The Yale Law Journal

February 2003

Why Contempt Is Different: Agency Costs and "Petty Crime" in Summary Contempt Proceedings

Eric Fleisig-Greene
112 Yale L.J. 1223 (2003)

For as long as they have existed, contempt proceedings have been the source of significant controversy, their necessity and abuse hotly contested by the legal community, the legislature, and the judiciary. The raw, unchecked power of summary contempt--the ability of a judge to imprison an individual instantaneously without trial, hearing, or counsel--is arguably a discretionary authority of unparalleled magnitude. At the same time, such authority has also been hailed as indispensable to the judiciary's function as an effective arbiter and administrator of the law. Given these polar traits of summary contempt, it is not surprising that the legitimacy and scope of the contempt power was once a topic of heated debate as well as intense academic and political scrutiny. In 1963, just five years before the Supreme Court handed down the last of a series of landmark contempt decisions in Bloom v. Illinois, one author described contempt as "a volatile, focal point of significant and timely political issues" that had been "the vehicle for deciding a variety of dramatic and significant social problems."
But in the three and a half decades following Bloom--a decision that guaranteed a jury trial for any direct criminal contempt with a term of imprisonment greater than six months--the issue of contempt has gradually disappeared from judicial and academic discourse. This lack of modern-day discussion should not be taken as a sign that the contempt power is no longer exercised: It may rather evince a widespread acceptance that Bloom achieved the proper balance for contempt by placing it on the same footing as other crimes.
The true reach of summary contempt in today's court system is impossible to determine, in great part due to the very opacity of its procedures. Because summary contempt, by its very nature, does not involve a prosecutor, does not fall under the federal sentencing guidelines, and is adjudicated without any published ruling and often without the defendant ever leaving the courtroom, sources of judicial statistics that might otherwise be expected to provide data on criminal proceedings are unavailing in determining the extent of the judiciary's use of summary contempt. The single collected source of reporting on contempt--appellate cases reviewing lower court contempt proceedings--may thus vastly understate the procedure's true prevalence in the judicial system. But even in the underrepresentative pool of appellate court decisions, it is clear that summary contempt is alive and well: Recent cases demonstrate that such simple provocations as an off-color remark, a late request for a jury trial, or merely staunch advocacy run the risk of costing an alleged contemnor a hefty fine or up to a half a year of his freedom. As these cases show, the exercise of the contempt power lives on, and with it questions of judicial bias and unchecked self-dealing--questions that Bloom, this Note argues, failed to address adequately.
This Note seeks to reopen the discussion and pick up where Bloom left off, by reconsidering the right to a jury trial in contempt-of-court proceedings. More specifically, the following pages address whether and in what instances the right to trial by jury is constitutionally guaranteed to those accused of direct criminal contempt. It is the thesis of this Note that the current doctrine, founded upon the Court's opinion in Bloom, provides insufficient constitutional safeguards for such contemnors. Contempt proceedings differ from ordinary crimes: They raise unique concerns of impartiality and separation of powers that the jury was designed to address. By analogizing contempt to other crimes, and by extending to contempt proceedings the "petty crimes" analysis that underlies the right to a jury trial in criminal cases, the current doctrine loses sight of the purpose behind the guarantees of jury trial found in Article III of the Constitution and the Sixth Amendment. Alluring though the "petty crimes" analysis for the right to a jury trial may be, Bloom's application of that standard to contempt proceedings was erroneous, and the historical record of both the jury right and the contempt power support a more limited scope of summary adjudication than that standard provides. Accordingly, this Note strives to present a new framework within which to conceive of the right to jury trial in contempt proceedings--a framework that is more consistent with both the history of the contempt power and the theory behind the limits on jury trial for ordinary crimes.
To present and justify such a framework, this Note proceeds in four parts. Part I discusses the role of the jury, examining historical sources to demonstrate that one of the jury's primary purposes was to act as a guard against consolidated power, corruption, and self-dealing. As the political discussion surrounding Article III and the Sixth Amendment demonstrates, a central function of the jury was to align incentives of the judiciary with those of the citizenry from which it derived its authority--to act as a solution to what is now commonly known as the "principal-agent problem." By permitting the "principal" to make decisions when the stakes were high, the jury ensured that the judiciary was accountable to the people it purported to serve. For the same reason, juries were deemed unnecessary when the potential for judicial self-dealing and the stakes of adjudication were both low: There was no right to a jury trial when the offense was a "petty crime" that did not affect the judge and that carried a relatively minor punishment.
Part II considers why, given the functional role of the jury outlined in Part I, contempt is different from other crimes for the purposes of the right to a jury trial. Although the punishments for contempt and ordinary crimes may be analogous, the incentives for judges in both instances are not. Contempt provides a greater temptation for judges to deviate from the will of the citizenry, and accordingly generates greater agency costs than do other crimes.
Part III discusses why this difference matters from the perspective of the right to a jury trial. Combining the analysis in Parts I and II, it concludes that summary adjudication of contempt, if allowed at all, should be more limited in scope than the current doctrine requires. To supplement this critique, Part IV proposes a number of potential means by which the conclusions of Part III might be implemented. Although the appropriate balance between summary contempt and jury trials may be impossible to determine, the summary contempt power as it currently stands is unjustifiable in its breadth. Accordingly, this final Part offers possible solutions to achieve a more appropriate standard for the adjudication of contempt and considers the costs of such solutions.
Part IV concludes with a discussion of the practical difficulties of implementing any possible solutions to the current, erroneous doctrine surrounding contempt. In so doing, it provides a final illustration of how the same judicial self-dealing that makes current contempt doctrine inappropriate has also historically acted to prevent its correction--whether attempted through legislative, executive, or judicial channels.