Contempt of court

When court orders are disobeyed or trial participants misbehave, judges invoke their historic power of civil contempt. They summarily imprison the culprit until he or she does what they were ordered to do. The rationale is that the prisoner has the key to the prison door, and can be released by conforming to the court’s order. The power is supposed to be remedial, not punitive.

The idea makes sense. How could any government body operate without the power to control its own proceedings? The problem is that every so often someone is adamant and ends up summarily incarcerated in prison for egregiously long, sometimes indefinite periods. The case of Susan McDougal in the Clinton era drew attention to this phenomenon. She refused to testify before the Whitewater grand jury and languished in jail over a year. In her notorious custody battle, Dr. Elizabeth Morgan was imprisoned for 25 months for refusing to tell where her daughter was secreted.

The most recent example involved a 73-year-old lawyer in Philadelphia who has been imprisoned for 14 years for contempt of court for impeding a court-ordered settlement with his ex-wife in a divorce case. Allegedly, he hid assets rather than pay his wife. He argues he doesn’t have the assets. As an AP report concluded, at this point the court’s order does not have the intended coercive effect. In comparable cases, recalcitrant spouses languished in jails for prolonged periods because they couldn’t or wouldn’t conform to the courts’ orders.

If, in cases like these, the court’s order is not or cannot be fulfilled — genuinely or obstructively — the recalcitrant contemnor should be tried for the offense and treated like other criminal defendants. In the Philadelphia case, if the contemnor hid assets to frustrate a court ruling, he should be indicted, convicted and sentenced for that. Throwing him in jail, summarily, indefinitely, is too autocratic and undemocratic — even if a defendant is obstructive. Calling these situations “civil” to avoid the standard requirements of criminal trials is artificial, wasteful and unjust.

When an act is no longer coercive, it becomes retributive and vindictive. This is more than a semantic distinction. It should be clear when civil contempt punishes past acts, rather than coercing future ones. Once that is clear, there ought to be better alternatives to summary and indefinite punishment in these situations. It is time for the courts to reform this archaic, aberrant, inquisitorial procedure, and follow ordinary constitutional requirements when behavior is alleged to be criminal. Our laws of civil contempt should be reformed.

Where is Charles Dickens when we need him?



Visit www.RonaldGoldfarb.com.

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