. Supp. 357 (D. Mass. 1950). The court articulated five requirements: first, the person asserting the privilege must be a client, or must have sought to become a client at the time of disclosure; second, the person connected to the communication must be acting as a lawyer; third, the communication must be between the lawyer and the client exclusively—no non-clients may be includ ed in the communication; fourth, the communication must have occurred for the purpose of securing a legal opinion, legal services, or assistance in some legal proceeding, and not for the purpose of committing a crime; fifth, the privilege may be claimed or waived by the client only (usually, as stated above, through counsel). Sometimes, even when all five of the United Shoe requirements have been met, courts will compel disclosure of the information sought. They base exceptions to the privilege on Rule 501 of the FEDERAL RULES OF EVIDENCE, w hich states that “the recognition of a privilege based on a confidential relations hi p should be determined on a case- by-case b asis.” Courts weigh the benefits to be gained by upholding the privilege (that is, preserv- ing the confidence between a ttorney and client) against the harms that might be caus ed if they deny it (that is, the loss of information that would be valuable to the opposing party). Courts have declared that the fact of an attorney-client relationship itself need not always remain privileged information (National Union Fire Insurance Co. of Pittsburgh v. Aetna Casualty & Surety Co., 384 F.2d 316 [5th Cir. 1967]); the privilege may be upheld, however, if the very existence of an attorney-client relationship could prove to be incriminating to the client (In re Michaelson, 511 F.2d 8 82 [9th Cir. 1975], cert. denied, 421 U.S. 978, 95 S. Ct. 1979, 44 L. Ed. 2d 469 [1975]). The attorney-client privilege does not always protect the client’s name or the amount paid to an attorney (Wirtz v. Fowler, 372 F.2d 315 [5th Cir. 1966]). Further, the attorney’s perception of the client’s mental competency will not always be protected (United States v. Kendrick, 331 F.2d 110 [4th Cir. 1964][holding that attorney’s TESTIMONY that client was respon- sive, and logical in conversation and reasoning, and that he understood that the proceedings, did not address confidential matters]). In general, exceptions to the att or ney-client privilege can prove problematic to criminal defense attorneys, who try to keep a client’s potentially incriminating disclosures confidential. One exception, however, is intended to pr otect attorneys: Meyerhofer v. Empire Fire & Marine Insurance Co., 497 F.2d 1190 (2d Cir. 1974), cert. denied, 419 U.S. 998, 95 S. Ct. 314, 42 L. Ed. 2d 272 (1974), held that a n attorney may circumvent the p rivilege i f revealing information w ould relieve him or her of accusations of wrongdoing. A client is not always a person; a c orporation can be a client and can have a r i ght to the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ATTORNEY-CLIENT PRIVILEGE 417 . the Courts ORDER OF ATTACHMENT To The Sheriff Of The County Named Below: A sample order of attachment GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ATTACHMENT 413 A sample order of attachment (continued) ILLUSTRATION. BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. RETURN OF SERVICE DATE OF LEVY PROPERTY LEVIED ON NOTE TO SHERIFF: $ AOC-CV-3 01, Side Two, Rev. 1/ 98 19 98 Administrative Office of the Courts I. ISSUE AT LAW According to law; by, for, or in the law, as in the professional title attorney at law. Within or arising from the traditions of the common law as opposed to equity, the system of law