Cheff v. Schnackenberg/Concurrence Harlan
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 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.
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 1533. However, as recently as 1958, this Court in Green v. United States, 356 U.S. 165, 78 S.Ct. 632, 2 L.Ed.2d 672 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  and has been steadfastly adhered to in case after case in this Court,  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.
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.
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.  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.  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 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. 
Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting.
^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.'
^2 See Ex parte Terry, 128 U.S. 289, 313, 9 S.Ct. 77, 82, 32 L.Ed. 405 (1888) (Harlan, J.); Savin, Petitioner, 131 U.S. 267, 278, 9 S.Ct. 699, 702, 33 L.Ed. 150 (1889) (Harlan, J.); Eilenbecker v. Plymouth County, 134 U.S. 31, 36, 10 S.Ct. 424, 426, 33 L.Ed. 801 (1890) (Miller, J.); Interstate Commerce Comm'n v. Brimson, 154 U.S. 447, 489, 14 S.Ct. 1125, 1137, 38 L.Ed. 1047 (1894) (Harlan, J.); Bessette v. W. B. Conkey Co., 194 U.S. 324, 336-337, 24 S.Ct. 665, 670, 48 L.Ed. 997 (1904) (Brewer, J.); Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 450, 31 S.Ct. 492, 501, 55 L.Ed. 797 (1911) (Lamar, J.); Gompers v. United States, 233 U.S. 604, 610-611, 34 S.Ct. 693, 695, 58 L.Ed. 1115 (1914) (Holmes, J.); Ex parte Hudgings, 249 U.S. 378, 383, 39 S.Ct. 337, 339, 63 L.Ed. 656 (1919) (White, C.J.); Myers v. United States, 264 U.S. 95, 104-105, 44 S.Ct. 272, 273, 68 L.Ed. 577 (1924) (McReynolds, J.); Michaelson v. United States, 266 U.S. 42, 67, 45 S.Ct. 18, 20, 69 L.Ed. 162 (1924) (Sutherland, J.); Ex parte Grossman, 267 U.S. 87, 117-118, 45 S.Ct. 332, 335-336, 69 L.Ed. 527 (1925) (Taft, C.J.); Fisher v. Pace, 336 U.S. 155, 159 160, 69 S.Ct. 425, 427, 93 L.Ed. 569 (1949) (Reed, J.); Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 13, 99 L.Ed. 11 (1954) (Frankfurter, J.).
^3 This question was never raised in Pappadio nor encompassed by the limited grant of certiorari in that case, see 382 U.S. 916, 86 S.Ct. 287, 15 L.Ed.2d 231, 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.
^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.
^5 The two-year sentences imposed on Shillitani and Pappadio do not call for the exercise of this Court's corrective power over contempt