The Contemptible Practice of Contempt

Susan McDougal is a political prisoner, the victim of an archaic and punitive law that has no place in our legal system. She should be released; here’s why.

Courts have the power to enforce compliance with their orders and to punish misbehavior in their presence by citing people for contempt. Criminal contempt is like any other offense and is prosecuted like all other crimes. Historic exceptions to this rule were eliminated by the Supreme Court decades ago.

Civil contempt (which is McDougal’s offense), however, historically has been deemed not to be a crime, merely a coercive administrative power used to compel compliance to court orders. Through legal legerdemain, the defendant is said to carry the keys to his or her imprisonment, and for this reason ordinary constitutional protections that protect criminals in all other instances are said not to apply.

By calling the offense “civil,” and the sanction for it “remedial,” there is no requirement for an indictment, trial, jury or specific sentence. For refusing to testify before a grand jury in the Whitewater investigation into President Clinton’s involvement in that infamous real estate transaction, McDougal has been locked in solitary confinement for more than a year (the period defining felonies) in Arkansas, Texas, and California under onerous conditions usually reserved for ax murderers and international spies.

And there may be no end to her imprisonment. Civil contemnors conceivably could be imprisoned for life. McDougal’s contempt may be viewed as concluded when the grand jury’s 18-month term ends, but a new grand jury could be impaneled and her contempt perpetuated by a vindictive prosecutor or judge.

When I was in the Justice Department, aggressive prosecutors advocated calling one Mafia chief before successive federal grand juries, knowing he wouldn’t testify; he could have been jailed indefinitely without being convicted of any crime. Their proposal was not adopted, but technically such a tactic would be legal.

Under this aberrant, vestigial law, theoretically a defiant witness could be locked up indefinitely, and in some cases--such as McDougal’s--the periods of incarceration may be longer than that for criminals convicted of serious crimes.

Typical civil contempt situations involve marital disputes over alimony or custody such as Elizabeth Morgan’s 25-month incarceration for refusing to say where her daughter was secreted, or cases involving organized crime, where reluctant witnesses are locked up for refusing to cooperate with law enforcement officers who do not have the evidence to convict them of ordinary crimes.

Since it is clear that McDougal is not going to testify, she should have been indicted or released. The legal rationale for this medieval sanction of indefinite incarceration is that she isn’t being punished, only induced to cooperate. If she does, she will be released. This legal mumbo-jumbo permits what no other feature of Anglo American law allows; it is reminiscent of civil law countries with inquisitional justice systems. The next step is to hang her by her thumbs.

Not only is prolonged and open-ended imprisonment prejudicial in itself, but it also hampers McDougal in preparing her defense for her pending criminal trial for embezzlement.

Contempt of court has been called by a legal scholar “the Proteus of the legal world” because it comes in a diversity of forms. But the civil contempt denomination is based on the specious reasoning that the defendant is not being punished, but rather is committing a masochistic act beyond the control of the state. One old English decision held that civil contempt “is merciful to the submissive, and not too severe upon the refractory.” In fact, civil contempt is treated in every respect as a penal matter, except in the extraordinary procedures used to administer its implementation. Courts have consistently called contempt criminal in its nature, except when rationalizing civil contempts as falling outside the procedural protections of all other crimes.

Surely judges ought to have the power to control events in their courts. Jailing a defiant witness briefly during the course of a trial usually results in their cooperation. But any incarceration that lasts beyond that imposed for a petty offense (six months) warrants the same constitutional protections that protect all alleged criminals including criminal contemnors, but which ironically have been denied civil contemnors. Courts and prosecutors should not be encouraged to enter into contests of will with citizens, especially when all the awesome penal powers of the state are at their avail and none of the customary constitutional protections of the Bill of Rights arc available to the citizen.