The Federal Trade Commission (FTC) following hearings issued a
cease-and-desist order against a company "and its officers, agents,
representatives and employees" prohibiting the continuance of
practices it found illegal. The company petitioned the Court of
Appeals to review and set aside the order. Claiming that the
company continued to violate the order, the FTC moved for a
pendente lite compliance order, which the court issued.
Following opinions by the Court of Appeals upholding the FTC's
jurisdiction to enter the order and affirming on the merits, the
FTC petitioned that court to enter a show cause order against the
company for contempt of the
pendente lite order and,
later, rules were issued against petitioner, who had long since
severed his connections as a company official, and others to show
cause why they should not be held in criminal contempt for having
aided and abetted the company to violate the
pendente lite
order. Petitioner's demand for a jury trial was denied. Following a
hearing, he was found guilty of committing acts of contempt
violating the
pendente lite order during the period from
its entry to the entry of final judgment, and was given a six
months' sentence. This Court granted the petition for certiorari
limited to review of the question whether, after denial of a demand
for a jury, a six months' imprisonment sentence is permissible
under Article III and the Sixth Amendment of the Constitution.
Held: The judgment is affirmed. Pp.
384 U. S.
375-384.
341 F.2d 548, affirmed.
MR. JUSTICE CLARK, joined by THE CHIEF JUSTICE, MR. JUSTICE
BRENNAN, and MR. JUSTICE FORTAS, concluded that:
1. The Court of Appeals had the power to punish for criminal
contempt the disobedience of its interlocutory order. Pp.
384 U. S.
377-378.
(a) Petitioner's contention that contempt proceedings stemming
from administrative law enforcement proceedings are civil, rather
than criminal, is irrelevant, since a jury trial is not required in
civil contempt proceedings.
Shillitani v. United States,
ante, p.
384 U. S. 364. P.
384 U. S.
377.
Page 384 U. S. 374
(b) The purpose of the proceedings against petitioner could in
no event have been remedial,
i.e., civil in nature, in
view of his severance long before the contempt proceedings of all
connections with the company, which, moreover, no longer engaged in
the business functions which the alleged contempt violations
involved. P.
384 U. S.
377.
(c) The basis of the contempt charged against petitioner was
disobedience of the order of the court, not that of the FTC. P.
384 U. S.
378.
2. Even assuming, contrary to
United States v. Barnett,
376 U. S. 681,
that criminal contempt proceedings are criminal actions falling
within the requirements of Article III and the Sixth Amendment of
the Constitution, the right to a jury trial does not extend to
petty offenses, such as the offense involved here. Pp.
384 U. S.
378-380.
(a) According to 18 U.S.C. § 1 (1964 ed.), any misdemeanor the
penalty for which does not exceed six months' imprisonment is a
"petty offense." P.
384 U.S.
379.
(b) Since petitioner received a six months' sentence and the
nature of criminal contempt does not necessarily require its being
excluded from the category of petty offenses, petitioner's offense
can be treated as "petty." P.
384 U. S.
380.
(c) In the exercise of the Court's supervisory power and under
the peculiar power of federal courts to revise sentences in
contempt cases, it is ruled that criminal contempt sentences
exceeding six months may not be imposed absent a jury trial or
waiver thereof, though a reviewing court may revise sentences in
contempt cases tried with or without juries. P.
384 U. S.
380.
MR. JUSTICE HARLAN, joined by MR. JUSTICE STEWART, concluded
that:
1. The prosecution of criminal contempts is not subject to the
grand and petit jury requirements of Article III, § 2, of the
Constitution and the Fifth and Sixth Amendments.
Green v.
United States, 356 U. S. 165. Pp.
384 U. S.
381-382.
2. The prevailing opinion's new supervisory power rule may
generate difficulty for federal courts seeking to implement locally
unpopular decrees and create an administrative problem for the
trial judge, who in deciding whether to proffer a jury trial must
anticipate the sentence, which in turn depends on the evidence
revealed in the trial. P.
384 U. S.
382.
Page 384 U. S. 375
MR. JUSTICE CLARK announced the judgment of the Court and
delivered an opinion in which THE CHIEF JUSTICE, MR. JUSTICE
BRENNAN and MR. JUSTICE FORTAS join.
This is a companion case to No. 412,
Shillitani v. United
States, and No. 442,
Pappadio
v. United States, 384 U. S. 364.
Unlike those cases, this is a criminal contempt proceeding.
Upon petition of the Federal Trade Commission, Cheff was
charged, along with Holland Furnace Company and 10 other of its
officers, with criminal contempt of the Court of Appeals for the
Seventh Circuit. The alleged contemnors were tried before a panel
of three judges of the Court of Appeals without a jury. The
corporation and three of its officers, including Cheff, were found
guilty of violating a previous order of that court. Cheff, a former
president and chairman of the board of Holland, was sentenced to
six months' imprisonment; the other two officers were fined $500
each; and the corporation was fined $100,000. The remaining eight
individuals were acquitted. 341 F.2d 548. Cheff and Holland
petitioned for certiorari. We denied Holland's petition,
Holland Furnace Co. v. Schnackenberg, 381 U.S. 924, and
granted Cheff's, limited to a review of the question whether, after
a denial of a demand for a jury, a sentence of imprisonment of six
months is constitutionally permissible under Article III and the
Sixth Amendment.
Cheff v. Schnackenberg, 382 U.S. 917. We
hold that Cheff was not entitled to a jury trial, and affirm the
judgment.
Page 384 U. S. 376
I
The case had its inception in proceedings before the Federal
Trade Commission where, in 1954, complaints were issued against
Holland charging it with unfair methods of competition and
deceptive trade practices in connection with the sale of its
products. After extensive hearings, the Commission issued a "cease
and desist" order against Holland "and its officers, agents,
representatives and employees" prohibiting the continuance of
practices the Commission found illegal.
In the Matter of
Holland Furnace Co., 55 FTC 55 (1958).
Holland petitioned the Court of Appeals to review and set aside
the order of the Commission. Soon thereafter, the Commission,
claiming that Holland was continuing to violate its order, moved
the Court of Appeals for a
pendente lite order requiring
compliance. On August 5, 1959, the court issued an order commanding
Holland to
"obey and comply with the order to cease and desist . . . unless
and until said order shall be set aside upon review by this Court
or by the Supreme Court of the United States. . . ."
This order forms the basis of this criminal contempt proceeding.
Meanwhile, Holland's petition for review was decided adversely to
the corporation. In separate opinions, the Court of Appeals upheld
the jurisdiction of the Commission to enter its "cease and desist"
order,
Holland Furnace Co. v. FTC, 269 F.2d 203 (1959),
and affirmed on the merits, 295 F.2d 302 (1961).
In March, 1962, the Commission petitioned the Court of Appeals
to enter a show cause order against Holland for contempt of its
pendente lite order. A rule was issued, and attorneys
appointed to prosecute on behalf of the court. Thereafter, in April
1963, rules were issued against Cheff and the other officers, as
individuals, to show cause why they should not be held in criminal
contempt
"by reason of having knowingly, wilfully and
Page 384 U. S. 377
intentionally caused, and aided and abetted in causing,
respondent Holland Furnace Company to violate and disobey, and fail
and refuse to comply with"
the order of August 5, 1959. Cheff demanded a jury trial, which
was denied, and following a full hearing extending over a 10-day
period the court found him guilty. As we have stated, a sentence of
six months was imposed. In accordance with the limited grant of
certiorari, there is no issue here as to the sufficiency of the
hearing, excepting the absence of a jury.
II
Cheff first contends that contempt proceedings in the Court of
Appeals which stem from administrative law enforcement proceedings
are civil, rather than criminal, in nature. This may be true where
the purpose of the proceeding is remedial.
Cf. Shillitani v.
United States, ante, p.
384 U. S. 364.
Within the context of the question before us, however, the
contention is irrelevant, for a jury trial is not required in civil
contempt proceedings, as we specifically reaffirm in
Shillitani, supra. In any event, the contention is without
merit. The purpose of the proceedings against Cheff could not have
been remedial for he had severed all connections with Holland in
1962, long before the contempt proceedings were instituted against
him. He had no control whatever over the corporation, and could no
longer require any compliance with the order of the Commission.
Moreover, as Cheff himself points out, the corporation "had
completely withdrawn from the business of replacement of furnaces,
which is the area in which the violation is alleged." There was,
therefore, an "absence of any necessity of assuring future
compliance" which made the six-month sentence "entirely punitive."
Brief for Petitioner, p. 16.
There can be no doubt that the courts of appeals have the power
to punish for contempt. 18 U.S.C. § 401
Page 384 U. S. 378
(1964 ed.).
See e.g., cases cited in
United States
v. Barnett, 376 U. S. 681,
376 U. S. 694,
n. 12 (1964). And it matters not that the contempt arises
indirectly from proceedings of an administrative agency. Cheff was
found in contempt of the Court of Appeals, not of the Commission.
The sole ground for the contempt proceedings is stated in the
initial order served on Cheff and the other parties to show cause
why they should not be adjudged in criminal contempt of
that court, for violations of
that court's
pendente lite order. Indeed, Cheff's answer itself
verified that he had not violated, disobeyed, and failed and
refused to comply with "
an order of the United States Court of
Appeals for the Seventh Circuit entered on August 5, 1959. . .
." (Italics added.) In addition, the Court of Appeals itself was
quite specific in limiting the contempt charges to "cover the
period from August 5, 1959, to the entry of the final judgment [in
October, 1961] by this court." 341 F.2d at 550. As the court
clearly had the authority to enter its interlocutory order, Federal
Trade Commission Act, § 5, 38 Stat. 719, as amended, 15 U.S.C. §
45(c) (1964 ed.), it follows that the court has the power to punish
for contempt any disobedience of that order.
Cheff's next and chief contention is that criminal contempt
proceedings are criminal actions falling within the requirements of
Article III and the Sixth Amendment of the Constitution.
* Only two Terms
ago, we held to the contrary in
United States v. Barnett,
supra; however, some members of the Court were of the view
there that, without regard to the seriousness of the offense,
punishment by summary trial without a jury
Page 384 U. S. 379
would be constitutionally limited to that penalty provided for
petty offenses. 376 U.S. at
376 U. S. 694,
n. 12. Cheff, however, would have us hold that the right to jury
trial attaches in all criminal contempts and not merely in those
which are outside the category of "petty offenses."
Cheff's argument is unavailing, for we are constrained to view
the proceedings here as equivalent to a procedure to prosecute a
petty offense, which under our decisions does not require a jury
trial. Over 75 years ago, in
Callan v. Wilson,
127 U. S. 540,
127 U. S. 557
(1888), this Court stated that "in that class or grade of offences
called "petty offences," which, according to the common law, may be
proceeded against summarily in any tribunal legally constituted for
that purpose," a jury trial is not required. And as late as 1937,
the Court reiterated in
District of Columbia v. Clawans,
300 U. S. 617,
300 U. S. 624,
that:
"It is settled by the decisions of this Court . . . that the
right of trial by jury . . . does not extend to every criminal
proceeding. At the time of the adoption of the Constitution, there
were numerous offenses, commonly described as 'petty,' which were
tried summarily without a jury. . . ."
See also Natal v. Louisiana, 139 U.
S. 621 (1891);
Lawton v. Steele, 152 U.
S. 133,
152 U. S.
141-142 (1894);
Schick v. United States,
195 U. S. 65,
195 U. S. 68-72
(1904);
District of Columbia v. Colts, 282 U. S.
63,
292 U. S. 72-73
(1930). Indeed, Mr. Justice Goldberg, joined by THE CHIEF JUSTICE
and
MR. JUSTICE DOUGLAS, took the position in his dissenting opinion
in
United States v. Barnett, supra, at
376 U. S. 751,
that,
"at the time of the Constitution, all types of 'petty' offenses
punishable by trivial penalties were generally triable without a
jury. This history justifies the imposition without trial by jury
of no more than trivial penalties for criminal contempts."
According to 18 U.S.C. § 1 (1964 ed.), "[a]ny misdemeanor, the
penalty for which does not exceed imprisonment for a period of six
months" is a "petty offense."
Page 384 U. S. 380
Since Cheff received a sentence of six months' imprisonment
(
see District of Columbia v. Clawans, supra, at
300 U. S.
627-628), and since the nature of criminal contempt, an
offense
sui generis, does not, of itself, warrant
treatment otherwise (
cf. District of Columbia v. Colts,
supra), Cheff's offense can be treated only as "petty" in the
eyes of the statute and our prior decisions. We conclude therefore
that Cheff was properly convicted without a jury. At the same time,
we recognize that, by limiting our opinion to those cases where a
sentence not exceeding six months is imposed, we leave the federal
courts at sea in instances involving greater sentences. Effective
administration compels us to express a view on that point.
Therefore, in the exercise of the Court's supervisory power and
under the peculiar power of the federal courts to revise sentences
in contempt cases, we rule further that sentences exceeding six
months for criminal contempt may not be imposed by federal courts
absent a jury trial or waiver thereof. Nothing we have said,
however, restricts the power of a reviewing court, in appropriate
circumstances, to revise sentences in contempt cases tried with or
without juries.
The judgment in this case is
Affirmed.
MR. JUSTICE STEWART, joining Part I of MR. JUSTICE HARLAN's
separate opinion, concurs in the result.
MR. JUSTICE WHITE took no part in the decision of this case.
* The relevant portions of these provisions declare:
"The trial of all Crimes, except in Cases of Impeachment, shall
be by Jury. . . ." Art. III, § 2.
"In all criminal prosecutions, the accused shall enjoy the right
to a speedy and public trial, by an impartial jury. . . ." Sixth
Amendment.
MR. JUSTICE HARLAN, concurring in the result in No. 67 and
dissenting in Nos. 412 and 442.
By the opinions in these cases, two new limitations on the use
of the federal contempt power are inaugurated. In
Cheff,
it is announced that prison sentences for criminal
Page 384 U. S. 381
contempt in a federal court must be limited to six months unless
the defendant is afforded a trial by jury. In
Shillitani
and
Pappadio, an automatic "purge" clause and related
indicia are found to convert a criminal sentence into a civil
sanction which cannot survive the grand jury's expiration. I
believe these limitations are erroneous in reasoning and result
alike.
I
The decision to extend the right to jury trial to criminal
contempts ending in sentences greater than six months is the
product of the views of four Justices who rest that conclusion on
the Court's supervisory power and those of two others who believe
that jury trials are constitutionally required in all but "petty"
criminal contempts. The four Justices who rely on the supervisory
power also find the constitutional question a "difficult" one.
Ante at
384 U. S. 356.
However, as recently as 1958, this Court, in
Green v. United
States, 356 U. S. 165,
unequivocally declared that the prosecution of criminal contempts
was not subject to the grand and petit jury requirements of Art.
III, § 2, of the Constitution and the Fifth and Sixth Amendments.
This doctrine, which was accepted by federal judges in the early
days of the Republic [
Footnote
1] and has been steadfastly adhered to in
Page 384 U. S. 382
case after case in this Court, [
Footnote 2] should be recognized now as a definitive
answer to petitioners' constitutional claims in each of the cases
before us.
The prevailing opinion's new supervisory power rule seems to me
equally infirm. The few sentences devoted to this dictum give no
reason why a six-month limitation is desirable. Nor is there
anything about the sentences actually imposed in these instances
that warrants reappraisal of the present practice in contempt
sentencing. In
Cheff itself, the sentence was for six
months.
Shillitani and
Pappadio involved two-year
sentences, but each was moderated by a purge clause, and seemingly
in neither case were there disputed facts suitable for a jury.
Among the prominent shortcomings of the new rule, which are simply
disregarded, is the difficulty it may generate for federal courts
seeking to implement locally unpopular decrees. Another problem is
in administration: to decide whether to proffer a jury trial, the
judge must now look ahead to the sentence, which itself depends on
the precise facts the trial is to reveal.
Page 384 U. S. 383
In my view, before this Court improvises a rule necessarily
based on pure policy that largely shrugs off history, a far more
persuasive showing can properly be expected.
II
No less remarkable is the Court's upsetting of the sentences in
Shillitani and
Pappadio on the ground that the
jailings were really for civil contempt which cannot endure beyond
the grand jury's term. [
Footnote
3] It can hardly be suggested that the lower courts did not
intend to invoke the criminal contempt power to keep the
petitioners in jail after the grand jury expired; the contrary is
demonstrated by the entire record. [
Footnote 4] Instead, the Court attempts to characterize
the proceedings by a supposed primary or essential "purpose," and
then lops off so much of the sentences as do not conform to that
purpose. What the Court fails to do is to give any reason in
policy, precedent, statute law, or the Constitution for its
unspoken premise that a sentencing judge cannot combine two
purposes into a single sentence of the type here imposed.
Without arguing about which purpose was primary, obviously a
fixed sentence with a purge clause can be said to embody elements
of both criminal and civil contempt. However, so far as the
safeguards of criminal contempt proceedings may be superior to
civil, the petitioners have not been disadvantaged in this regard,
nor do they
Page 384 U. S. 384
claim otherwise. Adding a purge clause to a fixed sentence is a
benefit for the petitioners, not a reason for complaint. Similarly,
the public interest is served by exerting strong pressure to obtain
answers while tailoring the length of imprisonment so that it may
punish the defendant only for his period of recalcitrance, and no
more. I see no reason why a fixed sentence with an automatic purge
clause should be deemed impermissible.
For the foregoing reasons, I would affirm the judgments in all
three cases on the basis of
Green, and leave the authority
of that case unimpaired. [
Footnote
5]
[
Footnote 1]
E.g., Ex parte Burr, 4 Fed.Cas. 791, 797 (No. 2,186)
(C.C.D.C.1823) (Cranch, C.J.):
"[C]ases of contempt of court have never been considered as
crimes within the meaning and intention of the second section of
the third article of the Constitution of the United States, nor
have attachments for contempt ever been considered as criminal
prosecutions within the Sixth Amendment. . . . Many members of the
[Constitutional] Convention were members of the first Congress, and
it cannot be believed that they would have silently acquiesced in
so palpable a violation of the then recent Constitution as would
have been contained in the Seventeenth Section of the Judiciary Act
of 1789 (1 Stat. 73) -- which authorizes all the courts of the
United States 'to punish by fine and imprisonment at the discretion
of the said courts, all contempts of authority in any cause or
hearing before the same' -- if their construction of the
Constitution had been that which has, in this case, been contended
for at the bar."
[
Footnote 2]
See Ex parte Terry, 128 U. S. 289,
128 U. S. 313
(1888) (Harlan, J.);
Savin, Petitioner, 131 U.
S. 267,
131 U. S. 278
(1889) (Harlan, J.);
Eilenbecker v. Plymouth County,
134 U. S. 31,
134 U. S. 36
(1890) (Miller, J.);
Interstate Commerce Comm'n v.
Brimson, 154 U. S. 447,
154 U. S. 489
(1894) (Harlan, J.);
Bessette v. W. B. Conkey Co.,
194 U. S. 324,
194 U. S.
336-337 (1904) (Brewer, J.);
Gompers v. Bucks Stove
& Range Co., 221 U. S. 418,
221 U. S. 450
(1911) (Lamar, J.);
Gompers v. United States, 233 U.
S. 604,
233 U. S.
610-611 (1914) (Holmes, J.);
Ex parte Hudgings,
249 U. S. 378,
249 U. S. 383
(1919) (White, C.J.);
Myers v. United States, 264 U. S.
95,
264 U. S.
104-105 (1924) (McReynolds, J.);
Michaelson v.
United States, 266 U. S. 42,
266 U. S. 67
(1924) (Sutherland, J.);
Ex parte Grossman, 267 U. S.
87,
267 U. S.
117-118 (1925) (Taft, C.J.);
Fisher v. Pace,
336 U. S. 155,
336 U. S.
159-160 (1949) (Reed, J.);
Offutt v. United
States, 348 U. S. 11,
348 U. S. 14
(1954) (Frankfurter, J.).
[
Footnote 3]
This question was never raised in
Pappadio nor
encompassed by the limited grant of certiorari in that case,
see 382 U.S. 916; in
Shillitani, where the issue
is properly before the Court, petitioner, filed a certiorari
petition discussing the point but tendered no brief on the merits
on any phase of the case.
[
Footnote 4]
For example, in each case, the Judgment and Commitment states
that "the defendant is guilty of criminal contempt," and orders him
committed "for a period of Two (2) Years, or until further order of
this Court," should the questions be answered within that period
before the grand jury expires.
[
Footnote 5]
The two-year sentences imposed on
Shillitani and
Pappadio do not call for the exercise of this Court's
corrective power over contempt sentences,
see Green, 356
U.S. at
356 U. S.
187-189; as has been noted, both sentences carried purge
clauses
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK concurs,
dissenting.
I
I adhere to the view expressed in the dissents in
Green v.
United States, 356 U. S. 165,
356 U. S. 193,
and
United States v. Barnett, 376 U.
S. 681,
376 U. S. 724,
376 U. S. 728,
that criminal contempt is a "crime" within the meaning of Art. III,
§ 2, of the Constitution and a "criminal prosecution" within the
meaning of the Sixth Amendment, both of which guarantee the right
to trial by jury in such cases. [
Footnote 2/1] Punishment for contempt was largely a
minor affair at the time the Constitution was adopted, the lengthy
penalties of the sort imposed today being a relatively recent
innovation. [
Footnote 2/2]
Page 384 U. S. 385
I do not see how we can any longer tolerate an "exception" to
the historic guaranty of a trial by jury when men are sent to
prison for contempt for periods of as long as four years. [
Footnote 2/3] Nor do the consequences of a
contempt conviction necessarily end with the completion of serving
what may be a substantial sentence. Indeed, the Government in other
contexts regards a criminal contempt conviction as the equivalent
of a conviction of other serious crimes.
Thus the Attorney General, in an advisory letter dated January
26, 1966, to Deputy Secretary of Defense Cyrus R. Vance, concluded
that a conviction for criminal contempt could properly be applied
to exclude an Army veteran from burial in Arlington National
Cemetery. Exclusion was based on a regulation (30 Fed.Reg. 8996)
which denies burial in a national cemetery to a person
Page 384 U. S. 386
"who is convicted in a Federal . . . court of a
crime or
crimes, the result of which is . . . a sentence to
imprisonment for 5 years or more. . . ." (Emphasis added.) The
Attorney General stated:
"Criminal contempt is regarded as a 'crime' for most purposes
[citing cases], and no reason is apparent why, for purposes of the
interment regulation, criminal contempt should be distinguished
from any other infraction of law punishable by imprisonment."
There is, in my view, no longer any warrant for regarding
punishment for contempt as a minor matter strictly between the
court and the accused.
"We take a false and one-sided view of history when we ignore
its dynamic aspects. The year books can teach us how a principle or
a rule had its beginnings. They cannot teach us that what was the
beginning shall also be the end."
Cardozo, The Growth of the Law 104-105 (1924).
II
The prevailing opinion today suggests that a jury is required
where the sentence imposed exceeds six months, but not when it is
less than that period. This distinction was first noted in a
footnote in the
Barnett case, where the Court drew an
analogy to prosecutions for "petty offenses," which need not be
tried by jury. [
Footnote 2/4] The
prevailing opinion today seeks to buttress this distinction by
reference to 18 U.S.C. § 1, which declares that an offense the
penalty for which does not exceed six months is a
Page 384 U. S. 387
petty offense. It studiously avoids embracing the view expressed
by MR. JUSTICE HARLAN (
ante at
384 U. S.
380), that in no event does the Constitution require a
jury trial for contempt. But I do not see any lines of
constitutional dimension that separate contempt cases where the
punishment is less than six months from those where the punishment
exceeds that figure. That is a mechanical distinction --
unsupported by our cases in either the contempt field or in the
field of "petty offenses."
The difficulty with that analysis lies in attempting to define a
petty offense merely by reference to the sentence actually imposed.
This does not square with our decisions regarding the "petty
offense" exception to the jury trial requirement. First, the
determination of whether an offense is "petty" also requires an
analysis of the nature of the offense itself; even though short
sentences are fixed for a particular offense a jury trial will be
constitutionally required if the offense is of a serious character.
Second, to the extent that the penalty is relevant in this process
of characterization, it is the
maximum potential sentence,
not the one actually imposed, which must be considered.
The notion that the trial of a petty offense could be conducted
without a jury was first expounded by this Court in
Callan v.
Wilson, 127 U. S. 540
(1888). [
Footnote 2/5] The
Court,
"conceding that there is a class of petty or minor offences not
usually embraced in public criminal statutes, and not of the class
or grade triable at common law by a jury,"
held that the offense charged -- conspiracy -- was not among
them.
Id. at
127 U. S. 555.
In
Natal v.
Louisiana,
Page 384 U. S. 388
139 U. S. 621, the
Court for the first time held a particular offense "petty." This
was a local ordinance which forbade the operation of a private
market within six squares of a public market. The maximum penalty
was a $25 fine (or 30 days' imprisonment in the event the fine was
not paid). [
Footnote 2/6] And in
Schick v. United States, 195 U. S. 65, the
Court held that the knowing purchase of unstamped oleomargarine was
a petty offense. The maximum penalty was a $50 fine.
None of these cases provides much guidance for those seeking to
locate the line of demarcation between petty offenses and those
more serious transgressions for which a jury trial is required. In
District of Columbia v. Colts, 282 U. S.
63, the Court attempted to set out some general
considerations. The offense was reckless driving at an excessive
speed; the maximum punishment under the statute (for a first
offender) was a $100 fine and 30 days in jail. Although the penalty
was light, the Court thought the offense too serious to be regarded
as "petty":
"Whether a given offense is to be classed as a crime, so as to
require a jury trial, or as a petty offense, triable summarily
without a jury, depends primarily upon the nature of the offense.
The offense here charged is not merely
malum prohibitum,
but, in its very nature, is
malum in se. It was an
indictable offense at common law . . . , when horses, instead of
gasoline, constituted the motive power. . . ."
Id. at
282 U. S.
73.
The most recent case is
District of Columbia v.
Clawans, 300 U. S. 617,
where the offense charged was
Page 384 U. S. 389
that of engaging in a particular business without a license. The
maximum penalty was $300 or 90 days in jail. Clawans was given a
$300 fine, but only 60 days in jail. The Court held that this was a
"petty offense," and thus that no jury was required. The offense,
the Court noted, was not a crime at common law; and today it is
only an infringement of local police regulations, the offense being
"relatively inoffensive."
Id. at
300 U. S. 625.
But, the Court added, "the severity of the penalty (is) an element
to be considered."
Ibid. Looking to the maximum penalty
which might be imposed -- 90 days in prison -- the Court concluded
that this was not so severe as to take the offense out of the
category of "petty." Noting that, in England, and even during this
country's colonial period, sentences longer than 90 days were
imposed without a jury trial, the Court assumed that penalties then
thought mild "may come to be regarded as so harsh as to call for
the jury trial."
Id. at
300 U. S. 627.
The Court added:
"[W]e may doubt whether summary trial with punishment of more
than six months' imprisonment, prescribed by some pre-Revolutionary
statutes, is admissible, without concluding that a penalty of
ninety days is too much. Doubts must be resolved, not subjectively
by recourse of the judge to his own sympathy and emotions, but by
objective standards such as may be observed in the laws and
practices of the community taken as a gauge of its social and
ethical judgments."
Id. at
300 U. S.
627-628.
Resolution of the question of whether a particular offense is or
is not "petty" cannot be had by confining the inquiry to the length
of sentence actually imposed. That is only one of many factors. As
the analysis of the Court in
Clawans demonstrates, the
character of the offense itself must be considered. The relevance
of the
Page 384 U. S. 390
maximum possible sentence is that it may be "taken as a gauge of
[the] social and ethical judgments" of the community. Id. at
300 U. S. 628.
Had the potential sentence in the
Clawans case been of
considerable length, the Court presumably would have concluded that
the legislative judgment -- that long sentences were appropriate
for violations of the licensing law -- precluded treating the
offense as "petty." But the converse is not always true: an offense
the penalty for which is relatively light is not necessarily
"petty," as
District of Columbia v. Colts, supra,
demonstrates.
The principal inquiry, then, relates to the character and
gravity of the offense itself. Was it an indictable offense at
common law? Is it
malum in se or
malum
prohibitum? What stigma attaches to those convicted of
committing the offense? [
Footnote
2/7] The
Barnett dictum, though accepting the
relevance of the petty offense cases, errs in assuming that these
considerations are irrelevant. [
Footnote 2/8]
The dictum in
Barnett errs, further, because it looks
to the length of sentence actually imposed, rather than the
potential sentence. The relevance of the sentence, as we have seen,
is that it sheds light on the seriousness with which the community
and the legislature regard the
Page 384 U. S. 391
offense. Reference to the sentence actually imposed in a
particular case cannot serve this purpose. It is presently
impossible to refer to a "maximum" sentence for most contempts, for
there is none; Congress has left such matters to the discretion of
the federal courts. [
Footnote
2/9]
The offense of criminal contempt is, of course, really several
diverse offenses all bearing a common name. Some involve conduct
that violates courtroom decorum. At times, the offender has
insulted the court from a distance. Others are instances where an
adamant witness refuses to testify. Still others, like the present
case, involve disobedience of a court order directing parties to
cease and desist from certain conduct pending an appeal. While some
contempts are fairly minor affairs, others are serious indeed,
deserving lengthy sentences. 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.
III
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.
Should Congress wish it, an exception could be made for any
designated class of contempts which, all factors considered, could
truly be characterized as "petty." [
Footnote 2/10] Congress has not attempted to isolate
and
Page 384 U. S. 392
define "petty contempts." Do we have power to undertake the task
of defining a class of petty contempts and to fix maximum
punishments which might be imposed?
It would be a project more than faintly reminiscent of declaring
"common law crimes," a power which has been denied the federal
judiciary since the beginning of our republic.
See United
States v. Hudson, 7 Cranch 32;
United States v.
Gradwell, 243 U. S. 476,
243 U. S. 485.
It is, of course, true that, in the
Hudson case itself,
the Court -- while holding the judiciary powerless to exercise a
common law criminal jurisdiction -- set contempt apart from this
general restriction:
"Certain implied powers must necessarily result to our Courts of
justice from the nature of their institution. But jurisdiction of
crimes against the state is not among those powers. To fine for
contempt -- imprison for contumacy -- enforce the observance of
order, &c. are powers which cannot be dispensed with in a
Court, because they are necessary to the exercise of all others;
and so far our Courts no doubt possess powers not immediately
derived from statute; but all exercise of criminal jurisdiction in
common law cases, we are of opinion, is not within their implied
powers."
Id. at
11 U. S. 34.
[
Footnote 2/11]
Page 384 U. S. 393
The prevailing opinion today does not take that course. It does
not undertake to classify different kinds of contempt in light of
the nature and gravity of the offense. It permits the imposition of
punishment without the benefit of a trial by jury in all contempt
cases where the punishment does not exceed six months. For the
reasons stated, I believe that course is wrong -- dangerously
wrong. Until the time when petty criminal contempts are properly
defined and isolated from other species of contempts, I see no
escape from the conclusion that punishment for all manner of
criminal contempts can constitutionally be imposed only after a
trial by jury.
[
Footnote 2/1]
Although the Sixth Amendment uses somewhat different language
than that of Art. III, § 2, there is no reason to believe that the
Sixth Amendment was intended to work a change in the scope of the
jury trial requirement of Article III.
See Frankfurter
& Corcoran, Petty Federal Offenses and the Constitutional
Guaranty of Trial by Jury, 39 Harv.L.Rev. 917, 968-975 (1926).
[
Footnote 2/2]
Green v. United States, supra, at
356 U. S.
207-208 and n. 21 (dissenting opinion);
United
States v. Barnett, supra, at
376 U. S.
740-749 (dissenting opinion). Although Justice
Goldberg's use of historical materials in
Barnett has been
subjected to some criticism (
see, e.g., Tefft,
United
States v. Barnett: "Twas a Famous Victory," Supreme Court
Review 123, 132-133 (1964); Brief for the United States 27-58 and
Appendix,
passim, Harris v. United States, 382 U.
S. 162), severe penalties in contempt cases in the early
days appear, nonetheless, to have been the exception.
[
Footnote 2/3]
See, e.g., Brown v. United States, 359 U. S.
41 (15 months);
Piemonte v. United States,
367 U. S. 556 (18
months);
Reina v. United States, 364 U.
S. 507 (two years);
Green v. United States,
supra (three years);
Collins v. United States, 269
F.2d 745 (three years);
United States v. Thompson, 214
F.2d 545 (four years).
In the fiscal year ending June 30, 1962, a total of 21 people
convicted by a federal court of contempt were received by the
federal prison system. Of these, the average sentence was 6.4
months. Sentences of eight of these prisoners exceeded six months;
three prisoners had sentences exceeding one year, and of these two
prisoners had sentences of two years or more. The Federal Prison
System -- 1964, Hearing before the Subcommittee on National
Penitentiaries of the Senate Committee on the Judiciary, 88th
Cong., 2d Sess. (Jan. 22, 1964), p. 10.
[
Footnote 2/4]
The Court put the matter thus:
"However, our cases have indicated that, irrespective of the
severity of the offense, the severity of the penalty imposed, a
matter not raised in this certification, might entitle a defendant
to the benefit of a jury trial. . . . In view of the impending
contempt hearing, effective administration of justice requires that
this dictum be added: some members of the Court are of the view
that, without regard to the seriousness of the offense, punishment
by summary trial without a jury would be constitutionally limited
to that penalty provided for petty offenses."
Supra at
376 U. S. 695,
n. 12.
[
Footnote 2/5]
The petty offense exception is treated in Frankfurter &
Corcoran, Petty Federal Offenses and the Constitutional Guaranty of
Trial by Jury, 39 Harv.L.Rev. 917 (1926). Their conclusion, long
accepted in the decisions of this Court, that jury trials are not
required in such cases is challenged in Kaye, Petty Offenders Have
No Peers, 26 Chi.L.Rev. 245 (1959).
[
Footnote 2/6]
This was, of course, not a case tried in the federal courts. But
the Court did not decide the case on the ground that the
Constitution does not require the States to afford jury trials in
criminal cases; it took, instead, the narrower ground that this was
a petty offense.
[
Footnote 2/7]
"Broadly speaking, acts were dealt with summarily which did not
offend too deeply the moral purposes of the community, which were
not too close to society's danger, and were stigmatized by
punishment relatively light."
Frankfurter & Corcoran,
supra, at 980-981.
[
Footnote 2/8]
"Some members of the Court are of the view that,
without
regard to the seriousness of the offense, punishment by
summary trial without a jury would be constitutionally limited to
that penalty provided for petty offenses."
376 U.S. at
376 U. S. 695.
(Emphasis added.) To the extent that this merely reflects the
Clawans principle that no offense which carries a
substantial penalty can be "petty," the Court was correct. Yet,
quite apart from the question of punishment, a jury trial is
constitutionally required where the offense is of a serious
character.
[
Footnote 2/9]
18 U.S.C. § 402 (1964 ed.).
[
Footnote 2/10]
Congress might, for example, determine that breaches of court
decorum are generally of so minor a nature as to render it
advisable to forgo the possibility of any except minor penalties in
favor of maintaining procedures for quick punishment (
see
Fed.Rule Crim.Proc. 42(a);
Harris v. United States,
382 U. S. 162)
which are said to be necessary to achieve "summary vindication of
the court's dignity and authority."
Cooke v. United
States, 267 U. S. 517,
267 U. S. 534.
This might be a class of "petty contempts" for which the maximum
penalty would be slight, and for which trial by jury would not be
required.
Quaere, whether imposition of a prison term
would ever be consistent with a "petty" offense.
Cf. Kaye,
Petty Offenders Have No Peers, 26 Chi.L.Rev. 245, 275-277
(1959).
[
Footnote 2/11]
And see 18 U.S.C. § 402, which allows "all other cases
of contempt not specifically embraced in this section [to be]
punished in conformity to the prevailing usages at law."