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.
^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).
^2 Green v. United States, supra, 356 U.S. at 207-208 and n. 21, 78 S.Ct. at 655-656 (dissenting opinion); United States v. Barnett, supra, 376 U.S. at 740-749, 84 S.Ct. at 1012-1018 (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, 86 S.Ct. 352, 15 L.Ed.2d 240), severe penalties in contempt cases in the early days appear, nonetheless, to have been the exception.
^3 See, e.g., Brown v. United States, 359 U.S. 41, 79 S.Ct. 539, 3 L.Ed.2d 609 (15 months); Piemonte v. United States, 367 U.S. 556, 81 S.Ct. 1720, 6 L.Ed.2d 1028 (18 months); Reina v. United States, 364 U.S. 507, 81 S.Ct. 260, 5 L.Ed.2d 249 (two years); Green v. United States, supra (three years); Collins v. United States, 9 Cir., 269 F.2d 745 (three years); United States v. Thompson, 2 Cir., 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.
^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.' 376 U.S., at 695, n. 12, 84 S.Ct., at 992.
^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).
^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.
^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.
^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 695, 84 S.Ct., at 992. (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.
^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, 86 S.Ct. 352, 15 L.Ed.2d 240) 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, 534, 45 S.Ct. 390, 394, 69 L.Ed. 767. 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).