Cheff v. Schnackenberg/Dissent Douglas

Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting.

I adhere to the view expressed in the dissents in Green v. United States, 356 U.S. 165, 193, 78 S.Ct. 632, 648, 2 L.Ed.2d 672, and United States v. Barnett, 376 U.S. 681, 724, 728, 84 S.Ct. 984, 1007, 12 L.Ed.2d 23, 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. 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. 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. 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 '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).

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. 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 petty offense. It studiously avoids embracing the view expressed by Mr. Justice HARLAN (384 U.S. at 380, 86 S.Ct. at 1537), 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, 8 S.Ct. 1301, 32 L.Ed. 223 (1888). 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 555, 8 S.Ct. at 1306. In Natal v. State of Louisiana, 139 U.S. 621, 11 S.Ct. 636, 35 L.Ed. 288, 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). And in Schick v. United States, 195 U.S. 65, 24 S.Ct. 826, 49 L.Ed. 99, 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, 51 S.Ct. 52, 75 L.Ed. 177, 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 73,      51 S.Ct., at 53.

The most recent case is District of Columbia v. Clawans, 300 U.S. 617, 57 S.Ct. 660, 81 L.Ed. 843, where the offense charged was 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 625, 57 S.Ct., at 662. 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 627, 57 S.Ct., at 663. 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 627-628, 57 S.Ct., at 663.

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 maximum possible sentence is that it may be 'taken as a gauge of (the) social and ethical judgments' of the community. Id., at 628, 57 S.Ct., at 663. 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? The Barnett dictum, though accepting the relevance of the petty offense cases, errs in assuming that these considerations are irrelevant.

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 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.

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.

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.' Congress has not attempted to isolate and 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, 3 L.Ed. 259; United States v. Gradwell, 243 U.S. 476, 485, 37 S.Ct. 407, 410, 61 L.Ed. 857. 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-inforce     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 34.

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.