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 />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