Criminal contempt

“ During the night, probably about 4 or 5 o’clock this morning, I did cite a case holding that criminal contempt is a crime. If criminal contempt is a crime, then a man who is being tried for criminal contempt is entitled to a jury trial under the Constitution. ”

“ Whatever constitutional safeguards are required in a summary contempt proceeding, whether it be for criminal punishment, or for the imposition of coercive sanction, we must be ever mindful of the danger of permitting punishment by contempt to be imposed for conduct which is identical with an offense defined and made punishable by statute. ”

“ So long as all contempts are lumped together, the serious nature of some contempts and the severity of the sentences commonly imposed in such cases control the legal character of all contempts. None can be regarded as petty. Distinctions between contempts which, after the fact, draw a six-month or greater sentence and those which do not are based on constitutionally irrelevant factors and seem irrelevant to the analysis.
The Constitution, as I see it, thus requires a trial by jury for the crime of criminal contempt, as it does for all other crimes. ”

“ The Constitution guarantees the right to jury trial in state court prosecutions for contempt just as it does for other crimes.
Criminal contempt is a crime in the ordinary sense; it is a violation of the law, a public wrong which is punishable by fine or imprisonment or both. In the words of Mr. Justice Holmes:
'These contempts are infractions of the law, visited with punishment as such. If such acts are not criminal, we are in error as to the most fundamental characteristic of crimes as that word has been understood in English speech.' Gompers v. United States, 233 U.S. 604, 610, 34 S.Ct. ”

“ I am concerned solely with the imposition, without trial by jury, of fixed nontrivial punishments after compliance with the court's order has been secured.
Thus limited, criminal contempts are not essentially different from other 'crimes' or 'criminal prosecutions.' In each case punishment is imposed for a past violation of a mandate of a coordinate organ of government: [38] criminal contempt involves punishment for violation of an order of a court; 'crime' involves punishment for violation of a statute enacted by a legislature. ”

“ But an opportunity to meet a charge of criminal contempt must be a fair opportunity. It would not be fair, if in the court in which the accused can contest for the first time the validity of the charge against him, he comes handicapped with a finding against him which he did not have an adequate opportunity of resisting. ”

“ 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 ”

“ Without deciding what may be the rule in civil contempt, it is certain that in proceedings for criminal contempt the defendant is presumed to be innocent, he must be proved to be guilty beyond a reasonable doubt, and cannot be compelled to testify against himself. ”

“ Our deliberations have convinced us, however, that serious contempts are so nearly like other serious crimes that they are subject to the jury trial provisions of the Constitution, now binding on the States, and that the traditional rule is constitutionally infirm insofar as it permits other than petty contempts to be tried without honoring a demand for a jury trial. We accept the judgment of Barnett and Cheff that criminal contempt is a petty offense unless the punishment makes it a serious one ”

“ In accordance with its constitutional authority to do so, Congress has expressly authorized such a proceeding by an agent of the United States in the Federal courts 'to compel * * * attendance, testimony, or production of books, papers, or other data.' 26 U.S.C. § 1523, 26 U.S.C.A. § 1523. [7]
While particular acts do not always readily lend themselves to classification as civil or criminal contempts, a contempt is considered civil when the punishment is wholly remedial, serves only the purposes of the complainant, and is not intended as a deterrent to offenses against the public. ”

“ Now, while it may be fairly questioned whether there is any actual increase of crime in the United States, and while, on the contrary, observation would seem to show an actual decrease, not only in crimes of violence, but in all major crimes, there nevertheless exists to-day a widespread contempt for the criminal law which, if it has not already stimulated a general increase of criminal activity, is likely to do so in the future. ”

“ There is no valid reason why they should be singled out for an extraordinary and essentially arbitrary mode of enforcement. Unfortunately judges and lawyers have told each other the contrary so often that they have come to accept it as the gospel truth. In my judgment trial by the same procedures, constitutional and otherwise, which are extended to criminal defendants in all other instances is also wholly sufficient for the crime of contempt. ”

“ While contempt may be an offense against the law and subject to appropriate punishment, certain it is that since the foundation of our government proceedings to punish such offenses have beenregarded as sui generis and not 'criminal prosecutions' within the Sixth Amendment or common understanding. ”

“ The criminal contempt section was part of a more general title which permitted a judge to try 'any matter of a criminal nature * * * where the penalty does not exceed the sum of seven dollars.' (Emphasis in original.) Id., at 230.↑ An Act against drunkenness, etc., apparently enacted in 1737. ,1 Laws of Del. (1797) , 173. The criminal contempt section is part of a general statute permitting trial without a jury for a number of petty offenses, e.g., 'drunkenness' (five shillings) ; 'prophane cursing and swearing' (five shillings and three hours in the stocks) ”

“ Arrests for trivial causes, without warrant, not only tend to create breaches of the peace, but render the law and its ministers the subject of public contempt. Citizens must prompt to resent the unlawful attacks of officers, and should pursue offenders by complaints to the appointing powers, by criminal prosecutions and civil suits for damages. ”

“ It recognizes that such disobedience may be contempt and, having prescribed limitations, leaves the court to deal with the offender. While it gives the right to trial by jury and restricts the punishment, it also clearly recognizes the distinction between 'proceeding for contempt' and 'criminal prosecution.' 'No proceeding for contempt shall be instituted against any person unless begun within one year from the date of the act complained of; nor shall any such proceeding be a bar to any criminal prosecution for the same act or acts.' Section 25. ”

“ Yet there was no sign of it: no pointing, accusing hands reached out, nobody gave way to the natural impulse of those who have witnessed a revolting crime—to hurl themselves upon the criminal, to strike him or do him injury. ”

“ Besides, is it just to torment one man for the crime of another? May not the accomplices be found out by the examination of the witnesses, or of the criminal; from the evidence, or from the nature of the crime itself; in short, by all the means that have been used to prove the guilt of the prisoner? The accomplices commonly fly when their comrade is taken. The uncertainty of their fate condemns them to perpetual exile, and frees society from the danger of further injury; whilst the punishment of the criminal, by deterring others, answers the purpose for which it was ordained. ”

“ That ultra-sensitiveness which made a lampoon, a jeer, a scoff, a taunt, an unbearable and inflaming offence, was of equal force when used against the men of the day in punishment for real crimes and offenses.
In many—indeed, in nearly all—of the penalties and punishments of past centuries, [Pg 3] derision, scoffing, contemptuous publicity and personal obloquy were applied to the offender or criminal by means of demeaning, degrading and helpless exposure in grotesque, insulting and painful “engines of punishment,” such as the stocks, bilboes, pillory, brank, ducking-stool or jougs. ”

“ XXX. The second way, by which delays in criminal prosecutions afford occasions for delinquents to escape with impunity, is not so palpable, nor so obvious as the first, but in general is more successful, and oftener takes effect. I will explain what I mean. When a notorious crime is newly committed, all minds are sharpened against the offender, and filled with horror at the outrage. Even the most mild call out for punishment, and the injured person, invokes heaven and earth for it. The public in general seem filled with resentment, and breathe nothing but severity. ”

“ Did we punish criminals merely from an intellectual appreciation of the expediency of so doing, and not because their crimes arouse in us the emotion of anger and the instinct of retribution, the criminal law would be but a feeble instrument. ”

“ After positive conviction, no punishment can be too severe for a crime that produces such mischief; but to degrade a man by corporal punishment, to ruin his character, and render him an object of abhorrence and contempt, in the absence of even bare presumptive evidence, was an act of cruelty and injustice, which could excite but one feeling ”

“ Provided, That such power to punish contempts shall not be construed to extend to any cases except the misbehavior of any person in their presence, or so near thereto as to obstruct the administration of justice, the misbehavior of any of the officers of said courts in their official transactions, and the disobedience or resistance by any such officer, or by any party, juror, witness, or other person to any lawful writ, process, order, rule, decree, or command of the said courts.'↑ See Nelles & King, Contempt by Publication in the United States, 28 Col.L.Rev. ”

“ I say NO—that if there be blood guiltiness let the offender be punished in accordance with our criminal code; if there be none then is he blameless, and to deprive a person of his property because of a harmless act is a crime. ”

“ It is immaterial whether the offender is juror, party, witness, counsel, solicitor or a stranger to the case at hearing, and occasionally it is found necessary to punish for contempt persons under trial for felony or misdemeanour if by violent language or conduct they interrupt the proceedings at their trial. Judges have even treated as contempt the continuance outside the court-house after warning of a noise sufficient to disturb the proceedings of the court ”

“ It still involves violence, but its element of breach of the peace extends to those breaches which do not amount to felony. It can include assault and battery, physical force to land, and physical force to chattels, e.g. assaulting and beating the plaintiff, breaking into his close, or carrying off his goods. One found guilty is fined and imprisoned. As in criminal matters, if a defendant does not appear at court, his body can be seized and imprisoned, and if he cannot be found, he may be outlawed. Trespass to goods results in damages, rather than the return of the goods. ”

“ If contempt is not a crime it should not be punished; if a crime it should be punished as other crimes are punished—by indictment or information, trial by jury if a jury is demanded, with all the safeguards that secure an accused person against judicial blunders and judicial bias. The necessity for these safeguards is even greater in cases of contempt than in others—particularly if the prosecuting witness is to sit in judgment on his own grievance. ”

“ Whether, then, power to punish for contempt exists in every case where a court is of the opinion that a witness is committing perjury, is the test we must here apply. Because perjury is a crime defined by law and one committing it may be tried and punished does not necessarily establish that when committed in the presence of a court it may not, when exceptional conditions so justify, be the subject-matter of a punishment for contempt. ”

“ Of course, as we live in an age when violence is found inconvenient and annoying, your jury naturally condemns by its verdict crimes of a violent character, and will make but short work of highwayman and thug. ”

“ One or another kind has even been subjected to indictment, in cases of nuisance, violation of Sunday law, maintenance of disorderly house, habitual omission of lights or signals, etc. They may be guilty of contempt. ”

“ This account of the considerations which have regulated the punishment of crimes explains the severity with which 'criminal negligence' is in some cases punished, and that severity is justified by the account given of the true principle of criminal law, the principle, viz., that crime should be punished according to the importance of the right which it violates, and to the degree of terror which in a well-organised society needs to be associated with the crime in order to the protection of the right. ”

“ Some light may be gained upon this point from the fact that by public opinion, by the criminal code, and by the actual administration of the law, offences against the person are looked upon as of a higher grade than the crimen falsi. To strike a man in the street with the open palm, and even under extreme provocation, is the great crime next to murder ”

“ As the criminal could defend himself with the sword against the faida or feud of his adversary, or could compound for his guilt with money, the suggestion of torturing him to extort a confession would seem an absurd violation of all his rights. Crimes were regarded solely as injuries to individuals, and the idea that society at large was interested in their discovery, punishment, and prevention, was entirely too abstract to have any influence on the legislation of so barbarous an age. ”