Petitioner was convicted in Illinois of criminal contempt and
sentenced to 24 months' imprisonment for willfully petitioning to
admit to probate a will falsely prepared and executed after the
putative testator's death. His request for a jury trial was refused
by the trial court. The Illinois Supreme Court affirmed his
conviction.
Held:
1. In view of the holdings in
United States v. Barnett,
376 U. S. 681
(1964);
Cheff v. Schnackenberg, 384 U.
S. 373 (1966), and
Duncan v. Louisiana, ante,
p.
399 U.S. 145, the broad
rule that all criminal contempts can be constitutionally tried
without a jury is reexamined. Pp.
399 U. S.
195-198.
2. Criminal contempt is a crime in every essential respect;
serious criminal contempts are so nearly like other serious crimes
that they are subject to the Constitution's jury trial provisions,
and only petty contempts may be tried without honoring demands for
trial by jury. The progression of legislative and judicial
restrictions on the unfettered power to try contempts summarily
reflects this identity, and underlines the need to extend
traditional protections to trials for serious contempts. Pp.
399 U. S.
201-210.
3. To the extent that summary punishment for criminal contempts
preserves the dignity, effectiveness and efficiency of the judicial
process, those interests are outweighed by the need to provide the
defendant charged with a serious criminal contempt with all the
procedural protections deemed fundamental to our judicial system.
The power to commit for civil contempt and to punish petty criminal
contempts summarily is unaffected. Pp.
399 U. S.
208-210.
4. When the legislature has not expressed a judgment as to the
seriousness of an offense by fixing a maximum penalty, the best
evidence as to the seriousness of the offense is the penalty
actually imposed. Accordingly, petitioner, sentenced to a two-year
prison term, was constitutionally entitled to a jury trial.
See
Duncan v. Louisiana, supra. Pp.
399 U. S.
210-211.
35 Ill. 2d
255,
220 N.E.2d
475, reversed and remanded.
Page 391 U. S. 195
MR. JUSTICE WHITE delivered the opinion of the Court.
Petitioner was convicted in an Illinois state court of criminal
contempt and sentenced to imprisonment for 24 months for willfully
petitioning to admit to probate a will falsely prepared and
executed after the death of the putative testator. Petitioner made
a timely demand for jury trial which was refused. Since, in
Duncan v. Louisiana, ante, p.
391 U. S. 145, the
Constitution was held to guarantee the right to jury trial in
serious criminal cases in state courts, we must now decide whether
it also guarantees the right to jury trial for a criminal contempt
punished by a two-year prison term.
I
Whether federal and state courts may try criminal contempt cases
without a jury has been a recurring question in this Court. Article
III, § 2, of the Constitution provides that "[t]he Trial of all
Crimes, except in Cases of Impeachment, shall be by Jury. . . ."
The Sixth Amendment states that, "[i]n all criminal prosecutions,
the accused shall enjoy the right to a speedy and public trial, by
an impartial jury. . . ." The Fifth and Fourteenth Amendments
forbid both the Federal Government and the States from depriving
any person of "life, liberty, or property, without due process of
law." Notwithstanding these provisions, until
United States v.
Barnett, 376 U. S. 681,
rehearing denied, 377 U.S. 973 (1964), the Court
consistently upheld the constitutional power of the state and
federal courts to punish
Page 391 U. S. 196
any criminal contempt without a jury trial.
Eilenbecker v.
District Court of Plymouth County, 134 U. S.
31,
134 U. S. 36-39
(1890);
I.C.C. v. Brimson, 154 U.
S. 447,
154 U. S.
488-489 (1894); In re Debs,
158 U.
S. 564,
158 U. S.
594-596 (1895);
Gompers v. United States,
233 U. S. 604,
233 U. S.
610-611 (1914);
Green v. United States,
356 U. S. 165,
356 U. S.
183-187 (1958). [
Footnote 1] These cases construed the Due Process Clause
and the otherwise inclusive language of Article III and the Sixth
Amendment as permitting summary trials in contempt cases because,
at common law, contempt was tried without a jury and because the
power of courts to punish for contempt without the intervention of
any other agency was considered essential to the proper and
effective functioning of the courts and to the administration of
Justice.
United States v. Barnett, supra, signaled a possible
change of view. The Court of Appeals for the Fifth Circuit
certified to this Court the question whether there was a right to
jury trial in an impending contempt proceeding. Following prior
cases, a five-man majority held that there was no constitutional
right to jury trial in all contempt cases. Criminal contempt,
intrinsically and aside from the particular penalty imposed, was
not
Page 391 U. S. 197
deemed a serious offense requiring the protection of the
constitutional guarantees of the right to jury trial. However, the
Court put aside, as not raised in the certification or firmly
settled by prior cases, the issue whether a severe punishment would
itself trigger the right to jury trial, and indicated, without
explication, that some members of the Court were of the view that
the Constitution limited the punishment which could be imposed
where the contempt was tried without a jury. 376 U.S. at
376 U. S.
694-695 and n. 12.
Two years later, in
Cheff v. Schnackenberg,
384 U. S. 373
(1966), which involved a prison term of six months for contempt of
a federal court, the Court rejected the claim that the Constitution
guaranteed a right to jury trial in all criminal contempt cases.
Contempt did not "of itself" warrant treatment as other than a
petty offense; the six months' punishment imposed permitted dealing
with the case as a prosecution for "a petty offense, which, under
our decisions, does not require a jury trial."
384 U.
S. 373,
384 U. S.
379-380 (1966).
See Callan v. Wilson,
127 U. S. 540
(1888);
Schick v. United States, 195 U. S.
65 (1904);
District of Columbia v. Clawans,
300 U. S. 617
(1937). It was not necessary in
Cheff to consider whether
the constitutional guarantees of the right to jury trial applied to
a prosecution for a serious contempt. Now, however, because of our
holding in
Duncan v. Louisiana, supra, that the right to
jury trial extends to the States, and, because of Bloom's demand
for a jury in this case, we must once again confront the broad rule
that all criminal contempts can be constitutionally tried without a
jury.
Barnett presaged a reexamination of this doctrine at
some later time; that time has now arrived.
In proceeding with this task, we are acutely aware of the
responsibility we assume in entertaining challenges to a
constitutional principle which is firmly entrenched
Page 391 U. S. 198
and which has behind it weighty and ancient authority. 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; but, in
our view, dispensing with the jury in the trial of contempts
subjected to severe punishment represents an unacceptable
construction of the Constitution, "an unconstitutional assumption
of powers by the [courts] which no lapse of time or respectable
array of opinion should make us hesitate to correct."
Black
& White Taxicab & Transfer Co. v. Brown & Yellow
Taxicab & Transfer Co., 276 U. S. 518,
276 U. S. 533
(1928) (Holmes, J., dissenting). The rule of our prior cases has
strong, though sharply challenged, historical support; [
Footnote 2] but neither this
circumstance nor the considerations
Page 391 U. S. 199
of necessity and efficiency normally offered in defense of the
established rule justify denying a jury trial in serious criminal
contempt cases. The Constitution
Page 391 U. S. 200
guarantees the right to jury trial in state court prosecutions
for contempt, just as it does for other crimes.
Page 391 U. S. 201
II
.
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,
233 U. S. 610
(1914). [
Footnote 3]
Criminally contemptuous conduct may violate other provisions of
the criminal law; but even when this is not the case, convictions
for criminal contempt are indistinguishable from ordinary criminal
convictions, for their impact on the individual defendant is the
same. Indeed, the role of criminal contempt and that of many
ordinary criminal laws seem identical -- protection of the
institutions of our government and enforcement of their
mandates.
Given that criminal contempt is a crime in every fundamental
respect, the question is whether it is a crime to which the jury
trial provisions of the Constitution
Page 391 U. S. 202
apply. We hold that it is, primarily because, in terms of those
considerations which make the right to jury trial fundamental in
criminal cases, there is no substantial difference between serious
contempts and other serious crimes. Indeed, in contempt cases, an
even more compelling argument can be made for providing a right to
jury trial as a protection against the arbitrary exercise of
official power. Contemptuous conduct, though a public wrong, often
strikes at the most vulnerable and human qualities of a judge's
temperament. Even when the contempt is not a direct insult to the
court or the judge, it frequently represents a rejection of
judicial authority or an interference with the judicial process or
with the duties of officers of the court.
The court has long recognized the potential for abuse in
exercising the summary power to imprison for contempt -- it is an
"arbitrary" power which is "liable to abuse."
Ex parte
Terry, 128 U. S. 289,
128 U. S. 313
(1888). "[I]ts exercise is a delicate one, and care is needed to
avoid arbitrary or oppressive conclusions."
Coke v. United
States, 267 U. S. 517,
267 U. S. 539
(1925). [
Footnote 4]
These apprehensions about the unbridled power to punish
summarily for contempt are reflected in the march of events in both
Congress and the courts since our Constitution was adopted. The
federal courts were established by the Judiciary Act of 1789; § 17
of the Act provided that those courts
"shall have power to . . . punish by fine or imprisonment, at
the discretion of said courts, all contempts of authority in any
cause or hearing before the same. . . ."
1 Stat. 83.
See Anderson
v.
Page 391 U. S. 203
Dunn, 6 Wheat. 204, 227-228 (1821). This open-ended
authority to deal with contempt, limited only as to mode of
punishment, proved unsatisfactory to Congress. Abuses under the
1789 Act culminated in the unsuccessful impeachment proceedings
against James Peck, a federal district judge who had imprisoned and
disbarred one Lawless for publishing a criticism of one of Peck's
opinions in a case which was on appeal. The result was drastic
curtailment of the contempt power in the Act of 1831, 4 Stat. 487.
Ex parte
Robinson, 19 Wall. 505,
86 U. S.
510-511 (1874);
In re Savin, 131 U.
S. 267,
131 U. S.
275-276 (1889). That Act limited the contempt power to
misbehavior in the presence of the court or so near thereto as to
obstruct justice; misbehavior of court officers in their official
transactions, and disobedience of or resistance to the lawful writ,
process, order, or decree of the court. [
Footnote 5] This major revision of the contempt power
in the federal sphere, which "narrowly confined" and "substantially
curtailed" the authority to punish contempt summarily,
Nye v.
United States, 313 U. S. 33,
313 U. S. 47-48
(1941), has continued to the present day as the basis for the
general
Page 391 U. S. 204
power to punish criminal contempt. [
Footnote 6] 62 Stat. 701, 18 U.S.C. § 401.
The courts also proved sensitive to the potential for abuse
which resides in the summary power to punish contempt. Before the
19th century was out, a distinction had been carefully drawn
between contempts occurring within the view of the court, for which
a hearing and formal presentation of evidence were dispensed with,
and all other contempts where more normal adversary procedures were
required.
Ex parte Terry, 128 U.
S. 289 (1888);
In re Savin, 131 U.
S. 267 (1889). Later,
Page 391 U. S. 205
the Court could say
"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."
Gompers v. Bucks Stove & Range Co., 221 U.
S. 418,
221 U. S. 444
(1911).
See Michaelson v. United States ex rel. Chicago, St.
P., M. & O. R. Co., 266 U. S. 42,
266 U. S. 66
(1924). Chief Justice Taft speaking for a unanimous Court in
Cooke v. United States, 267 U. S. 517,
267 U. S. 537
(1925), said:
"Due process of law, therefore, in the prosecution of contempt,
except of that committed in open court, requires that the accused
should be advised of the charges and have a reasonable opportunity
to meet them by way of defense or explanation. We think this
includes the assistance of counsel, if requested, and the right to
call witnesses to give testimony, relevant either to the issue of
complete exculpation or in extenuation of the offense and in
mitigation of the penalty to be imposed."
Cf. Blackmer v. United States, 284 U.
S. 421,
284 U. S. 440
(1932). It has also been recognized that the defendant in criminal
contempt proceedings is entitled to a public trial before an
unbiased judge,
In re Oliver, 333 U.
S. 257 (1948);
Offutt v. United States,
348 U. S. 11
(1954);
see Ungar v. Sarafite, 376 U.
S. 575 (1964);
but cf. Levine v. United States,
362 U. S. 610
(1960). [
Footnote 7] In the
federal system, many of the procedural protections available to
criminal contemnors are set forth in Fed.Rule Crim.Proc. 42.
Judicial concern has not been limited to procedure. In
Toledo Newspaper Co. v.
United States, 247 U.S.
Page 391 U. S. 206
402 (1918), the Court endorsed a broad construction of the
language of the Act of 1831 permitting summary trial of contempts
"so near [to the court] as to obstruct the administration of
justice." It required only that the conduct have a "tendency to
prevent and obstruct the discharge of judicial duty. . . ."
Id. at
247 U. S. 419.
See Craig v. Hecht, 263 U. S. 255,
263 U. S. 277
(1923). This view proved aberrational, and was overruled in
Nye
v. United States, 313 U. S. 33,
313 U. S. 47-52
(1941), which narrowly limited the conduct proscribed by the 1831
Act to "misbehavior in the vicinity of the court disrupting to
quiet and order or actually interrupting the court in the conduct
of its business."
Id. at
313 U. S. 52.
Cf. Toledo Newspaper Co. v. United States, supra, at
247 U. S. 422
(Holmes, J., dissenting). The congressional purpose to fence in the
power of the federal courts to punish contempt summarily was
further implemented in
Cammer v. United States,
350 U. S. 399,
350 U. S.
407-408 (1956). A lawyer, the Court held, "is not the
kind of
officer' who can be summarily tried for contempt under
18 U.S.C. § 401(2)." In another development, the First Amendment
was invoked to ban punishment for a broad category of arguably
contemptuous out-of-court conduct. Bridges v. California,
314 U. S. 252
(1941); Pennekamp v. Florida, 328 U.
S. 331 (1946); Craig v. Harney, 331 U.
S. 367 (1947). Finally, over the years in the federal
system, there has been a recurring necessity to set aside
punishments for criminal contempt as either unauthorized by statute
or too harsh. E.g., 86 U. S. 19
Wall. 505 (1874); United States v. United Mine Workers,
330 U. S. 258
(1947); Yates v. United States, 355 U. S.
66 (1957). [Footnote
8]
Page 391 U. S. 207
This course of events demonstrates the unwisdom of vesting the
judiciary with completely untrammeled power to punish contempt, and
makes clear the need for effective safeguards against that power's
abuse. Prosecutions for contempt play a significant role in the
proper functioning of our judicial system; but despite the
important values which the contempt power protects, courts and
legislatures have gradually eroded the power of judges to try
contempts of their own authority. In modern times, procedures in
criminal contempt cases have come to mirror those used in ordinary
criminal cases. Our experience teaches that convictions for
criminal contempt, not infrequently resulting in extremely serious
penalties,
see United States v. Barnett, 376 U.
S. 681,
376 U. S. 751
(Goldberg, J., dissenting), are indistinguishable from those
obtained under ordinary criminal
Page 391 U. S. 208
laws. If the right to jury trial is a fundamental matter in
other criminal cases, which we think it is, it must also be
extended to criminal contempt cases.
III
Nor are there compelling reasons for a contrary result. As we
read the earlier cases in this Court upholding the power to try
contempts without a jury, it was not doubted that the summary power
was subject to abuse or that the right to jury trial would be an
effective check. Rather, it seems to have been thought that summary
power was necessary to preserve the dignity, independence, and
effectiveness of the judicial process --
"To submit the question of disobedience to another tribunal, be
it a jury or another court, would operate to deprive the proceeding
of half its efficiency."
In re Debs, 158 U. S. 564,
158 U. S. 595
(1895). It is at this point that we do not agree: in our judgment,
when serious punishment for contempt is contemplated, rejecting a
demand for jury trial cannot be squared with the Constitution or
justified by considerations of efficiency or the desirability of
vindicating the authority of the court.
We cannot say that the need to further respect for judges and
courts is entitled to more consideration than the interest of the
individual not to be subjected to serious criminal punishment
without the benefit of all the procedural protections worked out
carefully over the years and deemed fundamental to our system of
justice. Genuine respect, which alone can lend true dignity to our
judicial establishment, will be engendered not by the fear of
unlimited authority, but by the firm administration of the law
through those institutionalized procedures which have been worked
out over the centuries.
We place little credence in the notion that the independence of
the judiciary hangs on the power to try contempts summarily, and
are not persuaded that the
Page 391 U. S. 209
additional time and expense possibly involved in submitting
serious contempts to juries will seriously handicap the effective
functioning of the courts. We do not deny that serious punishment
must sometimes be imposed for contempt, but we reject the
contention that such punishment must be imposed without the right
to jury trial. The goals of dispatch, economy, and efficiency are
important, but they are amply served by preserving the power to
commit for civil contempt and by recognizing that many contempts
are not serious crimes, but petty offenses not within the jury
trial provisions of the Constitution. When a serious contempt is at
issue, considerations of efficiency must give way to the more
fundamental interest of ensuring the even-handed exercise of
judicial power. In isolated instances, recalcitrant or irrational
juries may acquit, rather than apply the law to the case before
them. Our system has wrestled with this problem for hundreds of
years, however, and important safeguards have been devised to
minimize miscarriages of justice through the malfunctioning of the
jury system. Perhaps to some extent we sacrifice efficiency,
expedition, and economy, but the choice in favor of jury trial has
been made, and retained, in the Constitution. We see no sound
reason in logic or policy not to apply it in the area of criminal
contempt.
Some special mention of contempts in the presence of the judge
is warranted. Rule 42(a) of the Federal Rules of Criminal Procedure
provides that
"[a] criminal contempt may be punished summarily if the judge
certifies that he saw or heard the conduct constituting the
contempt, and that it was committed in the actual presence of the
court."
This rule reflects the common law rule which is widely, if not
uniformly, followed in the States. Although Rule 42(a) is based in
part on the premise that it is not necessary specially to present
the facts of a contempt which occurred in the very presence of
the
Page 391 U. S. 210
judge, it also rests on the need to maintain order and a
deliberative atmosphere in the courtroom. The power of a judge to
quell disturbance cannot attend upon the impaneling of a jury.
There is, therefore, a strong temptation to make exception to the
rule we establish today for disorders in the courtroom. We are
convinced, however, that no such special rule is needed. It is old
law that the guarantees of jury trial found in Article III and the
Sixth Amendment do not apply to petty offenses. Only today we have
reaffirmed that position.
Duncan v. Louisiana, supra at
391 U. S.
159-162. By deciding to treat criminal contempt like
other crimes insofar as the right to jury trial is concerned, we
similarly place it under the rule that petty crimes need not be
tried to a jury.
IV
Petitioner Bloom was held in contempt of court for filing a
spurious will for probate. At his trial it was established that the
putative testator died on July 6, 1964, and that, after that date
Pauline Owens, a practical nurse for the decedent, engaged Bloom to
draw and execute a will in the decedent's name. The will was dated
June 21, 1964. Bloom knew the will was false when he presented it
for admission in the Probate Division of the Circuit Court of Cook
County. The State's Attorney of that county filed a complaint
charging Bloom with contempt of court. At trial petitioner's timely
motion for a jury trial was denied. Petitioner was found guilty of
criminal contempt and sentenced to imprisonment for 24 months. On
direct appeal to the Illinois Supreme Court, his conviction was
affirmed. That court held that neither state law nor the Federal
Constitution provided a right to jury trial in criminal contempt
proceedings.
35 Ill. 2d
255,
220 N.E.2d
475 (1966). We granted certiorari, 386 U.S. 1003 (1967).
Petitioner Bloom contends that the conduct for which he was
convicted of criminal contempt constituted the
Page 391 U. S. 211
crime of forgery under Ill.Rev.Stat., c. 38, § 17-3. Defendants
tried under that statute enjoy a right to jury trial and face a
possible sentence of one to 14 years, a fine not to exceed $1,000,
or both. Petitioner was not tried under this statute, but rather
was convicted of criminal contempt. Under Illinois law, no maximum
punishment is provided for convictions for criminal contempt.
People v. Stollar, 31 Ill. 2d
154,
201 N.E.2d 97
(1964). In
Duncan, we have said that we need not settle
"the exact location of the line between petty offenses and serious
crimes," but that "a crime punishable by two years in prison is . .
. a serious crime, and not a petty offense."
Supra at
391 U. S. 161,
391 U. S. 162.
Bloom was sentenced to imprisonment for two years. Our analysis of
Barnett, supra, and
Cheff v. Schnackenberg,
384 U. S. 373,
makes it clear that criminal contempt is not a crime of the sort
that requires the right to jury trial regardless of the penalty
involved. Under the rule in
Cheff, when the legislature
has not expressed a judgment as to the seriousness of an offense by
fixing a maximum penalty which may be imposed, we are to look to
the penalty actually imposed as the best evidence of the
seriousness of the offense.
See Duncan, supra, at
391 U. S. 162,
n. 35. Under this rule, it is clear that Bloom was entitled to the
right to trial by jury, and it was constitutional error to deny him
that right. Accordingly, we reverse and remand for proceedings not
inconsistent with this opinion.
Reversed and remanded.
[
Footnote 1]
Many more cases have supported the rule that courts may punish
criminal contempt summarily, or accepted that rule without
question.
See cases collected in
Green v. United
States, 356 U. S. 165,
356 U. S. 191,
n. 2 (1958) (concurring opinion);
United States v.
Barnett, 376 U. S. 681,
376 U. S. 694,
n. 12 (1964). The list of the Justices of this Court who have
apparently subscribed to this view is long.
See Green v. United
States, supra at
356 U. S.
192.
The argument that the power to punish contempt was an inherent
power of the courts not subject to regulation by Congress was
rejected in
Michaelson v. United States ex rel. Chicago, St.
P., M. & O. R. Co., 266 U. S. 42,
266 U. S. 65-67
(1924), which upheld the maximum sentence and jury trial provisions
of the Clayton Act.
Cf. Larremore, Constitutional
Regulation of Contempt of Court, 13 Harv.L.Rev. 615 (1900).
[
Footnote 2]
Blackstone's description of the common law practice in contempt
cases appears in 4 Commentaries on the Laws of England 286-287:
"The process of attachment for these and the like contempts must
necessarily be as ancient as the laws themselves; for laws without
a competent authority to secure their administration from
disobedience and contempt would be vain and nugatory. A power,
therefore, in the supreme courts of justice to suppress such
contempts by an immediate attachment of the offender results from
the first principles of judicial establishments, and must be an
inseparable attendant upon every superior tribunal."
"
* * * *"
"If the contempt be committed in the face of the court, the
offender may be instantly apprehended and imprisoned, at the
discretion of the judges, without any further proof or examination.
But in matters that arise at a distance, and of which the court
cannot have so perfect a knowledge, unless by the confession of the
party or the testimony of others, if the judges upon affidavit see
sufficient ground to suspect that a contempt has been committed,
they either make a rule on the suspected party to show cause why an
attachment should not issue against him or, in very flagrant
instances of contempt, the attachment issues in the first instance;
as it also does if no sufficient cause be shown to discharge, and
thereupon the court confirms and makes absolute the original
rule."
And see id. at 280. A similar account is contained in 2
W. Hawkins, A Treatise of the Pleas of the Crown 4, 141 (2d ed.
1724).
Of course,
"Blackstone's Commentaries are accepted as the most satisfactory
exposition of the common law of England. . . . [U]ndoubtedly the
framers of the Constitution were familiar with it."
Schick v. United States, 195 U. S.
65,
195 U. S. 69
(1904).
Blackstone, however, was acutely aware that this practice was a
significant departure from ordinary principles:
"It cannot have escaped the attention of the reader that this
method of making the defendant answer upon oath to a criminal
charge is not agreeable to the genius of the common law in any
other instance. . . ."
4 Blackstone,
supra, at 287.
The unalloyed doctrine that, by "immemorial usage," all criminal
contempts could be tried summarily seems to derive from Mr. Justice
(later Chief Justice) Wilmot's undelivered opinion in
The King
v. Almon (1765), first brought to public light by the
posthumous publication of his papers, Wilmot, Notes 243 (1802),
reprinted in 97 Eng.Rep. 94. Wilmot's opinion appears to have been
the source of Blackstone's view, but did not become an
authoritative part of the law of England until
Rex v.
Clement, 4 Barn. & Ald. 218, 233, 106 Eng.Rep. 918, 923
(K.B. 1821).
Cf. Roh v. Garvan, 2 Atk. 469, 26 Eng.Rep.
683 (Ch. 1742).
See discussion in 8 How.St.Tr. 14, 22-23,
49-59, and the subsequent civil action,
Burdett v. Abbot,
14 East 1, 138, 104 Eng.Rep. 501, 554 (K.B. 1811); 4 Taunt. 401,
128 Eng.Rep. 384 (Ex. 1812); 5 Dow 165, 202, 3 Eng.Rep. 1289, 1302
(H.L. 1817). The historical authenticity of this view has been
vigorously challenged, initially by Solly-Flood, The Story of
Prince Henry of Monmouth and Chief Justice Gascoign, 3 Transactions
of the Royal Historical Society (N.S.) 47, 61-64, 147150 (1886).
This led to the massive reappraisal of the contempt power
undertaken by Sir John Fox:
The King v. Almon, Pts. 1
& 2, 24 L.Q.Rev. 184, 266 (1908); The Summary Process to Punish
Contempt, Pts. 1 & 2, 25 L.Q.Rev. 238, 354 (1909);
Eccentricities of the Law of Contempt of Court, 36 L.Q.Rev. 394
(1920); The Nature of Contempt of Court, 37 L.Q.Rev.191 (1921); The
Practice in Contempt of Court Cases, 38 L.Q.Rev. 185 (1922); The
Writ of Attachment, 40 L.Q.Rev. 43 (1924); J. Fox, The History of
Contempt of Court (1927). On contempt generally,
see R.
Goldfarb, The Contempt Power (1963).
Learned writers have interpreted Fox's work as showing that,
until the late 17th or early 18th centuries, apart from the
extraordinary proceedings of the Star Chamber, English courts
neither had, nor claimed, power to punish contempts, whether in or
out of court, by summary process. Frankfurter Landis, Power of
Congress over Procedure in Criminal Contempts in "Inferior" Federal
Courts -- A Study in Separation of Powers, 37 Harv.L.Rev. 1010,
1042-1052 (1924).
Cf. J. Oswald, Contempt of Court 3, n.
(
g) (Robertson ed., 1910). Fox's own appraisal of the
evidence, however, seems to have been that, prior to the 18th
century, there probably was no valid basis for summary punishment
of a libel on the court by a stranger to the proceedings, but that
summary punishment for contempts outside the court consisting in
resistance to a lawful process or order of the court, or
contumacious behavior by an officer of the court, was probably
permissible. J. Fox, The History of Contempt of Court 4, 49-50,
98-100, 108-110, 208-209 (1927); Fox, The Summary Process to Punish
Contempt, Pt. 1, 25 L.Q.Rev. 238, 244-246 (1909). Although jury
trials had been provided in some instances of contempt in the face
of the court, Fox does not seem to have questioned that such
contempts could be punished summarily. J. Fox, The History of
Contempt of Court 50 (1927).
We do not find the history of criminal contempt sufficiently
simple or unambiguous to rest rejection of our prior decisions
entirely on historical grounds, particularly since the Court has
been aware of Solly-Flood's and Fox's work for many years.
See
Gompers v. United States, 233 U. S. 604,
233 U. S. 611
(1914);
Michaelson v. United States ex rel. Chicago, St. P., M.
& O. R. Co., 266 U. S. 42,
266 U. S. 66-67
(1924);
Green v. United States, 356 U.
S. 165,
356 U. S. 185,
n. 18 (1958). In any event, the ultimate question is not whether
the traditional doctrine is historically correct, but whether the
rule that criminal contempts are never entitled to a jury trial is
a necessary or an acceptable construction of the Constitution.
Cf. Thompson v. Utah, 170 U. S. 343,
170 U. S. 350
(1898).
[
Footnote 3]
See also New Orleans v. The Steamship
Co., 20 Wall. 387,
87 U. S. 392
(1874) ("[c]ontempt of court is a specific criminal offence");
O'Neal v. United States, 190 U. S. 36,
190 U. S. 38 (1903)
(an adjudication for contempt is "in effect a judgment in a
criminal case");
Bessette v. W. B. Conkey Co.,
194 U. S. 324,
194 U. S. 336
(1904) (that criminal contempt proceedings are "criminal in their
nature has been constantly affirmed");
Michaelson v. United
States ex rel. Chicago, St. P., M. & O. R. Co.,
266 U. S. 42,
266 U. S. 66
(1924) ("[t]he fundamental characteristics of both [crimes and
criminal contempts] are the same");
Green v. United
States, 356 U. S. 165,
356 U. S. 201
(1958) (BLACK, J., dissenting) ("criminal contempt is manifestly a
crime by every relevant test of reason or history"). The Court also
held in
Bessette, supra, at
194 U. S. 335,
that criminal contempt "cannot be considered as an infamous
crime."
[
Footnote 4]
"That contempt power over counsel, summary or otherwise, is
capable of abuse is certain. Men who make their way to the bench
sometimes exhibit vanity, irascibility, narrowness, arrogance, and
other weaknesses to which human flesh is heir."
Sacher v. United States, 343 U. S.
1,
343 U. S. 12
(1952).
See also Ex parte Hudgings, 249 U.
S. 378 (1919);
Nye v. United States,
313 U. S. 33
(1941);
Cammer v. United States, 350 U.
S. 399 (1956).
[
Footnote 5]
Section 1 of the Act of 1831 stated:
"That the power of the several courts of the United States to
issue attachments and inflict summary punishments for contempts of
court, shall not be construed to extend to any cases except the
misbehaviour of any person or persons in the presence of the said
courts, or so near thereto as to obstruct the administration of
justice, the misbehaviour of any of the officers of the said courts
in their official transactions, and the disobedience or resistance
by any officer of the said courts, party, juror, witness, or any
other person or persons, to any lawful writ, process, order, rule,
decree, or command of the said courts."
Fox concluded that the 1831 Act was in accord with the general
common law of England.
See J. Fox, The History of Contempt
of Court 208 (1927). Section 2 of the Act provided for prosecution
by the regular criminal procedures of those guilty of obstruction
of justice.
See generally Nelles & King, Pts. 1 &
2, Contempt by Publication in the United States, 28 Col.L.Rev. 401,
525 (1928).
[
Footnote 6]
At a later date, when passing the Clayton Act, Congress focused
its attention on conduct which was not only criminally contemptuous
but which also constituted other crimes under federal or state law.
Contempts of this nature, unless committed in the presence of the
court or so near thereto as to obstruct justice, or unless they
involved disobedience to a court writ, process, order, or decree in
a case brought by the United States, were required to be tried to a
jury, and the possible punishment was limited to six months, a fine
of $1,000, or both. 38 Stat. 738, § 21, now 18 U.S.C. § 402.
Circumscription of the contempt power was carried further in the
Norris-LaGuardia Act, which extended the right to jury trial to
contempt cases arising out of injunctions issued in labor disputes.
47 Stat. 72, § 11, now 18 U.S.C. § 3692. The Civil Rights Act of
1957, 71 Stat. 638, § 151, 42 U.S.C. § 1995, provides a right to a
de novo trial by jury to all criminal contemnors convicted
in cases arising under the Act who are fined in excess of $300 or
sentenced to imprisonment for more than 45 days, exception being
made for contempts committed in the presence of the court or so
near thereto as to obstruct justice, and misbehavior, misconduct,
or disobedience of any officer of the court. The Civil Rights Act
of 1964, 78 Stat. 268, § 1101, 42 U.S.C. § 2000h, provides a right
to jury trial in all proceedings for criminal contempt arising
under the Act, and limits punishment to a fine of $1,000 or
imprisonment for six months. Again, exception is made for contempts
committed in the presence of the court, or so near thereto as to
obstruct justice, and for the misbehavior, misconduct, or
disobedience of court officers. Proof of criminal
mens rea
is specifically required.
See Goldfarb & Kurzman,
Civil Rights v. Civil Liberties: The Jury Trial Issue, 12
U.C.L.A.L.Rev. 486, 496-506 (1965).
[
Footnote 7]
It has also been held that a defendant in criminal contempt
proceedings is eligible for executive pardon,
Ex parte
Grossman, 267 U. S. 87
(1925), and entitled to the protection of the statute of
limitations,
Gompers v. United States, 233 U.
S. 604,
233 U. S.
611-613 (1914);
Pendergast v. United States,
317 U. S. 412
(1943).
[
Footnote 8]
Limitations on the maximum penalties for criminal contempt are
common in the States. According to Note, Constitutional Law: The
Supreme Court Constructs a Limited Right to Trial by Jury for
Federal Criminal Contemnors, 1967 Duke L.J. 632, 654, n. 84, in 26
States, the maximum penalty that can be imposed in the absence of a
jury trial is six months or less, in three States a jury trial must
be provided upon demand of the defendant, in three other States the
maximum penalty cannot exceed one year (this group of States
includes Illinois, however, which, as the present case
demonstrates, has no such limitation), in 15 States, there is
either no limitation upon the maximum penalty which may be imposed
or else that maximum exceeds one year, and finally, in three
States, while there are statutes relating to particular kinds of
contempt, there are no general contempt provisions. Independent
examination suggests that the available materials concerning the
law of contempt in some States are such that precise computation is
difficult. It is clear, however, that punishment for contempt is
limited to one year or less in over half the States.
Most other Western countries seem to be highly restrictive of
the latitude given judges to try their own contempts without a
jury.
See Jann, Contempt of Court in Western Germany, 8
Am.U.L.Rev. 34 (1959); Bigelow, Contempt of Court, 1 Crim. L.Q. 475
(1959); Pekelis, Legal Techniques and Political Ideologies: A
Comparative Study, 41 Mich.L.Rev. 665 (1943). By contrast, there
was no right of appeal against a conviction for criminal contempt
in England until the Administration of Justice Act, 1960, 8 & 9
Eliz. 2, c. 65.
See Harnon, Civil and Criminal Contempts
of Court, 25 Mod.L.Rev. 179 (1962).
MR. JUSTICE FORTAS, concurring.
*
I join the judgments and opinions of the Court in these cases
because I agree that the Due Process Clause of the Fourteenth
Amendment requires that the States accord the right to jury trial
in prosecutions for offenses
Page 391 U. S. 212
that are not petty. A powerful reason for reaching this
conclusion is that the Sixth Amendment to the Constitution
guarantees the right to jury trial in federal prosecutions for such
offenses. It is, of course, logical and reasonable that, in
seeking, from time to time, the content of "due process of law," we
should look to and be guided by the great Bill of Rights in our
Constitution. Considerations of the practice of the forum States,
of the States generally, and of the history and office of jury
trials are also relevant to our task. I believe, as my Brother
WHITE's opinion for the Court in
Duncan v. Louisiana
persuasively argues, that the right to jury trial in major
prosecutions, state as well as federal, is so fundamental to the
protection of justice and liberty that "due process of law" cannot
be accorded without it.
It is the progression of history, and especially the deepening
realization of the substance and procedures that justice and the
demands of human dignity require, which has caused this Court to
invest the command of "due process of law" with increasingly
greater substance. The majority lists outstanding stations in this
progression,
ante at
391 U. S.
147-148. This Court has not been alone in its
progressive recognition of the content of the great phrase which my
Brother WHITE describes as "spacious language" and Learned Hand
called a "majestic generality." The Congress, state courts, and
state legislatures have moved forward with the advancing conception
of human rights in according procedural as well as substantive
rights to individuals accused of conflict with the criminal
laws.**
Page 391 U. S. 213
But although I agree with the decision of the Court, I cannot
agree with the implication,
see ante at
391 U. S.
158-159, n. 30, that the tail must go with the hide:
that, when we hold, influenced by the Sixth Amendment, that "due
process" requires that the States accord the right of jury trial
for all but petty offenses, we automatically import all of the
ancillary rules which have been or may hereafter be developed
incidental to the right to jury trial in the federal courts. I see
no reason whatever, for example, to assume that our decision today
should require us to impose federal requirements such as unanimous
verdicts or a jury of 12 upon the States. We may well conclude that
these and other features of federal jury practice are by no means
fundamental -- that they are not essential to due process of law --
and that they are not obligatory on the States.
I would make these points clear today. Neither logic nor history
nor the intent of the draftsmen of the Fourteenth Amendment can
possibly be said to require that the Sixth Amendment or its jury
trial provision be applied to the States together with the total
gloss that this Court's decisions have supplied. The draftsmen of
the Fourteenth Amendment intended what they said, not more or less:
that no State shall deprive any person of life, liberty, or
property without due process of law. It is ultimately the duty of
this Court to interpret, to ascribe specific meaning to this
phrase. There is no reason whatever for us to conclude that, in so
doing, we are bound slavishly to follow not only the Sixth
Amendment but all of its bag and baggage, however securely or
insecuredly affixed they may be by law and precedent to federal
proceedings. To take this course, in my judgment, would be not only
unnecessary but mischievious, because it would inflict a serious
blow upon the principle of federalism. The Due Process Clause
commands us to apply its great standard to state court
proceedings
Page 391 U. S. 214
to assure basic fairness. It does not command us rigidly and
arbitrarily to impose the exact pattern of federal proceedings upon
the 50 States. On the contrary, the Constitution's command, in my
view, is that, in our insistence upon state observance of due
process, we should, so far as possible, allow the greatest latitude
for state differences. It requires, within the limits of the lofty
basic standards that it prescribes for the States as well as the
Federal Government, maximum opportunity for diversity and minimal
imposition of uniformity of method and detail upon the States. Our
Constitution sets up a federal union, not a monolith.
This Court has heretofore held that various provisions of the
Bill of Rights such as the freedom of speech and religion
guarantees of the First Amendment, the prohibition of unreasonable
searches and seizures in the Fourth Amendment, the privilege
against self-incrimination of the Fifth Amendment, and the right to
counsel and to confrontation under the Sixth Amendment
"are all to be enforced against the States under the Fourteenth
Amendment according to the same standards that protect those
personal rights against federal encroachment."
Malloy v. Hogan, 378 U. S. 1,
378 U. S. 10
(1964);
Pointer v. Texas, 380 U.
S. 400,
380 U. S. 406
(1965);
Miranda v. Arizona, 384 U.
S. 436,
384 U. S. 464
(1966). I need not quarrel with the specific conclusion in those
specific instances. But unless one adheres slavishly to the
incorporation theory, body and substance, the same conclusion need
not be superimposed upon the jury trial right. I respectfully but
urgently suggest that it should not be. Jury trial is more than a
principle of justice applicable to individual cases. It is a system
of administration of the business of the State. While we may
believe (and I do believe) that the right of jury trial is
fundamental, it does not follow that the particulars of according
that right must be uniform. We
Page 391 U. S. 215
should be ready to welcome state variations which do not impair
-- indeed, which may advance -- the theory and purpose of trial by
jury.
* [This opinion applies also to No. 410,
Duncan v.
Louisiana, ante p.
391 U. S. 145]
**
See, e.g., Bail Reform Act of 1966, Pub.L. 89-465,
18 U.S.C. § 3141
et seq. (1964 ed., Supp. II); Criminal
Justice Act of 1964, Pub.L. 88-455, 18 U.S.C. § 3006A; Jury
Selection and Service Act of 1968, Pub.L. 9274, 82 Stat. 53;
Schowgurow v. State, 240 Md. 121, 213 A.2d 475 (1965);
Note, The Proposed Penal Law of New York, 64 Col.L.Rev. 1469
(1964).
MR. JUSTICE HARLAN, whom MR. JUSTICE STEWART joins,
dissenting.
I dissent for the reasons expressed in my dissenting opinion in
Duncan. v. Louisiana, ante, p.
391 U. S. 171,
and in my separate opinion in
Cheff v. Schnackenberg,
384 U. S. 373,
384 U. S. 380.
See also United States v. Barnett, 376 U.
S. 681;
Green v. United States, 356 U.
S. 165.
This case completes a remarkable circle. In
Duncan,
supra, the Court imposed on the States a rule of procedure
that was neither shown to be fundamental to procedural fairness nor
held to be part of the originally understood content of the
Fourteenth Amendment. The sole justification was that the rule was
found in the Bill of Rights. The Court now, without stating any
additional reasons, imposes on the States a related rule that, as
recently as
Cheff v. Schnackenberg, supra, the Court
declined to find in the Bill of Rights. That the words of Mr.
Justice Holmes,* inveighing against a century of "unconstitutional
assumption of [state] powers by the Courts of the United States" in
derogation of the central premise of our Constitution, should be
invoked to support. the Court's action here can only be put down to
the vagaries of the times.
*
Black & White Taxicab & Transfer Co. v. Brown
& Yellow Taxicab & Transfer Co., 276 U.
S. 518,
276 U. S. 532,
at
276 U. S. 533
(dissenting opinion, quoted
ante at
391 U. S.
198).