Thurgood Marshall

“ If, for instance, a large number of civil rights advocates, labor unionists, or student demonstrators are brought into court on minor trespass or disturbance charges, a jury will not be required even though the court proposes to control their lives for as long as five years. Without having to wait for a jury conviction, the trial judge would be free to impose, at will, such a lengthy probation sentence with onerous probation conditions-the effect of which could be oppressive. A trial judge need not wait until laws are violated and prosecutions are actually brought. ”

“ The focus of probation is not on how society views the offense, but on how the sentencing judge views the offender. 'Through the social investigation of the probation officer and the power to place suitable cases on probation,' the House Judiciary Committee stated in support of the first probation bill to be signed into law, 'the court is enabled to discriminate and adapt its treatment to fit the character and circumstances of the individual offender.' H.R. Rep. ”

“ In order to inhibit, summarily, a group seeking to propagate even the least irritating views, a trial judge need only give a quick glance at the Court's opinion to recognize the numerous options now open to him. ”

“ He can simply issue a blanket injunction against an unpopular group, cite its members for contempt en masse for the slightest injunction violation, deny them a jury, and then, by imposing strict conditions, effectively deprive them of any meaningful freedom for an indefinite period of up to five years. ”

“ We think the analogy used in Cheff should apply equally here. Penalties presently authorized by Congress for petty offenses, including a term on probation, may be imposed in federal criminal contempt cases without a jury trial. Probation is, of course, a significant infringement of personal freedom, but it is certainly less onerous a restraint than jail itself. [6] In noncontempt cases, Congress has not viewed the possibility of five years'probation as onerous enough to make an otherwise petty offense 'serious.' This Court is ill-equipped to make a contrary determination for contempt cases. ”

“ For example, under federal law, most offenders may be placed on probation for up to five years in lieu of or, in certain cases, in addition to a term of imprisonment. See 18 U.S.C. § 3651. Congress, in making the probation statute applicable to 'any offense not punishable by death or life imprisonment,' clearly made it apply to petty, as well as more serious, offenses. In so doing, it did not indicate that the additional penalty of a term of probation was to place otherwise petty offenses in the 'serious' category. ”

“ Such a leap from the definition of petty offenses in 18 U.S.C. § 1 to the provision for probation in 18 U.S.C. § 3651 ascribes to Congress a determination I am certain it did not make, and misconstrues the nature of the probation statute. The probationary scheme does not purport to set specific sentences for particular classes of crimes, thus evincing an 'objective indication' of the 'seriousness with which society regards the offense,' the standard we have used in determining when the right to jury trial attaches. ”

“ In holding that a trial judge, acting without a jury conviction, can sentence a man to serve at least five years on probation and an additional six months, the Court purports to rely on, and not overrule, Cheff, supra, where we held that six months' imprisonment was the maximum sentence that could be imposed without a jury in federal cases. ”

“ Finally, a court can order a defendant to associate only with 'law-abiding' persons, thereby significantly limiting his freedom of association, for this condition, which does not limit revocation of probation to 'knowing association, 'forces him to choose his acquaintances at his peril. ”

“ In such cases, the legislature has included within the definition of the crime itself a judgment about the seriousness of the offense. See Duncan v. Louisiana, supra, at 162, 88 S.Ct at 1454, n. 35. But a person may be found in contempt of court for a great many different types of offenses, ranging from disrespect for the court to acts otherwise criminal. Congress, perhaps in recognition of the scope of criminal contempt, has authorized courts to impose penalties but has not placed any specific limits on their discretion ”

“ President and Commissioners of Princess Anne, 393 U.S. 175, 89 S.Ct. 347, 21 L.Ed.2d 325 (1968) ) the injunction power has today become, when used with this newly liberated contempt power, too awesome a weapon to place in the hands of one man. ”