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  • Melvin R. BLANTON and Mark D. Fraley, Petitioners v. CITY OF NORTH LAS VEGAS, NEVADA. | Supreme Court | LII / Legal Information Institute
    149 89 S Ct at 1505 The judiciary should not substitute its judgment as to seriousness for that of a legislature which is far better equipped to perform the task and is likewise more responsive to changes in attitude and more amenable to the recognition and correction of their misperceptions in this respect Landry v Hoepfner 840 F 2d 1201 1209 CA5 1988 en banc cert pending No 88 5043 In using the word penalty we do not refer solely to the maximum prison term authorized for a particular offense A legislature s view of the seriousness of an offense also is reflected in the other penalties that it attaches to the offense See United States v Jenkins 780 F 2d 472 474 and n 3 CA4 cert denied 476 U S 1161 106 S Ct 2283 90 L Ed 2d 724 1986 We thus examine whether the length of the authorized prison term or the seriousness of other punishment is enough in itself to require a jury trial Duncan supra 391 U S at 161 88 S Ct at 1453 emphasis added see also Frank 395 U S at 152 89 S Ct at 1507 three years probation is not onerous enough to make an otherwise petty offense serious 6 Primary emphasis however must be placed on the maximum authorized period of incarceration Penalties such as probation or a fine may engender a significant infringement of personal freedom id at 151 89 S Ct 1506 but they cannot approximate in severity the loss of liberty that a prison term entails Indeed because incarceration is an intrinsically different form of punishment Muniz v Hoffman 422 U S 454 477 95 S Ct 2178 2190 45 L Ed 2d 319 1975 it is the most powerful indication whether an offense is serious Following this approach our decision in Baldwin established that a defendant is entitled to a jury trial whenever the offense for which he is charged carries a maximum authorized prison term of greater than six months 399 U S at 69 90 S Ct at 1888 see id at 74 76 90 S Ct at 1891 1892 Black J concurring in judgment The possibility of a sentence exceeding six months we determined is sufficiently severe by itself to require the opportunity for a jury trial Id at 69 n 6 90 S Ct at 1888 n 6 As for a prison term of six months or less we recognized that it will seldom be viewed by the defendant as trivial or petty Id at 73 90 S Ct at 1890 But we found that the disadvantages of such a sentence onerous though they may be may be outweighed by the benefits that result from speedy and inexpensive nonjury adjudications Ibid see also Duncan supra 391 U S at 160 88 S Ct at 1453 Although we did not hold in Baldwin that an offense carrying a maximum prison term of six months or less automatically qualifies as a petty offense 7 and decline to do so today we do find it appropriate to presume for purposes of the Sixth Amendment that society views such an offense as petty A defendant is entitled to a jury trial in such circumstances only if he can demonstrate that any additional statutory penalties viewed in conjunction with the maximum authorized period of incarceration are so severe that they clearly reflect a legislative determination that the offense in question is a serious one This standard albeit somewhat imprecise should ensure the availability of a jury trial in the rare situation where a legislature packs an offense it deems serious with onerous penalties that nonetheless do not puncture the 6 month incarceration line Brief for Petitioners 16 8 Applying these principles here it is apparent that petitioners are not entitled to a jury trial The maximum authorized prison sentence for first time DUI offenders does not exceed six months A presumption therefore exists that the Nevada Legislature views DUI as a petty offense for purposes of the Sixth Amendment Considering the additional statutory penalties as well we do not believe that the Nevada Legislature has clearly indicated that DUI is a serious offense In the first place it is immaterial that a first time DUI offender may face a minimum term of imprisonment In settling on six months imprisonment as the constitutional demarcation point we have assumed that a defendant convicted of the offense in question would receive the maximum authorized prison sentence It is not constitutionally determinative therefore that a particular defendant may be required to serve some amount of jail time less than six months Likewise it is of little moment that a defendant may receive the maximum prison term because of the prohibitions on plea bargaining and probation As for the 90 day license suspension it too will be irrelevant if it runs concurrently with the prison sentence which we assume for present purposes to be the maximum of six months 9 We are also unpersuaded by the fact that instead of a prison sentence a DUI offender may be ordered to perform 48 hours of community service dressed in clothing identifying him as a DUI offender Even assuming the outfit is the source of some embarrassment during the 48 hour period 10 such a penalty will be less embarrassing and less onerous than six months in jail As for the possible 1 000 fine it is well below the 5 000 level set by Congress in its most recent definition of a petty offense 18 U S C 1 1982 ed Supp IV and petitioners do not suggest that this congressional figure is out of step with state practice for offenses carrying prison sentences of six months or less 11 Finally we ascribe little significance to the fact that a DUI offender faces increased penalties for repeat offenses Recidivist penalties of the magnitude imposed for DUI are commonplace and in any event petitioners do not face such penalties here 12 Viewed

    Original URL path: http://www.law.cornell.edu/supremecourt//text/489/538 (2012-11-09)
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  • Aubrey SCOTT, Petitioner, v. State of ILLINOIS. | Supreme Court | LII / Legal Information Institute
    defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities not luxuries The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries but it is in ours From the very beginning our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him Id at 344 83 S Ct at 796 97 Earlier precedents had recognized that the assistance of appointed counsel was critical not only to equalize the sides in an adversary criminal process 2 but also to give substance to other constitutional and procedural protections afforded criminal defendants 3 Gideon established the right to appointed counsel for indigent accuseds as a categorical requirement making the Court s former case by case due process analysis cf Betts v Brady 316 U S 455 62 S Ct 1252 86 L Ed 1595 1942 unnecessary in cases covered by its holding Gideon involved a felony prosecution but that fact was not crucial to the decision its reasoning extended in the words of the Sixth Amendment to all criminal prosecutions 4 Argersinger v Hamlin took a cautious approach toward implementing the logical consequences of Gideon s rationale The petitioner in Argersinger had been sentenced to jail for 90 days after conviction at a trial without counsel of carrying a concealed weapon a Florida offense carrying an authorized penalty of imprisonment for up to six months and a fine of up to 1 000 The State relying on Duncan v Louisiana 391 U S 145 88 S Ct 1444 20 L Ed 2d 491 1968 and Baldwin v New York 399 U S 66 90 S Ct 1886 26 L Ed 2d 437 1970 urged that the Sixth Amendment right to counsel like the right to jury trial should not apply to accuseds charged with petty offenses punishable by less than six months imprisonment But Argersinger refused to extend the petty offense limitation to the right to counsel The Court pointed out that the limitation was contrary to the express words of the Sixth Amendment which guarantee its enumerated rights in all criminal prosecutions that the right to jury trial was the only Sixth Amendment right applicable to the States that had been held inapplicable to petty offenses 5 that this limitation had been based on historical considerations peculiar to the right to jury trial 6 and that the right to counsel was more fundamentally related to the fairness of criminal prosecutions than the right to jury trial and was in fact essential to the meaningful exercise of other Sixth Amendment protections 7 Although its analysis like that in Gideon and other earlier cases suggested that the Sixth Amendment right to counsel should apply to all state criminal prosecutions Argersinger held only that an indigent defendant is entitled to appointed counsel even in petty offenses punishable by six months of incarceration or less if he is likely to be sentenced to incarceration for any time if convicted The question of the right to counsel in cases in which incarceration was authorized but would not be imposed was expressly reserved 8 II In my view petitioner could prevail in this case without extending the right to counsel beyond what was assumed to exist in Argersinger Neither party in that case questioned the existence of the right to counsel in trials involving non petty offenses punishable by more than six months in jail 9 The question the Court addressed was whether the right applied to some petty offenses to which the right to jury trial did not extend The Court s reasoning in applying the right to counsel in the case before it that the right to counsel is more fundamental to a fair proceeding than the right to jury trial and that the historical limitations on the jury trial right are irrelevant to the right to counsel certainly cannot support a standard for the right to counsel that is more restrictive than the standard for granting a right to jury trial As my Brother Powell commented in his opinion concurring in the result in Argersinger 407 U S at 45 46 92 S Ct at 2017 It is clear that wherever the right to counsel line is to be drawn it must be drawn so that an indigent has a right to appointed counsel in all cases in which there is a due process right to a jury trial Argersinger thus established a two dimensional test for the right to counsel the right attaches to any nonpetty offense punishable by more than six months in jail and in addition to any offense where actual incarceration is likely regardless of the maximum authorized penalty See Duke The Right to Appointed Counsel Argersinger and Beyond 12 Am Crim L Rev 601 1975 The offense of theft with which Scott was charged is certainly not a petty one It is punishable by a sentence of up to one year in jail Unlike many traffic or other regulatory offenses it carries the moral stigma associated with common law crimes traditionally recognized as indicative of moral depravity 10 The State indicated at oral argument that the services of a professional prosecutor were considered essential to the prosecution of this offense Tr of Oral Arg 39 cf Argersinger v Hamlin 407 U S at 49 92 S Ct at 2018 Powell J concurring in result Likewise nonindigent defendants charged with this offense would be well advised to hire the best lawyers they can get 11 Scott s right to the assistance of appointed counsel is thus plainly mandated by the logic of the Court s prior cases including Argersinger itself 12 III But rather than decide consonant with the assumption in regard to nonpetty offenses that was both implicit and explicit in Argersinger the Court today retreats to the indefensible position that the Argersinger actual imprisonment standard is the only test for determining the boundary of the Sixth Amendment right to appointed counsel in state misdemeanor cases thus necessarily deciding that in many cases such as this one a defendant will have no right to appointed counsel even when he has a constitutional right to a jury trial This is simply an intolerable result Not only is the actual imprisonment standard unprecedented as the exclusive test but also the problems inherent in its application demonstrate the superiority of an authorized imprisonment standard that would require the appointment of counsel for indigents accused of any offense for which imprisonment for any time is authorized First the authorized imprisonment standard more faithfully implements the principles of the Sixth Amendment identified in Gideon The procedural rules established by state statutes are geared to the nature of the potential penalty for an offense not to the actual penalty imposed in particular cases The authorized penalty is also a better predictor of the stigma and other collateral consequences that attach to conviction of an offense 13 With the exception of Argersinger authorized penalties have been used consistently by this Court as the true measures of the seriousness of offenses See e g Baldwin v New York 399 U S at 68 70 90 S Ct at 1888 Frank v United States 395 U S 147 149 89 S Ct 1503 1505 23 L Ed 2d 162 1969 United States v Moreland 258 U S 433 42 S Ct 368 66 L Ed 700 1922 Imprisonment is a sanction particularly associated with criminal offenses trials of offenses punishable by imprisonment accordingly possess the characteristics found by Gideon to require the appointment of counsel By contrast the actual imprisonment standard as the Court s opinion in this case demonstrates denies the right to counsel in criminal prosecutions to accuseds who suffer the severe consequences of prosecution other than imprisonment Second the authorized imprisonment test presents no problems of administration It avoids the necessity for time consuming consideration of the likely sentence in each individual case before trial and the attendant problems of inaccurate predictions unequal treatment and apparent and actual bias These problems with the actual imprisonment standard were suggested in my Brother Powell s concurrence in Argersinger 407 U S at 52 55 92 S Ct at 2020 2021 which was echoed in scholarly criticism of that decision 14 Petitioner emphasizes these defects arguing with considerable force that implementation of the actual imprisonment standard must assuredly lead to violations of both the Due Process and Equal Protection Clauses of the Constitution Brief for Petitioner 47 59 Finally the authorized imprisonment test ensures that courts will not abrogate legislative judgments concerning the appropriate range of penalties to be considered for each offense Under the actual imprisonment standard the judge will be forced to decide in advance of trial and without hearing the evidence whether he will forego entirely his judicial discretion to impose some sentence of imprisonment and abandon his responsibility to consider the full range of punishments established by the legislature His alternatives assuming the availability of counsel will be to appoint counsel and retain the discretion vested in him by law or to abandon this discretion in advance and proceed without counsel Argersinger v Hamlin supra at 53 92 S Ct at 2020 Powell J concurring in result The authorized imprisonment standard on the other hand respects the allocation of functions between legislatures and courts in the administration of the criminal justice system The apparent reason for the Court s adoption of the actual imprisonment standard for all misdemeanors is concern for the economic burden that an authorized imprisonment standard might place on the States But with all respect that concern is both irrelevant and speculative This Court s role in enforcing constitutional guarantees for criminal defendants cannot be made dependent on the budgetary decisions of state governments A unanimous Court made that clear in Mayer v Chicago 404 U S 189 196 197 92 S Ct 410 416 30 L Ed 2d 372 1971 in rejecting a proposed fiscal justification for providing free transcripts for appeals only when the appellant was subject to imprisonment This argument misconceives the principle of Griffin v Illinois 351 U S 12 76 S Ct 585 100 L Ed 891 1956 Griffin does not represent a balance between the needs of the accused and the interests of society its principle is a flat prohibition against pricing indigent defendants out of as effective an appeal as would be available to others able to pay their own way The invidiousness of the discrimination that exists when criminal procedures are made available only to those who can pay is not erased by any differences in the sentences that may be imposed The State s fiscal interest is therefore irrelevant 15 In any event the extent of the alleged burden on the States is as the Court admits ante at 373 374 n 5 speculative Although more persons are charged with misdemeanors punishable by incarceration than are charged with felonies a smaller percentage of persons charged with misdemeanors qualify as indigent and misdemeanor cases as a rule require far less attorney time 16 Furthermore public defender systems have proved economically feasible and the establishment of such systems to replace appointment of private attorneys can keep costs at acceptable levels even when the number of cases requiring appointment of counsel increases dramatically 17 The public defender system alternative also answers the argument that an authorized imprisonment standard would clog the courts with inexperienced appointed counsel Perhaps the strongest refutation of respondent s alarmist prophecies that an authorized imprisonment standard would wreak havoc on the States is that the standard has not produced that result in the substantial number of States that already provide counsel in all cases where imprisonment is authorized States that include a large majority of the country s population and a great diversity of urban and rural environments 18 Moreover of those States that do not yet provide counsel in all cases where any imprisonment is authorized many provide counsel when periods of imprisonment longer than 30 days 19 3 months 20 or 6 months 21 are authorized In fact Scott would be entitled to appointed counsel under the current laws of at least 33 States 22 It may well be that adoption by this Court of an authorized imprisonment standard would lead state and local governments to re examine their criminal statutes A state legislature or local government might determine that it no longer desired to authorize incarceration for certain minor offenses in light of the expense of meeting the requirements of the Constitution In my view this re examination is long overdue 23 In any event the Court s actual imprisonment standard must inevitably lead the courts to make this re examination which plainly should more properly be a legislative responsibility IV The Court s opinion turns the reasoning of Argersinger on its head It restricts the right to counsel perhaps the most fundamental Sixth Amendment right 24 more narrowly than the admittedly less fundamental right to jury trial 25 The abstract pretext that constitutional line drawing becomes more difficult as the reach of the Constitution is extended further and as efforts are made to transpose lines from one area of Sixth Amendment jurisprudence to another ante at 372 cannot camouflage the anomalous result the Court reaches Today s decision reminds one of Mr Justice Black s description of Betts v Brady an anachronism when handed down that makes an abrupt break with its own well considered precedents Gideon v Wainwright 372 U S at 345 344 83 S Ct at 796 TOP Mr Justice BLACKMUN dissenting For substantially the reasons stated by Mr Justice BRENNAN in Parts I and II of his dissenting opinion I would hold that the right to counsel secured by the Sixth and Fourteenth Amendments extends at least as far as the right to jury trial secured by those Amendments Accordingly I would hold that an indigent defendant in a state criminal case must be afforded appointed counsel whenever the defendant is prosecuted for a nonpetty criminal offense that is one punishable by more than six months imprisonment see Duncan v Louisiana 391 U S 145 88 S Ct 1444 20 L Ed 2d 491 1968 Baldwin v New York 399 U S 66 90 S Ct 1886 26 L Ed 2d 437 1970 or whenever the defendant is convicted of an offense and is actually subjected to a term of imprisonment Argersinger v Hamlin 407 U S 25 92 S Ct 2006 32 L Ed 2d 530 1972 This resolution I feel would provide the bright line that defendants prosecutors and trial and appellate courts all deserve and at the same time would reconcile on a principled basis the important considerations that led to the decisions in Duncan Baldwin and Argersinger On this approach of course the judgment of the Supreme Court of Illinois upholding petitioner Scott s conviction should be reversed since he was convicted of an offense for which he was constitutionally entitled to a jury trial I therefore dissent CC Transformed by Public Resource Org 1 Compare e g Potts v Estelle 529 F 2d 450 CA5 1976 State ex rel Winnie v Harris 75 Wis 2d 547 249 N W 2d 791 1977 with Sweeten v Sneddon 463 F 2d 713 CA10 1972 Rollins v State 299 So 2d 586 Fla cert denied 419 U S 1009 95 S Ct 328 42 L Ed 2d 283 1974 2 Ill Rev Stat ch 38 16 1 1969 The penalty provision of the statute at the time in question provided in relevant part A person first convicted of theft of property not from the person and not exceeding 150 in value shall be fined not to exceed 500 or imprisoned in a penal institution other than the penitentiary not to exceed one year or both A person convicted of such theft a second or subsequent time or after a prior conviction of any type of theft shall be imprisoned in the penitentiary from one to 5 years 3 Brief for Respondent in Argersinger v Hamlin O T 1971 No 70 5015 p 12 4 We note that the line drawn in Argersinger was with full awareness of the various options Both the petitioner in that case and the Legal Aid Society of New York as amicus curiae argued that the right to appointed counsel should pertain in any case in which imprisonment was an authorized penalty for the underlying offense Brief for Petitioner in Argersinger v Hamlin O T 1971 No 70 5015 p 4 Brief for Legal Aid Society of New York as Amicus Curiae in Argersinger v Hamlin 5 11 Respondent Florida and the amici States urged that the line be drawn as it had been in Baldwin for purposes of the jury trial guarantee See e g Brief for Respondent in Argersinger v Hamlin 12 The Solicitor General argued for the standard that was finally adopted that of actual imprisonment Brief for United States as Amicus Curiae in Argersinger v Hamlin 22 24 5 Unfortunately extensive empirical work has not been done That which exists suggests that the requirements of Argersinger have not proved to be unduly burdensome See e g Ingraham The Impact of Argersinger One Year Later 8 Law Soc Rev 615 1974 That some jurisdictions have had difficulty implementing Argersinger is certainly not an argument for extending it S Krantz C Smith D Rossman P Froud J Hoffman Right to Counsel in Criminal Cases 1 18 1976 1 Scott was found to be indigent at the time of his initial appeal and an attorney was therefore appointed for him and he was provided a

    Original URL path: http://www.law.cornell.edu/supremecourt//text/440/367 (2012-11-09)
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  • James R. MUNIZ et al., Petitioners, v. Roy O. HOFFMAN, Director, Region 20, National Labor Relations Board. | Supreme Court | LII / Legal Information Institute
    change in the understood applicability of 11 in enacting 3692 The House Report stated that r evision as distinguished from codification meant the substitution of plain language for awkward terms reconciliation of conflicting laws omission of superseded sections and consolidation of similar provisions H R Rep No 304 80th Cong 1st Sess 2 1947 Revisions in the law were carefully explained 9 in a series of Reviser s Notes printed in the House Report Id at A1 et seq But the Riviser s Note to 3692 indicates no change of substance in the law Based on section 111 of title 29 U S C 1940 ed Labor Mar 23 1932 ch 90 11 47 Stat 72 The phrase or the District of Columbia arising under the laws of the United States governing the issuance of injunctions or restraining orders in any case involving or growing out of a labor dispute was inserted and the reference to specific sections of the Norris LaGuardia Act sections 101 115 of title 29 U S C 1940 ed were eliminated H R Rep No 304 supra at A176 18 U S C pp 4442 4443 It has long been a familiar rule that a thing may be within the letter of the statute and yet not within the statute because not within its spirit nor within the intention of its makers Holy Trinity Church v United States 143 U S 457 459 12 S Ct 511 512 36 L Ed 226 1892 Whatever may be said with regard to the application of this rule in other contexts this Court has stated unequivocally that the principle embedded in the rule has particular application in the construction of labor legislation National Woodwork Mfrs Assn v NRLB 386 U S 612 619 87 S Ct 1250 1255 18 L Ed 2d 357 1967 Moreover we are construing a statute of Congress which like its predecessor created an exception to the historic rule that there was no right to a jury trial in contempt proceedings To read a substantial change in accepted practice into a revision of the Criminal Code without any support in the legislative history of that revision is insupportable As this Court said in United States v Ryder 110 U S 729 740 4 S Ct 196 201 28 L Ed 308 1884 It will not be inferred that the legislature in revising and consolidating the laws intended to change their policy unless such an intention be clearly expressed The general rule announced in Ryder was applied by this Court in Fourco Glass Co v Transmirra Corp 353 U S 222 77 S Ct 787 1 L Ed 2d 786 1957 In that case the question was whether venue in patent infringement actions was to be governed by 28 U S C 1400 b a discrete provision dealing with venue in patent infringement actions or 28 U S C 1391 c a general provision dealing with venue in actions brought against corporations Both of these provisions underwent some change in wording in the 1948 revision of the Judicial Code 10 The respondents in that case arguing in favor of the applicability of the general venue provision 1391 c took the position that the plain language of 1391 c was clear and unambiguous and that its terms include all actions 353 U S at 228 77 S Ct at 791 This Court stating that the respondents argument merely points up the question and does nothing to answer it ibid determined that the general provision 1391 c had to be read in a fashion consistent with the more particular provision 1400 b The respondents contended however that the predecessor of 1400 b which this Court had held to govern venue irrespective of a general revenue provision Stonite Products Co v Melvin Lloyd Co 315 U S 561 62 S Ct 780 86 L Ed 1026 1942 had undergone a substantive change during the revision of the Judicial Code in 1948 which effectively reversed the result dictated by Stonite The Court rejected this argument in terms acutely relevant to this case N o changes of law or policy the Court said are to be presumed from changes of language in the revision unless an intent to make such changes is clearly expressed 353 U S at 227 77 S Ct at 790 Furthermore a change in the language of a statute itself was not enough to establish an intent to effect a substantive change for every change made in the text is explained in detail in the Revisers Notes id at 226 77 S Ct at 790 and the Notes failed to express any substantive change The Court relied on the Senate and House Reports on the 1948 revision to support this position id at 226 nn 6 and 7 77 S Ct at 790 the language quoted by the Court from the House Report is virtually identical to that which appears in the House Report of the 1948 revision of the Criminal Code see n 9 supra In view of the express disavowals in the House and Senate Reports on the revisions of both the Criminal Code see supra 468 469 and the Judicial Code see n 10 supra it would seem difficult at best to argue that a change in the substantive law could nevertheless be effected by a change in the language of a statute without any indication in the Revisers Note of that change It is not tenable to argue that the Revisers Note to 3692 although it explained in detail what words were deleted from and added to what had been 11 of the Norris LaGuardia Act simply did not bother to explain at all much less in detail that an admittedly substantial right was being conferred on potential contemnors that had been rejected in the defeat of the Ball amendment the previous year and that historically contemnors had never enjoyed 11 In Tidewater Oil Co v United States 409 U S 151 93 S Ct 408 34 L Ed 2d 375 1972 the Court applied the rule that revisions contained in the 1948 Judicial Code should be construed by reference to the Reviser s Notes The question was whether a change in the language of 28 U S C 1292 a 1 made in the 1948 revision of the Judicial Code had modified a longstanding policy under 2 of the Expediting Act of 1903 32 Stat 823 as amended 15 U S C 29 providing generally that this Court should have exclusive appellate jurisdiction over civil antitrust actions brought by the Government Section 1292 a 1 as revised was susceptible of two constructions one of which would have resulted in a change in that policy After emphasizing that the function of the Revisers of the 1948 Code was generally limited to that of consolidation and codification we invoked the well established principle governing the interpretation of provisions altered in the 1948 revision that no change is to be presumed unless clearly expressed 409 U S at 162 93 S Ct at 415 quoting Fourco Glass Co v Transmirra Corp 353 U S at 228 77 S Ct at 791 After going to the committee reports the Court went to the Reviser s Notes and in the Note to 1292 a 1 found no affirmative indication of a substantive change On this basis the Court refused to give 1292 a 1 as revised the plausible construction urged by respondents there In this case involving the 1948 revision of the Criminal Code the House and Senate Reports caution repeatedly against reading substantive changes into the revision and the Reviser s Note to 3692 gives absolutely no indication that a substantive change in the law was contemplated In these circumstances our cases and the canon of statutory construction which Congress expected would be applied to the revisions of both the Criminal and Judicial Codes require us to conclude along with all the lower federal courts having considered this question since 1948 save one that 3692 does not provide for trial by jury in contempt proceedings brought to enforce an injunction issued at the behest of the Board in a labor dispute arising under the Labor Management Relations Act 12 We also agree with the Court of Appeals that the union petitioner had no right to a jury trial under Art III 2 and the Sixth Amendment Green v United States 356 U S 165 78 S Ct 632 2 L Ed 2d 672 1958 reaffirmed the historic rule that state and federal courts have the constitutional power to punish any criminal contempt without a jury trial United States v Barnett 376 U S 681 84 S Ct 984 12 L Ed 2d 23 1964 and Cheff v Schnackenberg 384 U S 373 86 S Ct 1523 16 L Ed 2d 629 1966 presaged a change in this rule The constitutional doctrine which emerged from later decisions such as Bloom v Illinois 391 U S 194 88 S Ct 1477 20 L Ed 2d 522 1968 Frank v United States 395 U S 147 89 S Ct 1503 23 L Ed 2d 162 1969 Baldwin v New York 399 U S 66 90 S Ct 1886 26 L Ed 2d 437 1970 Taylor v Hayes 418 U S 488 94 S Ct 2697 41 L Ed 2d 897 1974 and Codispoti v Pennsylvania 418 U S 506 94 S Ct 2687 41 L Ed 2d 912 1974 may be capsuled as follows 1 Like other minor crimes petty contempts may be tried without a jury but contemnors in serious contempt cases in the federal system have a Sixth Amendment right to a jury trial 2 criminal contempt in and of itself and without regard to the punishment imposed is not a serious offense absent legislative declaration to the contrary 3 lacking legislative authorization of more serious punishment a sentence of as much as six months in prison plus normal periods of probation may be imposed without a jury trial 4 but imprisonment for longer than six months is constitutionally impermissible unless the contemnor has been given the opportunity for a jury trial This Court has as yet not addressed the question whether and in what circumstances if at all the imposition of a fine for criminal contempt unaccompanied by imprisonment may require a jury trial if demanded by the defendant This case presents the question whether a fine of 10 000 against an unincorporated labor union found guilty of criminal contempt may be imposed after denying the union s claim that it was entitled to a jury trial under the Sixth Amendment Local 70 insists that where a fine of this magnitude is imposed a contempt cannot be considered a petty offense within the meaning of 18 U S C 1 3 and that its demand for a jury trial was therefore erroneously denied We cannot agree In determining the boundary between petty and serious contempts for pourposes of applying the Sixth Amendment s jury trial guarantee and in holding that a punishment of more than six months in prison could not be ordered without making a jury trial available to the defendant the Court has referred to the relevant rules and practices followed by the federal and state regimes including the definition of petty offenses under 18 U S C 1 3 Under that section petty offenses are defined as those crimes the penalty for which does not exceed imprisonment for a period of six months or a fine of not more than 500 or both But in referring to that definition the Court accorded it no talismanic significance and we cannot accept the proposition that a contempt must be considered a serious crime under all circumstances where the punishment is a fine of more than 500 unaccompanied by imprisonment It is one thing to hold that deprivation of an individual s liberty beyond a six month term should not be imposed without the protections of a jury trial but it is quite another to suggest that regardless of the circumstances a jury is required where any fine greater than 500 is contemplated From the standpoint of determining the seriousness of the risk and the extent of the possible deprivation faced by a contemnor imprisonment and fines are intrinsically different It is not difficult to grasp the proposition that six months in jail is a serious matter for any individual but it is not tenable to argue that the possibility of a 501 fine would be considered a serious risk to a large corporation or labor union Indeed although we do not reach or decide the issue tendered by the respondent that there is no constitutional right to a jury trial in any criminal contempt case where only a fine is imposed on a corporation or labor union Brief for Respondent 36 we cannot say that the fine of 10 000 imposed on Local 70 in this case was a deprivation of such magnitude that a jury should have been interposed to guard against bias or mistake This union the respondent suggests collects dues from some 13 000 persons and although the fine is not insubstantial it is not of such magnitude that the union was deprived of whatever right to jury trial it might have under the Sixth Amendment We thus affirm the judgment of the Court of Appeals Affirmed TOP Mr Justice DOUGLAS dissenting I believe that petitioners are entitled to trial by jury under 18 U S C 3692 which provides that with certain exceptions not here material In all cases of contempt arising under the laws of the United States governing the issuance of injunctions or restraining orders in any case involving or gowing out of a labor dispute the accused shall enjoy the right to a speedy and public trial by an impartial jury In enacting this language in 1948 Congress reaffirmed the purpose originally expressed in 11 of the Norris LaGuardia Act 47 Stat 72 29 U S C 111 1946 ed That Act was intended to shield the organized labor movement from the intervention of a federal judiciary perceived by some as hostile to labor The Act severely constrained the power of a federal court to issue an injunction against any person participating or interested in a labor dispute Section 11 provided for trial by jury in all cases arising under this Act in which a person shall be charged with contempt In the context of the case now before us I view this section as affording at the very least a jury trial in any criminal contempt proceeding involving an alleged violation of an injunction issued against a participant in a labor dispute Any such injunction issued by a federal court was one arising under the Act for it could have been issued only in accordance with the Act s prescriptions 1 The evident congressional intent was to provide for the interposition of a jury when disobedience of such an injunction was alleged 2 For the reasons stated by Mr Justice STEWART post at 485 486 I am persuaded that 10 h and 10 l of the National Labor Relations Act made inapplicable only the anti injunction provisions of the Norris LaGuardia Act and did not disturb 11 The broad mandate of 11 to afford trial by jury in a contempt proceeding involving an injunction issued in a labor dispute was thus continued in 3692 3 See Green v United States 356 U S 165 217 78 S Ct 632 660 2 L Ed 2d 672 1958 black J dissenting II I would reverse the judgment against Local 70 on constitutional grounds 4 Article III 2 of the Constitution provides that t he Trial of all Crimes except in Cases of Impeachment shall be by Jury And the Sixth Amendment provides in pertinent part In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the crime shall have been committed Emphasis added The Court fails to give effect to this language when it declares that a 10 000 fine is not of such magnitude that a jury should have been interposed to guard against bias or mistake Ante at 477 I have previously protested this Court s refusal to recognize a right to jury trial in cases where it deems an offense to be petty 5 But even the petty offense exception cannot justify today s result for it is impossible fairly to characterize either the offense or its penalty as petty 6 Disobedience of an injunction obtained by the Board is hardly a transgression trivial by its nature and the imposition of a 10 000 fine is not a matter most locals would take lightly In any event the Constitution deprives us of the power to grant or whthhold trial by jury depending upon our assessment of the substantiality of the penalty To the argument that the Framers could not have intended to provide trial by jury in cases involving only small fines and imprisonment the response of Justices McReynolds and Butler in District of Columbia v Clawans 300 U S 617 633 634 57 S Ct 660 666 81 L Ed 843 1937 separate opinion is apt In a suit at common law to recover above 20 a jury trial is assured And to us it seems improbable that while providing for this protection in such a trifling matter the framers of the Constitution intended that it might be denied where imprisonment for a considerable time or liability for fifteen times 20 confronts the accused I would follow the clear command of Art III and the Sixth Amendment and reverse the judgment as to Local 70 TOP Mr Justice STEWART with whom Mr Justice MARSHALL and Mr Justice POWELL join dissenting In 1948 Congress repealed 11 of the Norris LaGuardia Act 47 Stat 72 29 U S C 111 1946 ed which provided a right to a jury trial in cases of contempt arising under that Act and added 3692 to Title 18 of the United States Code broadly guaranteeing a jury trial i n all cases of contempt arising under the laws of the United States governing the issuance of injunctions or restraining orders in any case involving or growing out of a labor dispute I cannot agree with the Court s conclusion that this congressional action was without any significance and that 3692 does not apply to any contempt proceedings involving injunctions that may be issued pursuant to the National Labor Relations Act 49 Stat 449 as amended 29 U S C 151 et seq Accordingly I would reverse the judgment before us The contempt proceedings in the present case arose out of a dispute between Local 21 of the International Typographical Union and the San Rafael Independent Journal Local 21 represents the Independent Journal s composing room employees Following expiration of the old collective bargaining agreement between Local 21 and the Independent Journal negotiations for a new agreement reached an impasse As a result Local 21 instituted strike action against the Independent Journal See San Francisco Typographical Union No 21 188 N L R B 673 enforced 465 F 2d 53 CA9 The primary strike escalated into illegal secondary boycott activity in which four other unions including the petitioner Local 70 participated The National Labor Relations Board through its Regional Director obtained an injunction pursuant to 10 l of the National Labor Relations Act as added 61 Stat 149 and as amended 29 U S C 160 l to bring a halt to that secondary activity When the proscribed secondary conduct continued apparently in willful disobedience of the 10 l injunction criminal contempt proceedings were instituted See ante at 2180 Section 3692 unambiguously guarantees a right to a jury trial in such criminal contempt proceedings The section provides in pertinent part In all cases of contempt arising under the laws of the United States governing the issuance of injunctions or restraining orders in any case involving or growing out of a labor dispute the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the contempt shall have been committed Section 3692 thus expressly applies to more than just those cases of contempt arising under the Norris LaGuardia Act By its own terms the section encompasses all cases of contempt arising under any of the several laws of the United States governing the issuance of injunctions in cases of a labor dispute Section 10 l of the National Labor Relations Act which authorized the injunction issued by the District Court is in the context of this case most assuredly one of those laws Section 10 l requires the Board s regional official to petition the appropriate district court for injunctive relief pending final Board adjudication when he has reasonable cause to believe that a labor organization or its agents have engaged in certain specified unfair labor practices 1 Although not all unfair labor practices potentially subject to 10 l injunctions need arise out of a labor dispute both the primary strike and the secondary activity in this case concerned the terms or conditions of employment of Local 21 members Thus the injunction and subsequent contempt proceedings clearly involved a labor dispute as that term is defined in the Norris LaGuardia Act and the National Labor Relations Act 2 Accordingly 10 l is here a law governing the issuance of an injunction in a case growing out of a labor dispute and the criminal contempt proceedings against the petitioners clearly come within the explicit reach of 3692 3 There is nothing in the rather meager legislative history of 3692 to indicate that despite the comprehensive language of the section Congress intended that it was to apply only to injunctions covered by the Norris LaGuardia Act The revisers did not say that 3692 was intended to be merely a recodification of 11 of the Norris LaGuardia Act 4 Rather the revisers said that the section was based on 11 and then noted without additional comment the change in language from reference to specific sections of Norris LaGuardia to the more inclusive laws of the United States H R Rep No 304 80th Cong 1st Sess A176 In contrast although the recodification of 18 U S C 402 dealing with contempts constituting crimes was also based on prior law the revisers specifically noted that i n transferring these sections to this title and in consolidating them numerous changes of phraseology were necessary which do not however change their meaning or substance H R Rep No 304 supra at A30 18 U S C p 4192 The brief legislative history of 3692 is accordingly completely consistent with the plain meaning of the words of that section Nothing in 10 l or in any other provision of the National Labor Relations Act requires that 3692 be given any different meaning in cases involving injunctions issued pursuant to the Act To be sure 10 l provides that upon the filing of a Board petition for a temporary injunction the district court shall have jurisdiction to grant such injunctive relief or temporary restraining order as it deems just and proper notwithstanding any other provision of law But requiring a jury trial prior to finding a union or union member in criminal contempt for violation of a 10 l injunction is entirely compatible with that provision Although such a reading of 3692 provides procedural protection to the alleged contemnor it in no way limits the jurisdiction of the district court to grant an injunction at the request of the Board Similarly 10 h does not indicate a congressional intent to eliminate the jury trial requirement for criminal contempts arising from disobedience of injunctions issued pursuant to the National Labor Relations Act 5 That section provides in part that w hen granting appropriate temporary relief or a restraining order the jurisdiction of courts sitting in equity shall not be limited by the Act entitled An Act to amend the Judicial Code and to define and limit the jurisdiction of courts sitting in equity and for other purposes approved March 23 1932 U S C Supp VII title 29 secs 101 115 Although 10 h thus cites parenthetically all the sections of the Norris LaGuardia Act including 11 s jury trial provision which was codified at 29 U S C 111 it does so solely as an additional means of identifying the Act Substantively 10 h like 10 l provides only that the jurisdiction of equity courts shall not be limited by the Norris LaGuardia Act But Norris LaGuardia as its title indicates was enacted to limit jurisdiction and for other purposes Section 11 upon which 3692 was based was not concerned with jurisdiction it provided procedural protections to alleged contemnors one of the Act s other purposes In contrast when Congress provided for the issuance of injunctions during national emergencies as part of the Taft Hartley Act 29 U S C 176 180 it did not merely state that the jurisdiction of district courts under those circumstances is not limited by Norris LaGuardia Rather it provided simply and broadly that all of the provisions of that Act are inapplicable 29 U S C 178 b 6 If contrary to the above discussion there is any ambiguity about 3692 it should nonetheless be read as extending a right to a jury trial in the criminal contempt proceedings now before us under the firmly established canon of statutory construction mandating that any ambiguity concerning criminal statutes is to be resolved in favor of the accused See e g United States v Bass 404 U S 336 347 92 S Ct 515 522 30 L Ed 2d 488 Rewis v United States 401 U S 808 812 91 S Ct 1056 1059 28 L Ed 2d 493 Smith v United States 360 U S 1 9 79 S Ct 991 996 3 L Ed 2d 1041 On the other hand there is no sound policy argument for limiting the scope of 3692 A guarantee of the right to a jury trial in cases of criminal contempt for violation of injunctions issued pursuant to 10 l does not restrict the ability of the Board s regional official to seek or the power of the District Court to grant temporary injunctive relief to bring an immediate halt to secondary boycotts and recognitional picketing pending adjudication of unfair labor practice charges before the Board Nor does it interfere with the authority of the District Court to insure prompt compliance with its injunction through the use of coercive civil contempt sanctions 7 Indeed construing 3692 as it is written so as to include this kind of an injunction issued pursuant to the National Labor Relations Act would not even affect the power of the court to impose criminal contempt sanctions It would only require that prior to imposition of criminal punishment for violation of a court order the necessary facts must be found by an impartial jury rather than by the judge whose order has been violated 8 In sum the plain language of 3692 and the absence of any meaningful contradictory legislative history together with the established method of construing criminal statutes require that 3692 be interpreted to include a right to a jury trial in criminal contempt proceedings for violation of 10 l injunctions Accordingly I would reverse the judgment of the Court of Appeals CC Transformed by Public Resource Org 1 A fine of 25 000 was imposed initially but 15 000 of that fine was subsequently remitted by the District Court based on Local 70 s obedience of the injunctions subsequent to the adjudication of contempt 2 Title 18 U S C 3692 reads in pertinent part as follows In all cases of contempt arising under the laws of the United States governing the issuance of injunctions or restraining orders in any case involving or growing out of a labor dispute the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the contempt shall have been committed 3 Although stating broadly at the outset that b y its own terms 3692 encompasses all cases of contempt arising under any of the several laws of the United States governing the issuance of injunctions in cases of a labor dispute dissenting opinion of Mr Justice STEWART post at 482 that dissent seems to imply that 3692 after all does not reach all cases of contempt in labor dispute injunctions That dissent appears to say that 3692 provides the right to jury trials only in cases involving criminal as opposed to civil contempt This is so it is suggested because that section guarantees the right to the accused the inference being that one charged with civil contempt is not one properly denominated as an accused Post at 487 488 n 7 But the phrase the accused was taken verbatim from 11 of the Norris LaGuardia Act 47 Stat 72 29 U S C 111 1946 ed and the legislative history of 11 leaves little room to doubt that when Congress enacted 11 it intended that section to be applicable to both criminal and civil contempt proceedings That history establishes that 11 was a compromise between the Senate version of the bill which provided for a jury trial in all contempt cases and the House version of the bill which provided for jury trials in all criminal contempt cases arising under the Norris LaGuardia Act The compromise as explained to the House gave the right to a jury trial in all contempts civil or criminal in cases arising under the Act 75 Cong Rec 6336 6337 1932 In the Senate Senator Norris himself explained the compromise as follows As the House passed the bill it did not apply to all contempt cases under the act As the Senate passed it it applied to all cases either under the act or otherwise As the House passed it it applied only to criminal contempt As the Senate passed it it applied to all contempts The compromise was to confine it to all cases under the act and to eliminate the word criminal but the cases must arise under this act Id at 6450 And Senator Norris continued Under the compromise made the language of the Senate was agreed to so that now anyone charged with any kind of a contempt arising under any of the provisions of this act will be entitled to a jury trial in the contempt proceedings Id at 6453 Certainly when Congress used the phrase the accused in 11 it did not mean to limit that phrase to describing only those accused of criminal contempt The dissent of Mr Justice STEWART also suggests that this limited reading of 3692 is consistent with the placing of that provision based on 11 of Norris LaGuardia into Title 18 in 1948 If there is any consistency in this suggestion it is in that dissent s consistent position that Congress in 1948 without expressing any intention whatsoever to do so made substantial changes in the right to jury trial including outright repeal of whatever statutory right there was to jury trial in civil contempt cases arising out of labor disputes thereby reversing itself on an issue that had been thoroughly considered and decided some 16 years before in Norris LaGuardia In arguing that 3692 may not reach civil contempt cases Mr Justice STEWART also relies on implications which he finds in 10 l of the LMRA that 3692 despite its language has no application in those cases As is clear from this opinion infra at 463 467 we too rely on 10 l as well as other provisions in suggesting that certain contempt cases are not reached by 3692 There is also a suggestion in the dissent of Mr Justice STEWART that one charged with contempt of an injunction issued during a national emergency 29 U S C 176 180 would not have the right to a jury trial notwithstanding 3692 Apparently this is so because 29 U S C 178 b 208 of the Taft Hartley Act provided simply and broadly that all the provisions of that Norris LaGuardia Act are inapplicable Post at 486 But the language Congress used in 178 b the provisions of sections 101 to 115 of this title shall not be applicable is remarkably similar to the language used in the Conference Report of the Taft Hartley Act of convey the congressional understanding of 10 h of the Wagner Act which it was re enacting in Taft Hartley making inapplicable the provisions of the Norris LaGuardia Act in proceedings before the courts H R Conf Rep No 510 80th Cong 1st Sess 57 1947 U S Code Cong Serv 1947 p 1163 See n 6 infra Mr Justice STEWART s position with respect to the applicability of 3692 in proceedings brought in the Court of Appeals to enforce Board orders directed against employers is even less clear but it would seem to be the inescapable conclusion under the dissent s analysis that at least in criminal contempts of such orders the courts of appeals would be required to empanel juries a result that would certainly represent a novel procedure see United States v Barnett 376 U S 681 690 691 and n 7 84 S Ct 984 989 990 12 L Ed 2d 23 1964 On the other hand if Mr Justice STEWART would limit 3692 to apply only to disobedience of those injunctions newly authorized by the Taft Hartley Act in 1947 that section despite its language would not apply to injunctions issued by the courts of appeals in enforcement actions against employers it would be otherwise where unions or employees are involved for the reason that the provisions of the Wagner Act included in the LMRA have the effect of exempting those situations from the reach of 3692 Very similar reasons furnish sound ground for the inapplicability of 3692 to contempt cases arising out of any of the injunctions authorized by the Taft Hartley Act 4 Section 11 of the Norris LaGuardia Act 29 U S C 111 1946 ed read in pertinent part as follows In all cases arising under sections 101 115 of this title in which a person shall be charged with contempt in a court of the United States as herein defined the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the contempt shall have been committed 5 The position of Mr Justice DOUGLAS dissenting post at 478 479 that injunctions issued pursuant to the Wagner and Taft Hartley Acts are or would have been arising under the Norris LaGuardia Act and therefore subject to 11 prior to 1948 is contrary to the understanding of the Congresses that passed the Wagner Act n 6 infra and the Taft Hartley Act post at 464 467 and of every court to have considered this question see cases cited n 12 infra 6 The only legislative history of the Wagner Act addressing this question was the statement of a witness apparently made in reference to the original version of 10 h 304 a of S 2926 which was uncontradicted by any prior or subsequent history The whole theory of enforcement of these orders is through contempt proceedings T he order of the labor board is made an order of the Federal court subject to being punished by contempt Now in the Norris LaGuardia Act there has been considerable change of the ordinary procedure on contempt I won t go into detail but simply state that in a great majority of instances punishment where the employees are the defendants must be by trial by jury This is of course not

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  • Gary DUNCAN, Appellant, v. STATE OF LOUISIANA. | Supreme Court | LII / Legal Information Institute
    the Internal Security Act of the Senate Committee on the Judiciary 84th Cong 1st Sess 63 81 1955 A more selective bibliography appears at H Kalven Jr H Zeisel The American Jury 4 n 2 1966 25 E g J Frank Courts on Trial 145 1949 H Sidgwick The Elements of Politics 498 4th ed 1919 26 Kalven Zeisel n 24 supra 27 See Patton v United States 281 U S 276 1930 28 See Part II infra 29 Kalven Zeisel n 24 supra c 2 30 Louisiana also asserts that if due process is deemed to include the right to jury trial States will be obligated to comply with all past interpretations of the Sixth Amendment an amendment which in its inception was designed to control only the federal courts and which throughout its history has operated in this limited environment where uniformity is a more obvious and immediate consideration In particular Louisiana objects to application of the decisions of this Court interpreting the Sixth Amendment as guaranteeing a 12 man jury in serious criminal cases Thompson v Utah 170 U S 343 1898 as requiring a unanimous verdict before guilt can be found Maxwell v Dow 176 U S 581 586 1900 and as barring procedures by which crimes subject to the Sixth Amendment jury trial provision are tried in the first instance without a jury but at the first appellate stage by de novo trial with a jury Callan v Wilson 127 U S 540 557 1888 It seems very unlikely to us that our decision today will require widespread changes in state criminal processes First our decisions interpreting the Sixth Amendment are always subject to reconsideration a fact amply demonstrated by the instant decision In addition most of the States have provisions for jury trials equal in breadth to the Sixth Amendment if that amendment is construed as it has been to permit the trial of petty crimes and offenses without a jury Indeed there appear to be only four States in which juries of fewer than 12 can be used without the defendant s consent for offenses carrying a maximum penalty of greater than one year Only in Oregon and Louisiana can a less than unanimous jury convict for an offense with a maximum penalty greater than one year However 10 States authorize first stage trials without juries for crimes carrying lengthy penalties these States give a convicted defendant the right to a de novo trial before a jury in a different court The statutory provisions are listed in the briefs filed in this case 31 Cheff v Schnackenberg 384 U S 373 1966 District of Columbia v Clawans 300 U S 617 1937 Schick v United States 195 U S 65 1904 Natal v Louisiana 139 U S 621 1891 see Callan v Wilson 127 U S 540 1888 See generally Frankfurter Corcoran Petty Federal Offenses and the Constitutional Guaranty of Trial by Jury 39 Harv L Rev 917 1926 Kaye Petty Offenders Have No Peers 26 U Chi L Rev 245 1959 32 18 U S C 1 33 Indeed there appear to be only two instances aside from the Louisiana scheme in which a State denies jury trial for a crime punishable by imprisonment for longer than six months New Jersey s disorderly conduct offense N J Stat Ann 2A 169 4 1953 carries a one year maximum sentence but no jury trial The denial of jury trial was upheld by a 4 3 vote against state constitutional attack in State v Maier 13 N J 235 99 A 2d 21 1953 New York State provides a jury within New York City only for offenses bearing a maximum sentence greater than one year See People v Sarlabria 42 Misc 2d 464 249 N Y S 2d 66 Sup Ct 1964 34 Frankfurter Corcoran n 31 supra In the instant case Louisiana has not argued that a penalty of two years imprisonment is sufficiently short to qualify as a petty offense but only that the penalty actually imposed on Duncan imprisonment for 60 days is within the petty offense category 35 It is argued that Cheff v Schnackenberg 384 U S 373 1966 interpreted the Sixth Amendment as meaning that to the extent that the length of punishment is a relevant criterion in distinguishing between serious crimes and petty offenses the critical factor is not the length of the sentence authorized but the length of the penalty actually imposed In our view that case does not reach the situation where a legislative judgment as to the seriousness of the crime is imbedded in the statute in the form of an express authorization to impose a heavy penalty for the crime in question Cheff involved criminal contempt an offense applied to a wide range of conduct including conduct not so serious as to require jury trial absent a long sentence In addition criminal contempt is unique in that legislative bodies frequently authorize punishment without stating the extent of the penalty which can be imposed The contempt statute under which Cheff was prosecuted 18 U S C 401 treated the extent of punishment as a matter to be determined by the forum court It is therefore understandable that this Court in Cheff seized upon the penalty actually imposed as the best evidence of the seriousness of the offense for which Cheff was tried TOP Concurrence BLACK J Concurring Opinion MR JUSTICE BLACK with whom MR JUSTICE DOUGLAS joins concurring The Court today holds that the right to trial by jury guaranteed defendants in criminal cases in federal courts by Art III of the United States Constitution and by the Sixth Amendment is also guaranteed by the Fourteenth Amendment to defendants tried in state courts With p163 this holding I agree for reasons given by the Court I also agree because of reasons given in my dissent in Adamson v California 332 U S 46 332 U S 46 68 In that dissent at 90 I took the position contrary to the holding in 332 U S 46 68 In that dissent at 90 I took the position contrary to the holding in Twining v New Jersey 211 U S 78 211 U S 78 that the Fourteenth Amendment made all of the provisions of the Bill of Rights applicable to the States This Court in 211 U S 78 that the Fourteenth Amendment made all of the provisions of the Bill of Rights applicable to the States This Court in Palko v Connecticut 302 U S 319 323 decided in 1937 although saying t here is no such general rule went on to add that the Fourteenth Amendment may make it unlawful for a State to abridge by its statutes the freedom of speech which the First Amendment safeguards against encroachment by the Congress or the like freedom of the press or the free exercise of religion or the right of peaceable assembly or the right of one accused of crime to the benefit of counsel In these and other situations immunities that are valid as against the federal government by force of the specific pledges of particular amendments have been found to be implicit in the concept of ordered liberty and thus through the Fourteenth Amendment become valid as against the states Id at 324 325 And the Palko opinion went on to explain 302 U S at 326 that certain Bill of Rights provisions were made applicable to the States by bringing them within the Fourteenth Amendment by a process of absorption Thus Twining v New Jersey supra refused to hold that any one of the Bill of Rights provisions was made applicable to the States by the Fourteenth Amendment but Palko which must be read as overruling Twining on this point concluded that the Bill of Rights Amendments that are implicit in the concept of ordered liberty are absorbed by the Fourteenth as protections against p164 state invasion In this situation I said in Adamson v California 332 U S at 89 that while I would extend to all the people of the nation the complete protection of the Bill of Rights that i f the choice must be between the selective process of the Palko decision applying some of the Bill of Rights to the States or the Twining rule applying none of them I would choose the Palko selective process See Gideon v Wainwright 372 U S 335 And I am very happy to support this selective process through which our Court has since the Adamson case held most of the specific Bill of Rights protections applicable to the States to the same extent they are applicable to the Federal Government Among these are the right to trial by jury decided today the right against compelled self incrimination the right to counsel the right to compulsory process for witnesses the right to confront witnesses the right to a speedy and public trial and the right to be free from unreasonable searches and seizures All of these holdings making Bill of Rights provisions applicable as such to the States mark of course a departure from the Twining doctrine holding that none of those provisions were enforceable as such against the States The dissent in this case however makes a spirited and forceful defense of that now discredited doctrine I do not believe that it is necessary for me to repeat the historical and logical reasons for my challenge to the Twining holding contained in my Adamson dissent and Appendix to it What I wrote there in 1947 was the product of years of study and research My appraisal of the legislative history followed 10 years of legislative experience as a Senator of the United States not a bad way I suspect to learn the value of what is said in legislative debates committee discussions committee reports and various other steps taken in the course of passage of bills resolutions p165 and proposed constitutional amendments My Brother HARLAN s objections to my Adamson dissent history like that of most of the objectors relies most heavily on a criticism written by Professor Charles Fairman and published in the Stanford Law Review 2 Stan L Rev 5 1949 I have read and studied this article extensively including the historical references but am compelled to add that in my view it has completely failed to refute the inferences and arguments that I suggested in my Adamson dissent Professor Fairman s history relies very heavily on what was not said in the state legislatures that passed on the Fourteenth Amendment Instead of relying on this kind of negative pregnant my legislative experience has convinced me that it is far wiser to rely on what was said and most importantly said by the men who actually sponsored the Amendment in the Congress I know from my years in the United States Senate that it is to men like Congressman Bingham who steered the Amendment through the House and Senator Howard who introduced it in the Senate that members of Congress look when they seek the real meaning of what is being offered And they vote for or against a bill based on what the sponsors of that bill and those who oppose it tell them it means The historical appendix to my Adamson dissent leaves no doubt in my mind that both its sponsors and those who opposed it believed the Fourteenth Amendment made the first eight Amendments of the Constitution the Bill of Rights applicable to the States In addition to the adoption of Professor Fairman s history the dissent states that the great words of the four clauses of the first section of the Fourteenth Amendment would have been an exceedingly peculiar way to say that The rights heretofore guaranteed against federal intrusion by the first eight Amendments are henceforth guaranteed against state intrusion as p166 well Dissenting opinion n 9 In response to this I can say only that the words No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States seem to me an eminently reasonable way of expressing the idea that henceforth the Bill of Rights shall apply to the States n1 What more precious privilege of American citizenship could there be than that privilege to claim the protections of our great Bill of Rights I suggest that any reading of privileges or immunities of citizens of the United States which excludes the Bill of Rights safeguards renders the words of this section of the Fourteenth Amendment meaningless Senator Howard who introduced the Fourteenth Amendment for passage in the Senate certainly read the words this way Although I have cited his speech at length in my Adamson dissent appendix I believe it would be worthwhile to reproduce a part of it here Such is the character of the privileges and immunities spoken of in the second section of the fourth article of the Constitution the Senator had just read from the old opinion of Corfield v Coryell 6 Fed Cas 546 No 3 230 E D Pa 1825 To these privileges and immunities whatever they may be for they are not and cannot be fully defined in their entire extent and precise nature to these should be added the personal rights guarantied and secured by the first eight amendments of the Constitution such as the freedom of speech and of the press the right of the people peaceably to assemble and petition the Government for a redress of grievances a right appertaining p167 to each and all the people the right to keep and to bear arms the right to be exempted from the quartering of soldiers in a house without the consent of the owner the right to be exempt from unreasonable searches and seizures and from any search or seizure except by virtue of a warrant issued upon a formal oath or affidavit the right of an accused person to be informed of the nature of the accusation against him and his right to be tried by an impartial jury of the vicinage and also the right to be secure against excessive bail and against cruel and unusual punishments Now sir here is a mass of privileges immunities and rights some of them secured by the second section of the fourth article of the Constitution which I have recited some by the first eight amendments of the Constitution and it is a fact well worthy of attention that the course of decision of our courts and the present settled doctrine is that all these immunities privileges rights thus guarantied by the Constitution or recognized by it are secured to the citizens solely as a citizen of the United States and as a party in their courts They do not operate in the slightest degree as a restraint or prohibition upon State legislation The great object of the first section of this amendment is therefore to restrain the power of the States and compel them at all times to respect these great fundamental guarantees Cong Globe 39th Cong 1st Sess 2765 2766 1866 From this I conclude contrary to my Brother HARLAN that if anything it is exceedingly peculiar to read the Fourteenth Amendment differently from the way I do While I do not wish at this time to discuss at length my disagreement with Brother HARLAN s forthright and frank restatement of the now discredited Twining doctrine n2 p168 I do want to point out what appears to me to be the basic difference between us His view as was indeed the view of Twining is that due process is an evolving concept and therefore that it entails a gradual process of judicial inclusion and exclusion to ascertain those immutable principles of free government which no member of the Union may disregard Thus the Due Process Clause is treated as prescribing no specific and clearly ascertainable constitutional command that judges must obey in interpreting the Constitution but rather as leaving judges free to decide at any particular time whether a particular rule or judicial formulation embodies an immutable principl e of free government or is implicit in the concept of ordered liberty or whether certain conduct shocks the judge s conscience or runs counter to some other similar undefined and undefinable standard Thus due process according to my Brother HARLAN is to be a phrase with no permanent meaning but one which is found to shift from time to time in accordance with judges predilections and understandings of what is best for the country If due process means this the Fourteenth Amendment in my opinion might as well have been written that no person shall be deprived of life liberty or property except by laws that the judges of the United States Supreme Court shall find to be consistent with the immutable principles of free government It is impossible for me to believe that such unconfined power is given to judges in our Constitution that is a written one in order to limit governmental power Another tenet of the Twining doctrine as restated by my Brother HARLAN is that due process of law requires only fundamental fairness But the fundamental p169 fairness test is one on a par with that of shocking the conscience of the Court Each of such tests depends entirely on the particular judge s idea of ethics and morals instead of requiring him to depend on the boundaries fixed by the written words of the Constitution Nothing in the history of the phrase due process of law suggests that constitutional controls are to depend on any particular judge s sense of values The origin of the Due Process Clause is Chapter 39 of Magna Carta which declares that No free man shall be taken outlawed banished or in any way destroyed nor will We proceed against or prosecute him except by the lawful judgment of his peers and by the law of the land n3 Emphasis added As early as 1354 the words due process of law were used in an English statute interpreting Magna Carta n4 and by the end of the 14th century due process of law and law of the land were interchangeable Thus the origin of this clause was an attempt by those who wrote Magna Carta to do away with the so called trials of that period where people were liable to sudden arrest and summary conviction in courts and by judicial commissions with no sure and definite procedural protections and under laws that might have been improvised to try their particular cases Chapter 39 of Magna Carta was a guarantee that the government would take neither life liberty nor property without a trial in accord with the law of the land that already existed at the time the alleged offense was committed This means that the Due Process Clause gives all Americans whoever they are and wherever they happen to be the right to be tried by independent and unprejudiced courts using established procedures and applying valid preexisting laws There is not one word of legal history that justifies making the p170 term due process of law mean a guarantee of a trial free from laws and conduct which the courts deem at the time to be arbitrary unreasonable unfair or contrary to civilized standards The due process of law standard for a trial is one in accordance with the Bill of Rights and laws passed pursuant to constitutional power guaranteeing to all alike a trial under the general law of the land Finally I want to add that I am not bothered by the argument that applying the Bill of Rights to the States according to the same standards that protect those personal rights against federal encroachment n5 interferes with our concept of federalism in that it may prevent States from trying novel social and economic experiments I have never believed that under the guise of federalism the States should be able to experiment with the protections afforded our citizens through the Bill of Rights As Justice Goldberg said so wisely in his concurring opinion in Pointer v Texas 380 U S 400 to deny to the States the power to impair a fundamental constitutional right is not to increase federal power but rather to limit the power of both federal and state governments in favor of safeguarding the fundamental rights and liberties of the individual In my view this promotes rather than undermines the basic policy of avoiding excess concentration of power in government federal or state which underlies our concepts of federalism 380 U S at 414 It seems to me totally inconsistent to advocate on the one hand the power of this Court to strike down any state law or practice which it finds unreasonable or unfair and on the other hand urge that the States be p171 given maximum power to develop their own laws and procedures Yet the due process approach of my Brothers HARLAN and FORTAS see other concurring opinion post p 211 does just that since in effect it restricts the States to practices which a majority of this Court is willing to approve on a case by case basis No one is more concerned than I that the States be allowed to use the full scope of their powers as their citizens see fit And that is why I have continually fought against the expansion of this Court s authority over the States through the use of a broad general interpretation of due process that permits judges to strike down state laws they do not like In closing I want to emphasize that I believe as strongly as ever that the Fourteenth Amendment was intended to make the Bill of Rights applicable to the States I have been willing to support the selective incorporation doctrine however as an alternative although perhaps less historically supportable than complete incorporation The selective incorporation process if used properly does limit the Supreme Court in the Fourteenth Amendment field to specific Bill of Rights protections only and keeps judges from roaming at will in their own notions of what policies outside the Bill of Rights are desirable and what are not And most importantly for me the selective incorporation process has the virtue of having already worked to make most of the Bill of Rights protections applicable to the States 1 My view has been and is that the Fourteenth Amendment as a whole makes the Bill of Rights applicable to the States This would certainly include the language of the Privileges and Immunities Clause as well as the Due Process Clause 2 For a more thorough exposition of my views against this approach to the Due Process Clause see my concurring opinion in Rochin v California 342 U S 165 174 3 See Murray s Lessee v Hoboken Land and Improvement Co 18 How 272 276 4 28 Edw 3 c 3 1354 5 See Malloy v Hogan 378 U S 1 10 Pointer v Texas 380 U S 400 406 Miranda v Arizona 384 U S 436 464 TOP Dissent HARLAN J Dissenting Opinion MR JUSTICE HARLAN whom MR JUSTICE STEWART joins dissenting Every American jurisdiction provides for trial by jury in criminal cases The question before us is not whether jury trial is an ancient institution which it is nor whether it plays a significant role in the administration p172 of criminal Justice which it does nor whether it will endure which it shall The question in this case is whether the State of Louisiana which provides trial by jury for all felonies is prohibited by the Constitution from trying charges of simple battery to the court alone In my view the answer to that question mandated alike by our constitutional history and by the longer history of trial by jury is clearly no The States have always borne primary responsibility for operating the machinery of criminal justice within their borders and adapting it to their particular circumstances In exercising this responsibility each State is compelled to conform its procedures to the requirements of the Federal Constitution The Due Process Clause of the Fourteenth Amendment requires that those procedures be fundamentally fair in all respects It does not in my view impose or encourage nationwide uniformity for its own sake it does not command adherence to forms that happen to be old and it does not impose on the States the rules that may be in force in the federal courts except where such rules are also found to be essential to basic fairness The Court s approach to this case is an uneasy and illogical compromise among the views of various Justices on how the Due Process Clause should be interpreted The Court does not say that those who framed the Fourteenth Amendment intended to make the Sixth Amendment applicable to the States And the Court concedes that it finds nothing unfair about the procedure by which the present appellant was tried Nevertheless the Court reverses his conviction it holds for some reason not apparent to me that the Due Process Clause incorporates the particular clause of the Sixth Amendment that requires trial by jury in federal criminal cases including as I read its opinion the sometimes trivial accompanying baggage of judicial interpretation in federal contexts p173 I have raised my voice many times before against the Court s continuing undiscriminating insistence upon fastening on the States federal notions of criminal justice n1 and I must do so again in this instance With all respect the Court s approach and its reading of history are altogether topsy turvy I I believe I am correct in saying that every member of the Court for at least the last 135 years has agreed that our Founders did not consider the requirements of the Bill of Rights so fundamental that they should operate directly against the States n2 They were wont to believe rather that the security of liberty in America rested primarily upon the dispersion of governmental power across a federal system n3 The Bill of Rights was considered unnecessary by some n4 but insisted upon by others in order to curb the possibility of abuse of power by the strong central government they were creating n5 The Civil War Amendments dramatically altered the relation of the Federal Government to the States The first section of the Fourteenth Amendment imposes p174 highly significant restrictions on state action But the restrictions are couched in very broad and general terms citizenship privileges and immunities due process of law equal protection of the laws Consequently for 100 years this Court has been engaged in the difficult process Professor Jaffe has well called the search for intermediate premises n6 The question has been where does the Court properly look to find the specific rules that define and give content to such terms as life liberty or property and due process of law A few members of the Court have taken the position that the intention of those who drafted the first section of the Fourteenth Amendment was simply and exclusively to make the provisions of the first eight Amendments applicable to state action n7 This view has never been accepted by this Court In my view often expressed elsewhere n8 the first section of the Fourteenth Amendment was meant neither to incorporate nor to be limited to the specific guarantees of the first eight Amendments The overwhelming historical evidence marshalled by Professor Fairman demonstrates to me conclusively that the Congressmen and state legislators who wrote debated and ratified the Fourteenth Amendment did not think they were incorporating the Bill of Rights n9 and p175 the very breadth and generality of the Amendment s provisions suggest that its authors did not suppose that the Nation would always be limited to mid 19th century conceptions of liberty and due process of law but that the increasing experience and evolving conscience of the American people would add new intermediate premises In short neither history nor sense supports using the Fourteenth Amendment to put the States in a p176 constitutional straitjacket with respect to their own development in the administration of criminal or civil law Although I therefore fundamentally disagree with the total incorporation view of the Fourteenth Amendment it seems to me that such a position does at least have the virtue lacking in the Court s selective incorporation approach of internal consistency we look to the Bill of Rights word for word clause for clause precedent for precedent because it is said the men who wrote the Amendment wanted it that way For those who do not accept this history a different source of intermediate premises must be found The Bill of Rights is not necessarily irrelevant to the search for guidance in interpreting the Fourteenth Amendment but the reason for and the nature of its relevance must be articulated Apart from the approach taken by the absolute incorporationists I can see only one method of analysis that has any internal logic That is to start with the words liberty and due process of law and attempt to define them in a way that accords with American traditions and our system of government This approach involving a much more discriminating process of adjudication than does incorporation is albeit difficult the one that was followed throughout the 19th and most of the present century It entails a gradual process of judicial inclusion and exclusion n10 seeking with due recognition of constitutional tolerance for state experimentation and disparity to ascertain those immutable principles of free government which no member of the Union may disregard n11 Due process was not restricted to rules fixed in the past for that would be to deny every quality p177 of the law but its age and to render it incapable of progress or improvement n12 Nor did it impose nationwide uniformity in details for t he Fourteenth Amendment does not profess to secure to all persons in the United States the benefit of the same laws and the same remedies Great diversities in these respects may exist in two States separated only by an imaginary line On one side of this line there may be a right of trial by jury and on the other side no such right Each State prescribes its own modes of judicial proceeding n13 Through this gradual process this Court sought to define liberty by isolating freedoms that Americans of the past and of the present considered more important than any suggested countervailing public objective The Court also by interpretation of the phrase due process of law enforced the Constitution s guarantee that no State may imprison an individual except by fair and impartial procedures The relationship of the Bill of Rights to this gradual process seems to me to be twofold In the first place it has long been clear that the Due Process Clause imposes some restrictions on state action that parallel Bill of Rights restrictions on federal action Second and more important than this accidental overlap is the fact that the Bill of Rights is evidence at various points of the content Americans find in the term liberty and of American standards of fundamental fairness An example both of the phenomenon of parallelism and the use of the first eight Amendments as evidence of a historic commitment is found in the partial definition p278 of liberty offered by Mr Justice Holmes dissenting in Gitlow v New York 268 U S 652 The general principle of free speech must be taken to be included in the Fourteenth Amendment in view of the scope that has been given to the word liberty as there used although perhaps it may be accepted with a somewhat larger latitude of interpretation than is allowed to Congress by the sweeping language that governs or ought to govern the laws of the United States Id at 672 As another example Mr Justice Frankfurter speaking for the Court in Wolf v Colorado 338 U S 25 27 28 recognized that t he security of one s privacy against arbitrary intrusion by the police which is at the core of the Fourth Amendment is basic to a free society It is therefore implicit in the concept of ordered liberty and as such enforceable against the States through the Due Process Clause The Court has also found among the procedural requirements of due process of law certain rules paralleling requirements of the first eight Amendments For example in Powell v Alabama 287 U S 45 the Court ruled that a State could not deny counsel to an accused in a capital case The fact that the right involved is of such a character that it cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions is obviously one of those compelling considerations which must prevail in determining whether it is embraced within the due process clause of the Fourteenth Amendment although it be specifically dealt with in another part of the federal Constitution Id at 67 Emphasis added p179 Later the right to counsel was extended to all felony cases n14 The Court has also ruled for example that due process means a speedy process so that liberty will not be long restricted prior to an adjudication and evidence of fact will not become stale n15 that in a system committed to the resolution of issues of fact by adversary proceedings the right to confront opposing witnesses must be guaranteed n16 and that if issues of fact are tried to a jury fairness demands a jury impartially selected n17 That these requirements are fundamental to procedural fairness hardly needs redemonstration In all of these instances the right guaranteed against the States by the Fourteenth Amendment was one that had also been guaranteed against the Federal Government by one of the first eight Amendments The logically critical thing however was not that the rights had been found in the Bill of Rights but that they were deemed in the context of American legal history to be fundamental This was perhaps best explained by Mr Justice Cardozo speaking for a Court that included Chief Justice Hughes and Justices Brandeis and Stone in Palko v Connecticut 302 U S 319 If the Fourteenth Amendment has absorbed them the process of absorption has had its source in the belief that neither liberty nor justice would exist if they were sacrificed Id at 326 Referring to Powell v Alabama supra Mr Justice Cardozo continued The decision did not turn upon the fact that the benefit of counsel would have been guaranteed to p180 the defendants by the provisions of the Sixth Amendment if they had been prosecuted in a federal court The decision turned upon the fact that in the particular situation laid before us in the evidence the benefit of counsel was essential to the substance of a hearing Id at 327 Mr Justice Cardozo then went on to explain that the Fourteenth Amendment did not impose on each State every rule of procedure that some other State or the federal courts thought desirable but only those rules critical to liberty The line of division may seem to be wavering and broken if there is a hasty catalogue of the cases on the one side and the other Reflection and analysis will induce a different view There emerges the perception of a rationalizing principle which gives to discrete instances a proper order and coherence The right to trial by jury and the immunity from prosecution except as the result of an indictment may have value and importance Even so they are not of the very essence of a scheme of ordered liberty To abolish them is not to violate a principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental Few would be so narrow or provincial as

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  • INTERNATIONAL UNION, UNITED MINE WORKERS OF AMERICA, et al., Petitioners, v. John L. BAGWELL et al. | Supreme Court | LII / Legal Information Institute
    relative breadth of the contempt power has been necessity Courts independently must be vested with power to impose silence respect and decorum in their presence and submission to their lawful mandates and to preserve themselves and their officers from the approach and insults of pollution Anderson v Dunn 6 Wheat 204 227 5 L Ed 242 1821 Courts thus have embraced an inherent contempt authority see Gompers 221 U S at 450 31 S Ct at 501 Ex parte Robinson 19 Wall 505 510 22 L Ed 205 1874 as a power necessary to the exercise of all others United States v Hudson 7 Cranch 32 34 3 L Ed 259 1812 But the contempt power also uniquely is liable to abuse Bloom 391 U S at 202 88 S Ct at 1482 quoting Ex parte Terry 128 U S 289 313 9 S Ct 77 82 83 32 L Ed 405 1888 Unlike most areas of law where a legislature defines both the sanctionable conduct and the penalty to be imposed civil contempt proceedings leave the offended judge solely responsible for identifying prosecuting adjudicating and sanctioning the contumacious conduct Contumacy often strikes at the most vulnerable and human qualities of a judge s temperament Bloom supra at 202 88 S Ct at 1482 and its fusion of legislative executive and judicial powers summons forth the prospect of the most tyrannical licentiousness Young v United States ex rel Vuitton 481 U S 787 822 107 S Ct 2124 2145 95 L Ed 2d 740 1987 SCALIA J concurring in judgment quoting Anderson 6 Wheat at 228 Accordingly in criminal contempt cases an even more compelling argument can be made than in ordinary criminal cases for providing a right to jury trial as a protection against the arbitrary exercise of official power Bloom 391 U S at 202 88 S Ct at 1482 Our jurisprudence in the contempt area has attempted to balance the competing concerns of necessity and potential arbitrariness by allowing a relatively unencumbered contempt power when its exercise is most essential and requiring progressively greater procedural protections when other considerations come into play The necessity justification for the contempt authority is at its pinnacle of course where contumacious conduct threatens a court s immediate ability to conduct its proceedings such as where a witness refuses to testify or a party disrupts the court See Young 481 U S at 820 821 107 S Ct at 2144 SCALIA J concurring in judgment the judicial contempt power is a power of self defense limited to sanctioning those who interfere with the orderly conduct of court business or disobey orders necessary to the conduct of that business Thus petty direct contempts in the presence of the court traditionally have been subject to summary adjudication to maintain order in the courtroom and the integrity of the trial process in the face of an actual obstruction of justice Codispoti v Pennsylvania 418 U S at 513 94 S Ct at 2691 quoting In re McConnell 370 U S 230 236 82 S Ct 1288 1292 8 L Ed 2d 434 1962 cf Wilson v United States 421 U S 309 315 316 95 S Ct 1802 1806 44 L Ed 2d 186 1975 Harris v United States 382 U S 162 164 86 S Ct 352 354 15 L Ed 2d 240 1965 In light of the court s substantial interest in rapidly coercing compliance and restoring order and because the contempt s occurrence before the court reduces the need for extensive factfinding and the likelihood of an erroneous deprivation summary proceedings have been tolerated Summary adjudication becomes less justifiable once a court leaves the realm of immediately sanctioned petty direct contempts If a court delays punishing a direct contempt until the completion of trial for example due process requires that the contemnor s rights to notice and a hearing be respected Taylor v Hayes 418 U S 488 94 S Ct 2697 41 L Ed 2d 897 1974 There it is much more difficult to argue that action without notice or hearing of any kind is necessary to preserve order and enable the court to proceed with its business id at 498 94 S Ct at 2703 particularly in view of the heightened potential for abuse posed by the contempt power id at 500 94 S Ct at 2704 see also Harris v United States 382 U S 162 164 165 86 S Ct 352 354 15 L Ed 2d 240 1965 Direct contempts also cannot be punished with serious criminal penalties absent the full protections of a criminal jury trial Bloom 391 U S at 210 88 S Ct at 1486 Still further procedural protections are afforded for contempts occurring out of court where the considerations justifying expedited procedures do not pertain Summary adjudication of indirect contempts is prohibited e g Cooke v United States 267 U S 517 534 45 S Ct 390 394 69 L Ed 767 1925 and criminal contempt sanctions are entitled to full criminal process E g Hicks 485 U S at 632 108 S Ct at 1429 Certain indirect contempts nevertheless are appropriate for imposition through civil proceedings Contempts such as failure to comply with document discovery for example while occurring outside the court s presence impede the court s ability to adjudicate the proceedings before it and thus touch upon the core justification for the contempt power Courts traditionally have broad authority through means other than contempt such as by striking pleadings assessing costs excluding evidence and entering default judgment to penalize a party s failure to comply with the rules of conduct governing the litigation process See e g Fed Rules Civ Proc 11 37 Such judicial sanctions never have been considered criminal and the imposition of civil coercive fines to police the litigation process appears consistent with this authority Similarly indirect contempts involving discrete readily ascertainable acts such as turning over a key or payment of a judgment properly may be adjudicated through civil proceedings since the need for extensive impartial factfinding is less pressing For a discrete category of indirect contempts however civil procedural protections may be insufficient Contempts involving out of court disobedience to complex injunctions often require elaborate and reliable factfinding Cf Green 356 U S at 217 n 33 78 S Ct at 660 n 33 Black J dissenting citation omitted Alleged contempts committed beyond the court s presence where the judge has no personal knowledge of the material facts are especially suited for trial by jury A hearing must be held witnesses must be called and evidence taken in any event And often crucial facts are in close dispute Such contempts do not obstruct the court s ability to adjudicate the proceedings before it and the risk of erroneous deprivation from the lack of a neutral factfinder may be substantial Id at 214 215 78 S Ct at 659 Under these circumstances criminal procedural protections such as the rights to counsel and proof beyond a reasonable doubt are both necessary and appropriate to protect the due process rights of parties and prevent the arbitrary exercise of judicial power C In the instant case neither any party nor any court of the Commonwealth has suggested that the challenged fines are compensatory At no point did the trial court attempt to calibrate the fines to damages caused by the union s contumacious activities or indicate that the fines were to compensate the complainant for losses sustained United Mine Workers 330 U S at 303 304 67 S Ct at 701 The nonparty governments in turn never requested any compensation or presented any evidence regarding their injuries never moved to intervene in the suit and never actively defended the fines imposed The issue before us accordingly is limited to whether these fines despite their noncompensatory character are coercive civil or criminal sanctions The parties propose two independent tests for determining whether the fines are civil or criminal Petitioners argue that because the injunction primarily prohibited certain conduct rather than mandated affirmative acts the sanctions are criminal Respondent in turn urges that because the trial court established a prospective fine schedule that the union could avoid through compliance the fines are civil in character Neither theory satisfactorily identifies those contempt fines that are criminal and thus must be imposed through the criminal process Petitioners correctly note that Gompers suggests a possible dichotomy between refusing to do an act commanded remedied by imprisonment until the party performs the required act and doing an act forbidden punished by imprisonment for a definite term 221 U S at 443 31 S Ct at 498 The distinction between mandatory and prohibitory orders is easily applied in the classic contempt scenario where contempt sanctions are used to enforce orders compelling or forbidding a single discrete act In such cases orders commanding an affirmative act simply designate those actions that are capable of being coerced But the distinction between coercion of affirmative acts and punishment of prohibited conduct is difficult to apply when conduct that can recur is involved or when an injunction contains both mandatory and prohibitory provisions Moreover in borderline cases injunctive provisions containing essentially the same command can be phrased either in mandatory or prohibitory terms Under a literal application of petitioners theory an injunction ordering the union Do not strike would appear to be prohibitory and criminal while an injunction ordering the union Continue working would be mandatory and civil See Tr of Oral Arg 8 9 Dobbs Contempt of Court A Survey 56 Cornell L Rev 183 239 1971 In enforcing the present injunction the trial court imposed fines without regard to the mandatory or prohibitory nature of the clause violated Accordingly even though a parsing of the injunction s various provisions might support the classification of contempts such as rock throwing and placing tire damaging jackrocks on roads as criminal and the refusal to place supervisors at picket sites as civil the parties have not asked us to review the order in that manner In a case like this involving an injunction that prescribes a detailed code of conduct it is more appropriate to identify the character of the entire decree Cf Hicks 485 U S at 639 n 10 108 S Ct at 1433 n 10 internal quotations omitted Where both civil and criminal relief is imposed the criminal feature of the order is dominant and fixes its character for purposes of review Despite respondent s urging we also are not persuaded that dispositive significance should be accorded to the fact that the trial court prospectively announced the sanctions it would impose Had the trial court simply levied the fines after finding the union guilty of contempt the resulting determinate and unconditional fines would be considered solely and exclusively punitive Hicks 485 U S at 632 633 108 S Ct at 1429 1430 see also Penfield supra Respondent nevertheless contends that the trial court s announcement of a prospective fine schedule allowed the union to avoid paying the fines simply by performing the act required by the court s order Hicks 485 U S at 632 108 S Ct at 1429 and thus transformed these fines into coercive civil ones Respondent maintains here as the Virginia Supreme Court held below that the trial court could have imposed a daily civil fine to coerce the union into compliance and that a prospective fine schedule is indistinguishable from such a sanction Respondent s argument highlights the difficulties encountered in parsing coercive civil and criminal contempt fines The fines imposed here concededly are difficult to distinguish either from determinate punitive fines or from initially suspended civil fines Ultimately however the fact that the trial court announced the fines before the contumacy rather than after the fact does not in itself justify respondent s conclusion that the fines are civil or meaningfully distinguish these penalties from the ordinary criminal law Due process traditionally requires that criminal laws provide prior notice both of the conduct to be prohibited and of the sanction to be imposed The trial court here simply announced the penalty determinate fines of 20 000 or 100 000 per violation that would be imposed for future contempts The union s ability to avoid the contempt fines was indistinguishable from the ability of any ordinary citizen to avoid a criminal sanction by conforming his behavior to the law The fines are not coercive day fines or even suspended fines but are more closely analogous to fixed determinate retrospective criminal fines which petitioners had no opportunity to purge once imposed We therefore decline to conclude that the mere fact that the sanctions were announced in advance rendered them coercive and civil as a matter of constitutional law Other considerations convince us that the fines challenged here are criminal The union s sanctionable conduct did not occur in the court s presence or otherwise implicate the court s ability to maintain order and adjudicate the proceedings before it Nor did the union s contumacy involve simple affirmative acts such as the paradigmatic civil contempts examined in Gompers Instead the Virginia trial court levied contempt fines for widespread ongoing out of court violations of a complex injunction In so doing the court effectively policed petitioners compliance with an entire code of conduct that the court itself had imposed The union s contumacy lasted many months and spanned a substantial portion of the State The fines assessed were serious totalling over 52 000 000 5 Under such circumstances disinterested factfinding and even handed adjudication were essential and petitioners were entitled to a criminal jury trial In reaching this conclusion we recognize that this Court generally has deferred to a legislature s determination whether a sanction is civil or criminal see e g United States v Ward 448 U S 242 248 100 S Ct 2636 2641 65 L Ed 2d 742 1980 Helvering v Mitchell 303 U S 391 58 S Ct 630 82 L Ed 917 1938 and that when a State s proceedings are involved state law provides strong guidance about whether or not the State is exercising its authority in a nonpunitive noncriminal manner Hicks 485 U S at 631 108 S Ct at 1429 quoting Allen v Illinois 478 U S 364 368 106 S Ct 2988 2991 92 L Ed 2d 296 1986 We do not deviate from either tradition today Where a single judge rather than a legislature declares a particular sanction to be civil or criminal such deference is less appropriate Cf Madsen v Women s Health Center Inc U S 114 S Ct 2516 L Ed 2d 1994 Moreover this Court has recognized that even for state proceedings the label affixed to a contempt ultimately will not be allowed to defeat the applicable protections of federal constitutional law Hicks v Feiock 485 U S at 631 108 S Ct at 1429 We conclude that the serious contempt fines imposed here were criminal and constitutionally could not be imposed absent a jury trial III Our decision concededly imposes some procedural burdens on courts ability to sanction widespread indirect contempts of complex injunctions through noncompensatory fines Our holding however leaves unaltered the longstanding authority of judges to adjudicate direct contempts summarily and to enter broad compensatory awards for all contempts through civil proceedings See e g Sheet Metal Workers v Equal Employment Opportunity Comm n 478 U S 421 106 S Ct 3019 92 L Ed 2d 344 1986 Because the right to trial by jury applies only to serious criminal sanctions courts still may impose noncompensatory petty fines for contempts such as the present ones without conducting a jury trial We also do not disturb a court s ability to levy albeit through the criminal contempt process serious fines like those in this case Ultimately whatever slight burden our holding may impose on the judicial contempt power cannot be controlling The Court recognized more than a quarter century ago We cannot say that the need to further respect for judges and courts is entitled to more consideration than the interest of the individual not be subjected to serious criminal punishment without the benefit of all the procedural protections worked out carefully over the years and deemed fundamental to our system of justice Genuine respect which alone can lend true dignity to our judicial establishment will be engendered not by the fear of unlimited authority but by the firm administration of the law through those institutionalized procedures which have been worked out over the centuries Bloom 391 U S at 208 88 S Ct at 1485 Where as here a serious contempt is at issue considerations of efficiency must give way to the more fundamental interest of ensuring the even handed exercise of judicial power Id at 209 88 S Ct at 1486 The judgment of the Supreme Court of Virginia is reversed It is so ordered TOP Justice SCALIA concurring I join the Court s opinion classifying the 52 000 000 in contempt fines levied against petitioners as criminal As the Court s opinion demonstrates our cases have employed a variety of not easily reconcilable tests for differentiating between civil and criminal contempts Since all of those tests would yield the same result here there is no need to decide which is the correct one and a case so extreme on its facts is not the best case in which to make that decision I wish to suggest however that when we come to making it a careful examination of historical practice will ultimately yield the answer That one and the same person should be able to make the rule to adjudicate its violation and to assess its penalty is out of accord with our usual notions of fairness and separation of powers See ante at Green v United States 356 U S 165 198 199 78 S Ct 632 650 651 2 L Ed 2d 672 1958 Black J dissenting cf Bloom v Illinois 391 U S 194 202

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  • Ben H. FRANK, Petitioner, v. UNITED STATES. | Supreme Court | LII / Legal Information Institute
    see Carroll v President and Commissioners of Princess Anne 393 U S 175 89 S Ct 347 21 L Ed 2d 325 1968 the injunction power has today become when used with this newly liberated contempt power too awesome a weapon to place in the hands of one man The situation presented by Walker v City of Birmingham 388 U S 307 87 S Ct 1824 18 L Ed 2d 1210 1967 is but one example of the power now made freely available to trial judges The probation conditions imposed in this case see n 6 ante illustrate the high degree of control that courts together with their probation officers can maintain over those brought before them Thus a court can require defendants to keep reasonable hours and in addition prohibit them from leaving the court s jurisdiction without the probation officer s permission By instructing the probation officer to construe the reasonable hours restriction strictly and to refuse permission to leave the jurisdiction a trial court can thereby virtually nullify a person s freedom of movement Moreover a court can insist that a defendant work regularly and thereby regulate his working life as well Finally a court can order a defendant to associate only with law abiding persons thereby significantly limiting his freedom of association for this condition which does not limit revocation of probation to knowing association forces him to choose his acquaintances at his peril Even these conditions restrictive as they are do not represent all the conditions available to a trial judge he may impose others and of course change or add to the conditions at any time during the five year period 1 The court s ability further to impose a six month prison term for a probation violation at any time during that period even after four years and 11 months leaves no room for doubt as to the power of the probation officer to enforce the restrictions most severely And finally the ease with which a probation officer can find a violation of so many broad conditions enhances the value of the probation device as a harassment tactic Once having found a violation of course a trial court need not bother with a fair adversary hearing before committing the offenders to prison for Mempa v Rhay 389 U S 128 88 S Ct 254 19 L Ed 2d 336 1967 does not require counsel at proa tion revocation hearings in misdemeanor cases If in hamstringing protest groups a trial judge is bound only by a five year maximum probation period and the limits of his imagination in conceiving restrictive conditions I would at least require that those on the receiving end be tried frist by a jury And the trend may be to allow the States even more leeway than federal courts for there is nothing in the Court s opinion to prohibit a State from allowing more than five years probation or as much as 10 or 15 years Thus far we have not held the States to as strict a standard as the federal system for while we have ruled that no crime punishable by more than six months may be tried without a jury in the federal courts see Cheff supra we have yet to find a jury necessary for any crime punishable by less than two years in state courts see Duncan supra Furthermore under the Court s practice of looking to legislative definitions and existing practices in the Nation Duncan supra at 161 88 S Ct at 1453 for indications of the seriousness of crimes in determining when the right to jury attaches the Court might accept a State s legislative efforts to allow an indefinite period of probation for professed petty offenses Even at present many States allow more than five years probation and some States allow trial courts to impose unlimited probationary sentences 2 The painful aspect of today s decision is that its rationale is as impermissible as its consequences The Court s holding that petitioner s sentence is within the limits of the congressonal definition of petty offenses is no less than astounding In the first place Congress acted quite without regard to the crime classification set out in 1909 the present section is based on the Act on March 4 1909 c 321 335 35 Stat 1152 when it passed the probation system in 1925 Act of March 4 1925 c 521 1 43 Stat 1259 There is simply no indication in the statute itself or its legislative history that 18 U S C 3651 was intended to modify complement add to or even relate to the petty offense definition or any definition in 18 U S C 1 the reference to capital or life sentence cases for which probation is prohibited is made in 3651 itself without citation to 18 U S C 1 More importantly however there is every indication that Congress affirmatively determined that probation should not affect its earlier definitions by making probation freely available to virtually all crimes including most felonies not thereby rendered petty because of probation s imposition In the second place even if Congress did add probation to the petty offense definition the expanded definition would not necessarily be as binding on us as the Court seems to suggest We cannot it seems to me place unlimited reliance on legislative definitions and existing practices in the Nation and thereby allow Congress and the States to rewrite the Sixth Amendment of the Constitution by simply terming petty any offense regardless of the underlying sentence The Court s misapprehension of the probation statute can better be understood by analyzing first how it arrived at its decision In holding that a trial judge acting without a jury conviction can sentence a man to serve at least five years on probation and an additional six months the Court purports to rely on and not overrule Cheff supra where we held that six months imprisonment was the maximum sentence that

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  • | Supreme Court | LII / Legal Information Institute
    was indirectly checked by juries assertions of a mitigating power when the circumstances of a prosecution pointed to political abuse of the criminal process or endowed a criminal conviction with particularly sanguinary consequences This power to thwart Parliament and Crown took the form not only of flat out acquittals in the face of guilt but of what today we would call verdicts of guilty to lesser included offenses manifestations of what Blackstone described as pious perjury on the jurors part 4 Blackstone 238 239 7 Countervailing measures to diminish the juries power were naturally forthcoming with ensuing responses both in the mother country and in the colonies that validate though they do not answer the question that the Government s position here would raise One such move on the government s side was a parliamentary practice of barring the right to jury trial when defining new statutory offenses See e g Frankfurter Corcoran Petty Federal Offenses and the Constitutional Guaranty of Trial by Jury 39 Harv L Rev 917 925 930 1926 4 Blackstone 277 279 This practice extended to violations of the Stamp Act and recurred in statutes regulating imperial trade see C Ubbelohde Vice Admiralty Courts and the American Revolution 16 21 74 80 1960 Wroth The Massachusetts Vice Admiralty Court in Law and Authority in Colonial America 32 50 G Billias ed 1965 and was one of the occasions for the protest in the Declaration of Independence against deprivation of the benefit of jury trial see P Maier American Scripture 118 1997 But even before the Declaration a less revolutionary voice than the Continental Congress had protested against the legislative practice in words widely read in America The use of nonjury proceedings had of late been so far extended Blackstone warned in the 1760 s as if a check be not timely given to threaten the disuse of our admirable and truly English trial by jury 4 Blackstone 278 Identifying trial by jury as the grand bulwark of English liberties Blackstone contended that other liberties would remain secure only so long as this palladium remains sacred and inviolate not only from all open attacks which none will be so hardy as to make but also from all secret machinations which may sap and undermine it by introducing new and arbitrary methods of trial by justices of the peace commissioners of the revenue and courts of conscience And however convenient these may appear at first as doubtless all arbitrary powers well executed are the most convenient yet let it be again remembered that delays and little inconveniences in the forms of justice are the price that all free nations must pay for their liberty in more substantial matters 4 Blackstone 342 344 A second response to the juries power to control outcomes occurred in attempts to confine jury determinations in libel cases to findings of fact leaving it to the judges to apply the law and thus to limit the opportunities for juror nullification Ultimately of course the attempt failed the juries victory being embodied in Fox s Libel Act in Britain see generally T Green Verdict According to Conscience 318 355 1985 and exemplified in John Peter Zenger s acquittal in the Colonies see e g J Rakove Original Meanings 300 302 1996 It is significant here not merely that the denouement of the restrictive efforts left the juries in control but that the focus of those efforts was principally the juries control over the ultimate verdict applying law to fact or finding the law see e g id at 301 and not the factfinding role itself 8 There was apparently some accepted understanding at the time that the finding of facts was simply too sacred a jury prerogative to be trifled with in prosecution for such a significant and traditional offense in the common law courts 9 That this history had to be in the minds of the Framers is beyond cavil According to one authority the leading account of Zenger s trial was with one possible exception the most widely known source of libertarian thought in England and America during the eighteenth century L Levy Freedom of Speech and Press in Early American History 133 1963 It is just as much beyond question that Americans of the period perfectly well understood the lesson that the jury right could be lost not only by gross denial but by erosion See supra at 17 20 One contributor to the ratification debates for example commenting on the jury trial guarantee in Art III 2 echoed Blackstone in warning of the need to guard with the most jealous circumspection against the introduction of new and arbitrary methods of trial which under a variety of plausible pretenses may in time imperceptibly undermine this best preservative of LIBERTY A New Hampshire Farmer No 3 June 6 1788 quoted in The Complete Bill of Rights 477 N Cogan ed 1997 In sum there is reason to suppose that in the present circumstances however peculiar their details to our time and place the relative diminution of the jury s significance would merit Sixth Amendment concern It is not of course that anyone today would claim that every fact with a bearing on sentencing must be found by a jury we have resolved that general issue and have no intention of questioning its resolution The point is simply that diminishment of the jury s significance by removing control over facts determining a statutory sentencing range would resonate with the claims of earlier controversies to raise a genuine Sixth Amendment issue not yet settled Our position that the Sixth Amendment and due process issues are by no means by the boards calls for a word about several cases that followed McMillan Almendarez Torres v United States 523 U S 224 1998 decided last Term stands for the proposition that not every fact expanding a penalty range must be stated in a felony indictment the precise holding being that recidivism increasing the maximum penalty need not be so charged But the case is not dispositive of the question here not merely because we are concerned with the Sixth Amendment right to jury trial and not alone the rights to indictment and notice as claimed by Almendarez Torres but because the holding last Term rested in substantial part on the tradition of regarding recidivism as a sentencing factor not as an element to be set out in the indictment The Court s repeated emphasis on the distinctive significance of recidivism leaves no question that the Court regarded that fact as potentially distinguishable for constitutional purposes from other facts that might extend the range of possible sentencing See id at 230 At the outset we note that the relevant statutory subject matter is recidivism ibid With recidivism as the subject matter in mind we turn to the statute s language id at 243 First the sentencing factor at issue here recidivism is a traditional if not the most traditional basis for a sentencing court s increasing an offender s sentence id at 245 distinguishing McMillan in light of the particular sentencing factor at issue in this case recidivism One basis for that possible constitutional distinctiveness is not hard to see unlike virtually any other consideration used to enlarge the possible penalty for an offense and certainly unlike the factor before us in this case a prior conviction must itself have been established through procedures satisfying the fair notice reasonable doubt and jury trial guarantees Almendarez Torres cannot then be read to resolve the due process and Sixth Amendment questions implicated by reading the carjacking statute as the Government urges 10 Nor is the question resolved by a series of three cases dealing with factfinding in capital sentencing The first of these Spaziano v Florida 468 U S 447 1984 contains no discussion of the sort of factfinding before us in this case It addressed the argument that capital sentencing must be a jury task and rejected that position on the ground that capital sentencing is like sentencing in other cases being a choice of the appropriate disposition as against an alternative or a range of alternatives Id at 459 Spaziano was followed in a few years by Hildwin v Florida 490 U S 638 1989 per curiam holding that the determination of death qualifying aggravating facts could be entrusted to a judge following a verdict of guilty of murder and a jury recommendation of death without violating the Sixth Amendment s jury clause Although citing Spaziano as authority 490 U S at 639 640 Hildwin was the first case to deal expressly with factfinding necessary to authorize imposition of the more severe of alternative sentences and thus arguably comparable to factfinding necessary to expand the sentencing range available on conviction of a lesser crime than murder Even if we were satisfied that the analogy was sound Hildwin could not drive the answer to the Sixth Amendment question raised by the Government s position here In Hildwin a jury made a sentencing recommendation of death thus necessarily engaging in the factfinding required for imposition of a higher sentence that is the determination that at least one aggravating factor had been proved Hildwin therefore can hardly be read as resolving the issue discussed here as the reasoning in Walton v Arizona 497 U S 639 1990 confirms Walton dealt with an argument only slightly less expansive than the one in Spaziano that every finding underlying a sentencing determination must be made by a jury Although the Court s rejection of that position cited Hildwin it characterized the nature of capital sentencing by quoting from Poland v Arizona 476 U S 147 156 1986 See 497 U S at 648 There the Court described statutory specifications of aggravating circumstances in capital sentencing as standards to guide the choice between the alternative verdicts of death and life imprisonment Ibid quoting Poland supra at 156 internal quotation marks omitted The Court thus characterized the finding of aggravating facts falling within the traditional scope of capital sentencing as a choice between a greater and a lesser penalty not as a process of raising the ceiling of the sentencing range available We are frank to say that we emphasize this careful reading of Walton s rationale because the question implicated by the Government s position on the meaning of 2119 2 is too significant to be decided without being squarely faced In sum the Government s view would raise serious constitutional questions on which precedent is not dispositive Any doubt on the issue of statutory construction is hence to be resolved in favor of avoiding those questions 11 This is done by construing 2119 as establishing three separate offenses by the specification of distinct elements each of which must be charged by indictment proven beyond a reasonable doubt and submitted to a jury for its verdict The judgment of the Court of Appeals is accordingly reversed and the case is remanded for proceedings consistent with this opinion It is so ordered Notes 1 Congress amended the statute in 1994 and 1996 In the Violent Crime Control and Law Enforcement Act of 1994 it deleted the phrase in the first paragraph concerning firearm possession and replaced it with the phrase with the intent to cause death or serious bodily harm 60003 a 14 108 Stat 1970 It also made death a possible punishment for offenses committed under subsection 3 Ibid In the Carjacking Correction Act of 1996 Congress specified that the term serious bodily injury in subsection 2 includes certain sexual assaults 2 110 Stat 3020 2 The Ninth Circuit vacated another portion of the District Court s sentencing decision and remanded United States v Oliver 60 F 3d 547 555 556 1995 On remand the District Court reduced petitioner s carjacking sentence to 20 years and his total sentence to 25 years and the Court of Appeals affirmed App 41 43 116 F 3d 1487 1997 3 See n 4 infra 4 Legislative history identifies three such models See H R Rep No 102 851 pt 1 p 17 1992 The definition of the offense tracks the language used in other federal robbery statutes 18 U S C 2111 One of them 18 U S C 2111 robbery in areas of federal maritime or territorial jurisdiction lacks aggravated forms of the offense altogether and thus is not on point here 5 The dissent in passing questions our view that 2118 a makes the causing of significant bodily injury an element of the offense defined by that section see post at 9 but it offers no reason to doubt our reading Given that 2118 a establishes only one maximum punishment and that it makes eligibility for such punishment contingent on the establishment of at least one of three facts one of which is the causing of death or significant bodily injury we think our reading is the only sensible one 6 The dissent repeatedly chides us for failing to state precisely enough the principle animating our view that the carjacking statute as construed by the Government may violate the Constitution See post at 1 14 17 The preceding paragraph in the text expresses that principle plainly enough and we re state it here under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment any fact other than prior conviction that increases the maximum penalty for a crime must be charged in an indictment submitted to a jury and proven beyond a reasonable doubt Because our prior cases suggest rather than establish this principle our concern about the Government s reading of the statute rises only to the level of doubt not certainty Contrary to the dissent s suggestion the constitutional proposition that drives our concern in no way call s into question the principle that the definition of the elements of a criminal offense is entrusted to the legislature Post at 16 internal quotation marks omitted The constitutional guarantees that give rise to our concern in no way restrict the ability of legislatures to identify the conduct they wish characterize as criminal or to define the facts whose proof is essential to the establishment of criminal liability The constitutional safeguards that figure in our analysis concern not the identity of the elements defining criminal liability but only the required procedures for finding the facts that determine the maximum permissible punishment these are the safeguards going to the formality of notice the identity of the factfinder and the burden of proof 7 For English practice see e g Langbein Shaping the Eighteenth Century Criminal Trial 50 U Chi L Rev 1 22 52 54 1983 Green The English Criminal Trial Jury in The Trial Jury in England France Germany 1700 1900 41 48 49 A Schioppa ed 1987 For Colonial American practice see e g J Goebell T Naughton Law Enforcement in Colonial New York 673 674 1944 State v Bennet 3 Brevard 515 S C 1815 8 The principle that the jury were the judges of fact and the judges the deciders of law was stated as an established principle as early as 1628 by Coke See 1 E Coke Institutes of the Laws of England 155b 1628 ad questionem facti non respondent judices ad questionem juris non respondent juratores See also Langbein The English Criminal Trial Jury on the Eve of the French Revolution in The Trial Jury in England France Germany supra at 34 n 60 Even the traditional jury restrictive view of libel law recognized the jury s authority over matters of fact See e g King v Francklin 17 How St Tr 626 672 K B 1731 These publication and the words having the meaning ascribed to them are the two matters of fact that come under your consideration and of which you are proper judges But then there is a third thing to wit Whether these defamatory expressions amount to a libel or not This does not belong to the office of the jury but to the office of the Court because it is a matter of law and not of fact and of which the Court are the only proper judges Thus most participants in the struggle over jury autonomy in seditious libel cases viewed the debate as concerned with the extent of the jury s law finding power not its unquestioned role as the determiner of factual issues See T Green Verdict According to Conscience 318 319 1985 Some influential jurists suggested that it might also be seen as a struggle over the jury s right to find a particular fact namely the required criminal intent See 10 W Holdsworth History of English Law 680 683 1938 9 See 4 Blackstone 354 jurors could choose to stop at special verdicts if they wished 10 The dissent insists that Almendarez Torres controls the question before us post at 13 18 but in substantiating that assertion it tellingly relies more heavily on the claims of the Almendarez Torres dissenters than on the statements of the Almendarez Torres majority Neither source bears out the current dissent s conclusion If as the dissenters in this case suggest Almendarez Torres did not turn on the particular sentencing factor at issue there 523 U S at 243 but instead stood for the broad proposition that any fact increasing the maximum permissible punishment may be determined by a judge by a preponderance it is a mystery why the Almendarez Torres majority engaged in so much discussion of recidivism or why at the crux of its constitutional discussion it turned first to discuss the tradition of recidivism s treatment as a sentencing factor ibid or why it never announced the unqualified holding that today s dissenters claim to find in it Admittedly as the dissent here notes the dissenters in Almendarez Torres criticized the majority for what they considered the majority s unsupportable restraint in restricting their holding to recidivism But that very criticism would have lacked its target if the Almendarez Torres majority had not so doggedly refrained from endorsing the general principle the dissent in this case now attributes to them The majority and the dissenters in Almendarez Torres disagreed over the legitimacy of the Court s decision to restrict its holding to recidivism but both sides agreed that the Court had done just that 11 In tones of alarm the dissent suggests see post at 2 17 that our decision will unsettle the efforts of many States to bring greater consistency to their sentencing practices through provisions for determinate sentences and statutorily or administratively established guidelines governing sentencing decisions The dissent s concern is misplaced for several reasons Most immediately our decision today does not announce any new principle of constitutional law but merely interprets a particular federal statute in light of a set of constitutional concerns that have emerged through a series of our decisions over the past quarter century But even if we assume that the question we raise will someday be followed by the answer the dissenters seem to fear that answer would in no way hinder the States or the National Government from choosing to pursue policies aimed at rationalizing sentencing practices If the constitutional concern we have expressed should lead to a rule requiring jury determination of facts that raise a sentencing ceiling that rule would in no way constrain legislative authority to identify the facts relevant to punishment or to establish fixed penalties The constitutional guarantees that prompt our interpretation bear solely on the procedures by which the facts that raise the possible penalty are to be found that is what notice must be given who must find the facts and what burden must be satisfied to demonstrate them Finally while we disagree with the dissent s dire prediction about the effect of our decision on the States ability to choose certain sentencing policies it should go without saying that if such policies conflict with safeguards enshrined in the Constitution for the protection of the accused those policies have to yield to the constitutional guarantees See e g Burch v Louisiana 441 U S 130 139 1979 Non unanimous verdicts by six person criminal juries sufficiently threaten the constitutional principles animating the jury trial guarantee that any countervailing interest of the State should yield cf Almeida Sanchez v United States 413 U S 266 273 1973 The needs of law enforcement stand in constant tension with the Constitution s protections of the individual against certain exercises of official power It is precisely the predictability of these pressures that counsels a resolute loyalty to constitutional safeguards Congress amended the statute in 1994 and 1996 In the Violent Crime Control and Law Enforcement Act of 1994 it deleted the phrase in the first paragraph concerning firearm possession and replaced it with the phrase with the intent to cause death or serious bodily harm 60003 a 14 108 Stat 1970 It also made death a possible punishment for offenses committed under subsection 3 Ibid In the Carjacking Correction Act of 1996 Congress specified that the term serious bodily injury in subsection 2 includes certain sexual assaults 2 110 Stat 3020 The Ninth Circuit vacated another portion of the District Court s sentencing decision and remanded United States v Oliver 60 F 3d 547 555 556 1995 On remand the District Court reduced petitioner s carjacking sentence to 20 years and his total sentence to 25 years and the Court of Appeals affirmed App 41 43 116 F 3d 1487 1997 See n 4 infra Legislative history identifies three such models See H R Rep No 102 851 pt 1 p 17 1992 The definition of the offense tracks the language used in other federal robbery statutes 18 U S C 2111 One of them 18 U S C 2111 robbery in areas of federal maritime or territorial jurisdiction lacks aggravated forms of the offense altogether and thus is not on point here The dissent in passing questions our view that 2118 a makes the causing of significant bodily injury an element of the offense defined by that section see post at 9 but it offers no reason to doubt our reading Given that 2118 a establishes only one maximum punishment and that it makes eligibility for such punishment contingent on the establishment of at least one of three facts one of which is the causing of death or significant bodily injury we think our reading is the only sensible one The dissent repeatedly chides us for failing to state precisely enough the principle animating our view that the carjacking statute as construed by the Government may violate the Constitution See post at 1 14 17 The preceding paragraph in the text expresses that principle plainly enough and we re state it here under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment any fact other than prior conviction that increases the maximum penalty for a crime must be charged in an indictment submitted to a jury and proven beyond a reasonable doubt Because our prior cases suggest rather than establish this principle our concern about the Government s reading of the statute rises only to the level of doubt not certainty Contrary to the dissent s suggestion the constitutional proposition that drives our concern in no way call s into question the principle that the definition of the elements of a criminal offense is entrusted to the legislature Post at 16 internal quotation marks omitted The constitutional guarantees that give rise to our concern in no way restrict the ability of legislatures to identify the conduct they wish characterize as criminal or to define the facts whose proof is essential to the establishment of criminal liability The constitutional safeguards that figure in our analysis concern not the identity of the elements defining criminal liability but only the required procedures for finding the facts that determine the maximum permissible punishment these are the safeguards going to the formality of notice the identity of the factfinder and the burden of proof For English practice see e g Langbein Shaping the Eighteenth Century Criminal Trial 50 U Chi L Rev 1 22 52 54 1983 Green The English Criminal Trial Jury in The Trial Jury in England France Germany 1700 1900 41 48 49 A Schioppa ed 1987 For Colonial American practice see e g J Goebell T Naughton Law Enforcement in Colonial New York 673 674 1944 State v Bennet 3 Brevard 515 S C 1815 The principle that the jury were the judges of fact and the judges the deciders of law was stated as an established principle as early as 1628 by Coke See 1 E Coke Institutes of the Laws of England 155b 1628 ad questionem facti non respondent judices ad questionem juris non respondent juratores See also Langbein The English Criminal Trial Jury on the Eve of the French Revolution in The Trial Jury in England France Germany supra at 34 n 60 Even the traditional jury restrictive view of libel law recognized the jury s authority over matters of fact See e g King v Francklin 17 How St Tr 626 672 K B 1731 These publication and the words having the meaning ascribed to them are the two matters of fact that come under your consideration and of which you are proper judges But then there is a third thing to wit Whether these defamatory expressions amount to a libel or not This does not belong to the office of the jury but to the office of the Court because it is a matter of law and not of fact and of which the Court are the only proper judges Thus most participants in the struggle over jury autonomy in seditious libel cases viewed the debate as concerned with the extent of the jury s law finding power not its unquestioned role as the determiner of factual issues See T Green Verdict According to Conscience 318 319 1985 Some influential jurists suggested that it might also be seen as a struggle over the jury s right to find a particular fact namely the required criminal intent See 10 W Holdsworth History of English Law 680 683 1938 See 4 Blackstone 354 jurors could choose to stop at special verdicts if they wished The dissent insists that Almendarez Torres controls the question before us post at 13 18 but in substantiating that assertion it tellingly relies more heavily on the claims of the Almendarez Torres dissenters than on the statements of the Almendarez Torres majority Neither source bears out the current dissent s conclusion If as the dissenters in this case suggest Almendarez Torres did not turn on the particular sentencing factor at issue there 523 U S at 243 but instead stood for the broad proposition that any fact increasing the maximum permissible punishment may be determined by a judge by a preponderance it is a mystery why the Almendarez Torres majority engaged in so much discussion of recidivism or why at the crux of its constitutional discussion it turned first to discuss the tradition of recidivism s treatment as a sentencing factor ibid or why it never announced the unqualified holding that today s dissenters claim to find in it Admittedly as the dissent here notes the dissenters in Almendarez Torres criticized the majority for what they considered the majority s unsupportable restraint in restricting their holding to recidivism But that very criticism would have lacked its target if the Almendarez Torres majority had not so doggedly refrained from endorsing the general principle the dissent in this case now attributes to them The majority and the dissenters in Almendarez Torres disagreed over the legitimacy of the Court s decision to restrict its holding to recidivism but both sides agreed that the Court had done just that In tones of alarm the dissent suggests see post at 2 17 that our decision will unsettle the efforts of many States to bring greater consistency to their sentencing practices through provisions for determinate sentences and statutorily or administratively established guidelines governing sentencing decisions The dissent s concern is misplaced for several reasons Most immediately our decision today does not announce any new principle of constitutional law but merely interprets a particular federal statute in light of a set of constitutional concerns that have emerged through a series of our decisions over the past quarter century But even if we assume that the question we raise will someday be followed by the answer the dissenters seem to fear that answer would in no way hinder the States or the National Government from choosing to pursue policies aimed at rationalizing sentencing practices If the constitutional concern we have expressed should lead to a rule requiring jury determination of facts that raise a sentencing ceiling that rule would in no way constrain legislative authority to identify the facts relevant to punishment or to establish fixed penalties The constitutional guarantees that prompt our interpretation bear solely on the procedures by which the facts that raise the possible penalty are to be found that is what notice must be given who must find the facts and what burden must be satisfied to demonstrate them Finally while we disagree with the dissent s dire prediction about the effect of our decision on the States ability to choose certain sentencing policies it should go without saying that if such policies conflict with safeguards enshrined in the Constitution for the protection of the accused those policies have to yield to the constitutional guarantees See e g Burch v Louisiana 441 U S 130 139 1979 Non unanimous verdicts by six person criminal juries sufficiently threaten the constitutional principles animating the jury trial guarantee that any countervailing interest of the State should yield cf Almeida Sanchez v United States 413 U S 266 273 1973 The needs of law enforcement stand in constant tension with the Constitution s protections of the individual against certain exercises of official power It is precisely the predictability of these pressures that counsels a resolute loyalty to constitutional safeguards TOP Concurrence NATHANIEL JONES PETITIONER v UNITED STATES on writ of certiorari to the united states court of appeals for the ninth circuit March 24 1999 Justice Stevens concurring Like Justice Scalia see post at 1 I am convinced that it is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed It is equally clear that such facts must be established by proof beyond a reasonable doubt That is the essence of the Court s holdings in In re Winship 397 U S 358 1970 Mullaney v Wilbur 421 U S 684 1975 and Patterson v New York 432 U S 197 1977 To permit anything less with respect to a fact which the State deems so important that it must either be proved or presumed is impermissible under the Due Process Clause Id at 215 This principle was firmly embedded in our jurisprudence through centuries of common law decisions See e g Winship 397 U S at 361 364 Duncan v Louisiana 391 U S 145 151 156 1968 Indeed in my view a proper understanding of this principle encompasses facts that increase the minimum as well as the maximum permissible sentence and also facts that must be established before a defendant may be put to death If McMillan v Pennsylvania 477 U S 79 1986 and Part II of the Court s opinion in Walton v Arizona 497 U S 639 647 649 1990 departed from that principle as I think they did see McMillan 477 U S at 95 104 Stevens J dissenting and Walton 497 U S at 709 714 Stevens J dissenting they should be reconsidered in due course It is not however necessary to do so in order to join the Court s opinion today which I do TOP Concurrence NATHANIEL JONES PETITIONER v UNITED STATES on writ of certiorari to the united states court of appeals for the ninth circuit March 24 1999 Justice Scalia concurring In dissenting in Almendarez Torres v United States 118 S Ct 1219 1998 I suggested the possibility and in dissenting in Monge v California 118 S Ct 2246 2255 2257 1998 I set forth as my considered view that it is unconstitutional to remove from the jury the assessment of facts that alter the congressionally prescribed range of penalties to which a criminal defendant is exposed Because I think it necessary to resolve all ambiguities in criminal statutes in such fashion as to avoid violation of this constitutional principle I join the opinion of the Court TOP Dissent NATHANIEL JONES PETITIONER v UNITED STATES on writ of certiorari to the united states court of appeals for the ninth circuit March 24 1999 J ustice K ennedy with whom The Chief Justice Justice O Connor and Justice Breyer join dissenting The question presented is whether the federal carjacking statute prohibiting the taking of a motor vehicle from the person or presence of another by force and violence or by intimidation contains in the first paragraph a complete definition of the offense with all of the elements of the crime Congress intended to codify 18 U S C 2119 In my view shared by every Court of Appeals to have addressed the issue it does The Court adopts a contrary strained reading according to which the single statutory section prohibits three distinct offenses Had it involved simply a question of statutory interpretation the majority opinion would not have been cause for much concern Questions of statutory interpretation can be close but nonetheless routine That should have been so in today s case The Court however is unwilling to rest its opinion on textual analysis Rather to bolster its statutory interpretation the Court raises the specter of grave and doubtful constitutional questions ante at 12 without an adequate explanation of the origins contours or consequences of its constitutional concerns The Court s reliance on the so called constitutional doubt rule is inconsistent with usual principles of stare decisis and contradicts the approach followed just last Term in Almendarez Torres v United States 523 U S 224 1998 Our precedents admit of no real doubt regarding the power of Congress to establish serious bodily injury and death as sentencing factors rather than offense elements as we made clear in Almedarez Torres Departing from this recent authority the Court s sweeping constitutional discussion casts doubt on sentencing practices and assumptions followed not only in the federal system but also in many States Thus among other unsettling consequences today s decision intrudes upon legitimate and vital state interests upsetting the proper federal balance I dissent from this unfortunate and unnecessary result Before it departs on its troubling constitutional discussion the Court analyzes the text of 2119 This portion of the Court s opinion it should be acknowledged is careful and comprehensive In my submission however the analysis suggests the presence of more interpretative ambiguity than in fact exists and reaches the wrong result Like the Court I begin with the textual question I Criminal laws proscribe certain conduct and specify punishment for transgressions A person commits a crime when his or her conduct violates the essential parts of the defined offense which we refer to as its elements As a general rule each element of a charged crime must be set forth in an indictment Hamling v United States 418 U S 87 117 1974 and established by the government by proof beyond a reasonable doubt In re Winship 397 U S 358 364 1970 as determined by a jury assuming the jury right is invoked Sullivan v Louisiana 508 U S 275 277 278 1993 Almendarez Torres v United States 523 U S at 239 The same rigorous requirements do not apply with respect to factors relevant only

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  • BROWNING-FERRIS INDUSTRIES OF VERMONT, INC., et al., Petitioners v. KELCO DISPOSAL, INC., et al. | Supreme Court | LII / Legal Information Institute
    of the Court of Appeals is not clear to us as to whether it applied state or federal law in reviewing the District Court s order denying the new trial or remittitur we are convinced that its conclusion that there was no abuse of discretion by the District Court is consistent with federal standards in light of the broad range of factors Vermont law permits juries to consider in awarding punitive damages V In sum we conclude that neither federal common law nor the Excessive Fines Clause of the Eighth Amendment provides a basis for disturbing the jury s punitive damages award in this case Accordingly the judgment of the Court of Appeals is affirmed It is so ordered TOP Justice BRENNAN with whom Justice MARSHALL joins concurring I join the Court s opinion on the understanding that it leaves the door open for a holding that the Due Process Clause constrains the imposition of punitive damages in civil cases brought by private parties See ante at 276 277 Several of our decisions indicate that even where a statute sets a range of possible civil damages that may be awarded to a private litigant the Due Process Clause forbids damages awards that are grossly excessive Waters Pierce Oil Co v Texas 212 U S 86 111 29 S Ct 220 227 53 L Ed 417 1909 or so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable St Louis I M S R Co v Williams 251 U S 63 66 67 40 S Ct 71 73 64 L Ed 139 1919 See also Southwestern Telegraph Telephone Co v Danaher 238 U S 482 491 35 S Ct 886 888 59 L Ed 1419 1915 Missouri Pacific R Co v Humes 115 U S 512 522 523 6 S Ct 110 113 114 29 L Ed 463 1885 I should think that if anything our scrutiny of awards made without the benefit of a legislature s deliberation and guidance would be less indulgent than our consideration of those that fall within statutory limits Without statutory or at least common law standards for the determination of how large an award of punitive damages is appropriate in a given case juries are left largely to themselves in making this important and potentially devastating decision Indeed the jury in this case was sent to the jury room with nothing more than the following terse instruction In determining the amount of punitive damages you may take into account the character of the defendants their financial standing and the nature of their acts App 81 Guidance like this is scarcely better than no guidance at all I do not suggest that the instruction itself was in error indeed it appears to have been a correct statement of Vermont law The point is rather that the instruction reveals a deeper flaw the fact that punitive damages are imposed by juries guided by little more than an admonition to do what they think is best Because the touchstone of due process is protection of the individual against arbitrary action of government Daniels v Williams 474 U S 327 331 106 S Ct 662 665 88 L Ed 2d 662 1986 quoting Wolff v McDonnell 418 U S 539 558 94 S Ct 2963 2976 41 L Ed 2d 935 1974 I for one would look longer and harder at an award of punitive damages based on such skeletal guidance than I would at one situated within a range of penalties as to which responsible officials had deliberated and then agreed Since the Court correctly concludes that Browning Ferris challenge based on the Due Process Clause is not properly before us however I leave fuller discussion of these matters for another day TOP Justice O CONNOR with whom Justice STEVENS joins concurring in part and dissenting in part Awards of punitive damages are skyrocketing As recently as a decade ago the largest award of punitive damages affirmed by an appellate court in a products liability case was 250 000 See Owen Punitive Damages in Products Liability Litigation 74 Mich L Rev 1257 1329 1332 1976 Since then awards more than 30 times as high have been sustained on appeal See Ford Motor Co v Durrill 714 S W 2d 329 Tex App 1986 10 million Ford Motor Co v Stubblefield 171 Ga App 331 319 S E 2d 470 1984 8 million Palmer v A H Robins Co 684 P 2d 187 Colo 1984 6 2 million The threat of such enormous awards has a detrimental effect on the research and development of new products Some manufacturers of prescription drugs for example have decided that it is better to avoid uncertain liability than to introduce a new pill or vaccine into the market See e g Brief for Pharmaceutical Manufacturers Association et al as Amici Curiae 5 23 Similarly designers of airplanes and motor vehicles have been forced to abandon new projects for fear of lawsuits that can often lead to awards of punitive damages See generally P Huber Liability The Legal Revolution and Its Consequences 152 171 1988 The trend toward multimillion dollar awards of punitive damages is exemplified by this case A Vermont jury found that Browning F rris Industries Inc BFI tried to monopolize the Burlington roll off waste disposal market and interfered with the contractual relations of Kelco Disposal Inc Kelco The jury awarded Kelco 51 000 in compensatory damages later trebled on the antitrust claim and over 6 million in punitive damages The award of punitive damages was 117 times the actual damages suffered by Kelco and far exceeds the highest reported award of punitive damages affirmed by a Vermont court Cf Coty v Ramsey Associates Inc 149 Vt 451 546 A 2d 196 punitive damages of 380 000 based on compensatory damages of 187 500 cert denied 487 U S 1236 108 S Ct 2903 101 L Ed 2d 936 1988 The Court holds today that the Excessive Fines Clause of the Eighth Amendment places no limits on the amount of punitive damages that can be awarded in a suit between private parties That result is neither compelled by history nor supported by precedent and I therefore respectfully dissent from Part II of the Court s opinion I do however agree with the Court that no due process claims either procedural or substantive are properly presented in this case and that the award of punitive damages here should not be overturned as a matter of federal common law I therefore join Parts I III and IV of the Court s opinion Moreover I share Justice BRENNAN s view ante at 280 282 that nothing in the Court s opinion forecloses a due process challenge to awards of punitive damages or the method by which they are imposed and I adhere to my comments in Bankers Life Casualty Co v Crenshaw 486 U S 71 86 89 108 S Ct 1645 1654 1656 100 L Ed 2d 62 1988 opinion concurring in part and concurring in judgment regarding the vagueness and procedural due process problems presented by juries given unbridled discretion to impose punitive damages Before considering the merits of BFI s Eighth Amendment claim two preliminary questions must be addressed First does the Excessive Fines Clause apply to the States through the Due Process Clause of the Fourteenth Amendment Second is a corporation such as BFI protected by the Excessive Fines Clause The award of punitive damages against BFI was based on Vermont law See 845 F 2d 404 409 CA2 1988 Almost 100 years ago the Court held that the Eighth Amendment did not apply to the States See O Neil v Vermont 144 U S 323 332 12 S Ct 693 697 36 L Ed 450 1892 See also Pervear v Commonwealth 5 Wall 475 18 L Ed 608 1867 But 13 years before O Neil the Court had applied the Eighth Amendment s ban on cruel and unusual punishments to a Territory See Wilkerson v Utah 99 U S 130 25 L Ed 345 1879 holding that execution by firing squad was not prohibited by the Eighth Amendment In Louisiana ex rel Francis v Resweber 329 U S 459 462 67 S Ct 374 375 91 L Ed 422 1947 the Court assumed without deciding that the Eighth Amendment applied to the States Any confusion created by O Neil Wilkerson and Francis was eliminated in Robinson v California 370 U S 660 666 667 82 S Ct 1417 1420 1421 8 L Ed 2d 758 1962 in which the Court albeit without discussion reversed a state conviction for the offense of narcotics addiction as constituting cruel and unusual punishment and being repugnant to the Fourteenth Amendment Since Robinson the Cruel and Unusual Punishments Clause has been regularly applied to the States most notably in the capital sentencing context In addition the Court has assumed that the Excessive Bail Clause of the Eighth Amendment applies to the States See Schilb v Kuebel 404 U S 357 365 92 S Ct 479 484 30 L Ed 2d 502 1971 I see no reason to distinguish one Clause of the Eighth Amendment from another for purposes of incorporation and would hold that the Excessive Fines Clause also applies to the States B In the words of Chief Justice Marshall a corporation is an artificial being nvisible intangible and existing only in contemplation of law Dartmouth College v Woodward 4 Wheat 518 636 4 L Ed 629 1819 As such it is not entitled to purely personal guarantees whose historic function has been limited to the protection of individuals First National Bank of Boston v Bellotti 435 U S 765 779 n 14 98 S Ct 1407 1417 n 14 55 L Ed 2d 707 1978 Thus a corporation has no Fifth Amendment privilege against self incrimination Wilson v United States 221 U S 361 31 S Ct 538 55 L Ed 771 1911 or right to privacy United States v Morton Salt Co 338 U S 632 70 S Ct 357 94 L Ed 401 1950 On the other hand a corporation has a First Amendment right to freedom of speech Virginia Pharmacy Bd v Virginia Citizens Consumer Council Inc 425 U S 748 96 S Ct 1817 48 L Ed 2d 346 1976 and cannot have its property taken without just compensation Penn Central Transportation Co v New York City 438 U S 104 98 S Ct 2646 57 L Ed 2d 631 1978 A corporation is also protected from unreasonable searches and seizures Marshall v Barlow s Inc 436 U S 307 98 S Ct 1816 56 L Ed 2d 305 1978 and can plead former jeopardy as a bar to a prosecution United States v Martin Linen Supply Co 430 U S 564 97 S Ct 1349 51 L Ed 2d 642 1977 Furthermore a corporation is entitled to due process Helicopteros Nacionales de Colombia v Hall 466 U S 408 104 S Ct 1868 80 L Ed 2d 404 1984 and equal protection Metropolitan Life Ins Co v Ward 470 U S 869 105 S Ct 1676 84 L Ed 2d 751 1985 of law Whether a particular constitutional guarantee applies to corporations depends on the nature history and purpose of the guarantee First National Bank of Boston supra at 779 n 14 98 S Ct at 1417 n 14 The payment of monetary penalties unlike the ability to remain silent is something that a corporation can do as an entity and the Court has reviewed fines and monetary penalties imposed on corporations under the Fourteenth Amendment at a time when the Eighth Amendment did not apply to the States See Waters Pierce Oil Co v Texas 212 U S 86 111 112 29 S Ct 220 227 53 L Ed 417 1909 See also St Louis I M S R Co v Williams 251 U S 63 66 67 40 S Ct 71 73 64 L Ed 139 1919 If a corporation is protected by the Due Process Clause from overbearing and oppressive monetary sanctions it is also protected from such penalties by the Excessive Fines Clause See Whitney Stores Inc v Summerford 280 F Supp 406 411 SC three judge court ENTERTAINING EIGHTH AMENDMENT CHALLENGE BY COrporation to fiNE for vIolation of Sunday closing laws summarily aff d 393 U S 9 89 S Ct 44 21 L Ed 2d 9 1968 II Language in Ingraham v Wright 430 U S 651 97 S Ct 1401 51 L Ed 2d 711 1977 and Ex parte Watkins 7 Pet 568 8 L Ed 786 1833 suggests that the entire Eighth Amendment is confined to criminal prosecutions and punishments But as the Court correctly acknowledges ante at 262 263 and n 3 that language is not dispositive here In Ingraham the Court held that the Cruel and Unusual Punishments Clause of the Eighth Amendment does not apply to disciplinary corporal punishment at a public school Because the Excessive Fines Clause was not at issue in Ingraham the Court s statement that the text of the Eighth Amendment suggests an intention to limit the power of those entrusted with the criminal law function of government 430 U S at 664 97 S Ct at 1408 is not controlling The similar statement in Ex parte Watkins that the Eighth Amendment is addressed to courts of the United States exercising criminal jurisdiction 7 Pet at 573 574 is dictum for the Court there held only that it did not have appellate jurisdiction to entertain a challenge by way of a writ for habeas corpus to criminal fines imposed upon a defend nt This Court has no appellate jurisdiction to revise the sentences of inferior courts in criminal cases and cannot even if the excess of the fine were apparent on the record reverse the sentence Id at 574 There is another reason not to rely on or be guided by the sweeping statements in Ingraham and Ex parte Watkins Those statements are inconsistent with the Court s application of the Excessive Bail Clause of the Eighth Amendment to civil proceedings in Carlson v Landon 342 U S 524 544 546 72 S Ct 525 536 537 96 L Ed 547 1952 immigration and deportation See United States v Salerno 481 U S 739 754 107 S Ct 2095 2105 95 L Ed 2d 697 1987 recognizing that Carlson was a civil case In sum none of the Court s precedents foreclose application of the Excessive Fines Clause to punitive damages III The history of the Excessive Fines Clause has been thoroughly canvassed in several recent articles all of which conclude that the Clause is applicable to punitive damages See Boston Punitive Damages and the Eighth Amendment Application of the Excessive Fines Clause 5 Cooley L Rev 667 1988 Boston Massey The Excessive Fines Clause and Punitive Damages Some Lessons from History 40 Vand L Rev 1233 1987 Massey Jeffries A Comment on the Constitutionality of Punitive Damages 72 Va L Rev 139 1986 Jeffries Note The Constitutionality of Punitive Damages Under the Excessive Fines Clause of the Eighth Amendment 85 Mich L Rev 1699 1987 Note In my view a chronological account of the Clause and its antecedents demonstrates that the Clause derives from limitations in English law on monetary penalties exacted in civil and criminal cases to punish and deter misconduct History aside this Court s cases leave no doubt that punitive damages serve the same purposes punishment and deterrence as the criminal law and that excessive punitive damages present precisely the evil of exorbitant monetary penalties that the Clause was designed to prevent The story of the Excessive Fines Clause begins in the early days of English justice before crime and tort were clearly distinct Jeffries 154 Under the Saxon legal system in pre Norman England the victim of a wrong would rather than seek vengeance through retaliation or blood feud accept financial compensation for the injury from the wrongdoer The wrongdoer could also be made to pay an additional sum on the ground that every evil deed inflicts a wrong on society in general W McKechnie Magna Carta 284 285 1958 McKechnie At some point after the Norman Conquest in 1066 this method of settling disputes gave way to a system in which individuals who had engaged in conduct offensive to the Crown placed themselves in the King s mercy so as not to have to satisfy all the monetary claims against them Id at 285 See generally 2 F Pollock F Maitland The History of English Law 512 516 2d ed 1899 Pollock Maitland In order to receive clemency these individuals were required to pay an amercement to the Crown its representative or a feudal lord Tumey v Ohio 273 U S 510 525 47 S Ct 437 442 71 L Ed 749 1927 Massey 1252 1253 and n 111 But cf R Stringham Magna Carta Fountainhead of Freedom 40 1966 a share of the amercement went to the victim or the victim s family Because the amercement originated at a time when there was little distinction between criminal law and tort law it was neither strictly a civil nor a criminal sanction Note at 1716 Blackstone however clearly thought that amercements were civil punishments See 4 W Blackstone Commentaries 372 amercements for misbehaviour in matters of civil right As one commentator has noted the amercement was assessed most commonly as a civil sanction for wrongfully bringing or defending a civil lawsuit Massey 1251 The list of conduct meriting amercement was voluminous t espass improper or false pleading default failure to appear economic wrongs torts and crimes See generally Beecher s Case 8 Co Rep 58a 59b 61b 77 Eng Rep 559 564 567 Ex 1609 The amount of an amercement was set arbitrarily according to the extent to which the King or his officers chose to relax the forfeiture of all the offender s goods Jeffries 154 155 See also Boston 725 Because of the frequency and sometimes abusive nature of amercements Chapter 20 of Magna Carta 9 Hen III ch 14 1225 prohibited amercements that were disproportionate to the offense or that would deprive the wrongdoer of his means of livelihood A Free man shall not be amerced for a small fault but after the manner of the fault and for a great fault after the greatness thereof saving to him his contenement and a Merchant likewise saving to him his Merchandise and any other s villain than ours shall be likewise amerced saving his wainage if he fall into our mercy And none of the said amerciaments shall be assessed but by the oath of honest and lawful men of the vicinage Earls and Barons shall not be amerced but by their Peers and after the manner of their offence No man of the Church shall be amerced after the quantity of his spiritual Benefice but after his Lay tenement and after the quantity of his offence numbers omitted After Magna Carta the amount of an amercement was initially set by the court A group of the amerced party s peers would then be assembled to reduce the amercement in accordance with the party s ability to pay McKechnie 288 289 For example in Le Gras v Bailiff of Bishop of Winchester Y B Mich 10 Edw II pl 4 C P 1316 reprinted in 52 Publications of the Selden Society 3 5 1934 an amercement for improper civil pleading was vacated and the bailiff who had imposed the amercement was ordered to take a moderate amercement proper to the magnitude and manner of that offence See also Granucci Nor Cruel and Unusual Punishments Inflicted The Original Meaning 57 Calif L Rev 839 845 846 1969 Granucci listing other examples of amercements that were reduced or set aside Fines and amercements had very similar functions Fines originated in the 13th century as voluntary sums paid to the Crown to avoid an indefinite prison sentence for a common law crime or to avoid royal displeasure 2 Pollock Maitland 517 Massey 1261 The fine operated as a substitute for imprisonment Having no actual power to impose a fine the court would sentence the wrongdoer to prison To avoid imprisonment the wrongdoer would then make fine by voluntarily contracting with the Crown to pay money thereby ending the matter The Crown gradually eliminated the voluntary nature of the fine by imposing indefinite sentences upon wrongdoers who effectively would be forced to pay the fine Once the fine was no longer voluntary it became the equivalent of an amercement Note at 1715 See also Boston 719 720 Although in theory fines were voluntary while amercements were not the purpose of the two penalties was equivalent and it is not surprising that in practice it became difficult to distinguish the two By the 17th century fines had lost their original character of bargain and had replaced amercements as the preferred penal sanction The word fine took on its modern meaning while the word amercement dropped out of ordinary usage McKechnie 293 But the nomenclature still caused some confusion See Griesley s Case 8 Co Rep 38a 77 Eng Rep 530 C P 1609 fine for refusing to serve as a constable analyzed as an amercement William Shakespeare an astute observer of English law and politics did not distinguish between fines and amercements in the plays he wrote in the late 16th century In Romeo and Juliet published in 1597 Prince Escalus uses the words amerce and fine interchangeably in warning the Montagues and the Capulets not t shed any more blood on the streets of Verona I have an interest in your hate s proceeding My blood for your rude brawls doth lie a bleeding But I ll amerce you with so strong a fine That you shall all repent the loss of mine Act III scene 1 lines 186 189 The preeminence of fines gave courts much more power for only they could impose fines Massey 1253 Once it was clear that Magna Carta did not apply to fines for offenses against the Crown see John Hampden s Case 9 State Tr 1054 1126 K B 1684 English courts during the reigns of Charles II and James II took advantage of their newly acquired power and imposed ruinous fines on wrongdoers and critics of the Crown After James II fled England during the Glorious Revolution of 1688 1689 the House of Commons in an attempt to end the crisis precipitated by the vacation of the throne appointed a committee to draft articles concerning essential laws and liberties that would be presented to William of Orange As the Court correctly notes some of the men who made up the committee had been subjected to heavy fines by the courts of James II See generally L Schwoerer The Declaration of Rights 1689 pp 30 33 91 92 1981 Schwoerer The committee ultimately reported 13 Articles to the House of Commons The final draft of Article 10 provided that excessive Baile ought not to be required nor excessive Fines imposed nor cruel and unusual Punishments inflicted 1 Wm Mary 2d Sess ch 2 3 Stat at Large 440 441 1689 According to Blackstone the English Bill of Rights was only declaratory of the old constitutional law 4 W Blackstone Commentaries 372 See also Schwoerer 92 excessive fines provision of Article 10 reaffirmed ancient law Of course the only prohibition on excessive monetary penalties predating Article 10 was contained in Magna Carta Since it incorporated the earlier prohibition against excessive amercements which could arise in civil settings as well as other forms of punishment Article 10 s limitation on excessive fines cannot be limited to strictly criminal cases but extends to monetary sanctions imposed in both criminal and civil contexts Note at 1717 Because the word amercement had dropped out of ordinary usage by the late 17th century it appears that the word fine in Article 10 was simply shorthand for all monetary penalties whether imposed by judge or jury in both civil and criminal proceedings Massey 1256 Indeed three months after the adoption of the English Bill of Rights the House of Lords reversed a fine by referring to Magna Carta and not to Article 10 See Earl of Devonshire s Case 11 State Tr 1367 1372 H L 1689 ruling that fine of 30 000 for striking another was excessive and exorbitant against Magna Charta the common right of the subject and the law of the land The Court argues that Chapter 20 of Magna Carta and Article 10 of the English Bill of Rights were concerned only with limiting governmental abuses of power Because amercements and fines were paid to the Crown the Court assumes that governmental abuses can only take place when the sovereign itself exacts a penalty That assumption however simply recalls the historical accident that prior to the mid 18th century monetary sanctions filled the coffers of the King and his barons As early as 1275 with the First Statute of Westminster double and treble damages were allowed by statute See ante at 274 However it was only after the prevalence of the amercement had diminished that the cases began to report the award of punitive damages as a common law entitlement Massey 1266 One of the first reported cases allowing punitive damages is Wilkes v Wood Lofft 1 18 19 98 Eng Rep 489 498 499 K B 1763 A jury have it in their power to give damages for more than the injury received Damages are designed not only as satisfaction to the injured p rson but likewise as a punishment to the guilty to deter from any such proceeding for the future and as a proof of the detestation of the jury to the action itself The link between the gradual disappearance of the amercement and the emergence of punitive damages provides strong historical support for applying the Excessive Fines Clause to awards of punitive damages See Boston 728 732 The case of Lord Townsend v Hughes 2 Mod 150 151 86 Eng Rep 994 994 995 C P 1677 cited by the Court ante at 268 272 is not inconsistent with this understanding of history At the time Hughes was decided damages were understood only as compensation for injury See T Blount Law Dictionary 1670 Blount unpaginated defining damages as a recompense for what the Plaintiff or Demandant hath suffered by means of the wrong done him by the Defendant or Tenant emphasis added Hughes involved an action for slander and the jury was told to award damages for the harm the plaintiff had sustained The damages awarded were entirely compensatory and did not contain any punitive element whatsoever Thus Hughes does not stand for the proposition that Magna Carta is inapplicable to punitive damages awarded in civil cases For the same reasons neither do the commentaries cited by the Court differentiating between damages and amercements See ante at 265 n 7 270 n 13 The damages referred to in those commentaries are compensatory and not punitive in nature See e g Introduction to the Curia Regis Rolls 1199 1230 A D in 62 Publications of the Selden Society 463 C Flower ed 1944 damages represented the loss incurred by a litigant through an unlawful act emphasis added Amercements and fines were not meant to compensate the injured plaintiff but rather to punish the wrongdoer and express society s displeasure at the improper act Compensatory damages even in Saxon England had not been limited by Magna Carta which was meant to ensure that monetary penalties assessed in addition to compensatory sums have some measure of proportionality The Court also points out that in Rookes v Barnard 1964 A C 1129 1221 1231 Lord Devlin in his extensive discussion of exemplary damages and decision to limit them to certain cases did not mention either Magna Carta or the Excessive Fines Clause of the English Bill of Rights Ante at 273 n 18 Although this is a small point I think the Court is mistaken to place any reliance on the lack of citation to Magna Carta or the English Bill of Rights in Rookes English courts today need not cite those two documents for the principles set forth in them are now ingrained as part of the common law See J Holt Magna Carta 2 1965 It is now possible and indeed justifiable for a lawyer to compose a general survey of the freedom of the individual in England without once referring to Magna Carta Indeed English courts have not cited Magna Carta or the English Bill of Rights in cases involving the excessiveness of criminal fines See Queen v Asif 82 Cr App R 123 1985 upholding fine of 25 000 for fraudulent evasion of taxes Queen v Farenden 6 Cr App R S 42 1984 finding that fine of 250 for first offense of careless driving was too heavy and reducing it to 100 Moreover Lord Devlin noted in Rookes that punitive damages could be used against liberty Some of the awards that juries have made in the past seem to me to amount to a greater punishment than would be likely to be incurred if the conduct were criminal I should not allow the respect which is traditionally paid to an assessment of damages by a jury to prevent me from seeing that the weapon is used without restraint 1964 A C at 1227 Thus he suggested that some limits might have to be placed on punitive damages It may even be that the House of Lords may find it necessary to place some arbitrary limit on awards of damages that are made by way of punishment Exhortations to be moderate may not be enough Id at 1227 1228 C There was little debate over the Eighth Amendment in the First Congress and no discussion of the Excessive Fines Clause Consideration of the Eighth Amendment immediately followed consideration of the Fifth Amendment After deciding to confine the benefits of the Self Incrimination Clause of the Fifth Amendment to criminal proceedings the Framers turned their attention to the Eighth Amendment There were no proposals to limit that Amendment to criminal proceedings and the only discussion was by Mr Smith of South Carolina and Mr Livermore of New Hampshire both of whom thought that the Cruel and Unusual Punishments Clause was too indefinite See Granucci 842 Weems v United States 217 U S 349 368 369 30 S Ct 544 549 550 54 L Ed 793 1910 Exactly what significance the silence of the Framers has in constitutional interpretation is open to debate compare e g L Tribe Constitutional Choices 42 44 1985 with e g Powell Rules for Originalists 73 Va L Rev 659 671 672 1987 but it is not necessary to address that issue here The Eighth Amendment was based directly on Article I 9 of the Virginia Declaration of Rights of 1776 which had in turn adopted verbatim the language of 10 of the English Bill of Rights There can be no doubt that the Declaration of Rights guaranteed at least the liberties and privileges of Englishmen Solem v Helm 463 U S 277 285 286 n 10 103 S Ct 3001 3007 n 10 77 L Ed 2d 637 1983 See also A Howard The Road from Runnymede Magna Carta and Constitutionalism in America 205 207 1968 Howard If anything is apparent from the history set forth above it is that a monetary penalty in England could be excessive and that there is a strong link between amercements which were assessed in civil cases and fines Cf Solem supra at 284 n 8 103 S Ct at 3006 n 8 an amercement was similar to a modern day fine There is in short considerable historical support for application of the Excessive Fines Clause to punitive damages The Court however thinks otherwise and emphasizes that at the time the Eighth Amendment was enacted the word fine was understood to mean a payment to a sovereign as punishment for some offense Ante at 265 and n 6 In my view the meaning of that word was much more ambiguous than the Court is willing to concede In defining the word fine some 18th century dictionaries did not mention to whom the money was paid See e g T Sheridan A Dictionary of the English Language 6th ed 1796 unpaginated a mulct or a pecuniary punishment S Johnson A Dictionary of the English Language 7th ed 1785 unpaginated a mulct or pecuniary punishment a penalty or money paid for any exemption or liberty To the same effect are some 19th century dictionaries See e g 1 C Richardson A New Dictionary of the English Language 796 1839 any thing as a sum of money paid at the end to make an end termination or conclusion of a suit of a prosecution That the word fine had a broader meaning in the 18th century is also illustrated by the language of 37 of the Massachusetts Body of Liberties of 1641 That provision granted courts the authority to impose on a civil plaintiff who had instituted an improper suit a proportionable fine to the use of the defendant or accused person 1 B Schwartz The Bill of Rights A Documentary History 76 1971 emphasis added It is noteworthy that the fine was payable to a private party and not a governmental entity Boston 714 In 1646 the Massachusetts General Court ruled that 37 of the Body of Liberties was based directly on Chapter 20 of Magna Carta Howard 401 404 The Court also finds it significant that in the 18th and 19th centuries fines were assessed in criminal rather than in private civil actions Ante at 265 and n 7 Again in my view the Court s recitation of history is not complete As noted above 37 of the Massachusetts Body of Liberties required that fines payable to private litigants in civil cases be proportional Furthermore not all 17th century sources unequivocally linked fines with criminal proceedings See Blount fine is sometimes an amends pecuniary punishment or recompence upon an offence committed against the King and his laws or a Lord of a Mannor emphasis added Nor did all American courts in the 19th century view fines as exclusively criminal The Massachusetts Supreme Judicial Court held that the word fine in a statute meant forfeitures and penalties recoverable in civil actions as well as pecuniary punishments inflicted by sentence Hanscomb v Russell 77 Mass 373 375 1858 It explained that the word fine has other meanings besides pecuniary penalties inflicted by sentence of a court in the exercise of criminal jurisdiction as appears by most of the dictionaries of our language where it is defined not only as a pecuniary punishment but also as a forfeiture a penalty etc Id at 374 375 The Iowa Supreme Court had the following to say about fines The terms fine forfeiture and penalty are often used loosely and even confusedly A fine is a pecuniary penalty and is commonly perhaps always to be collected by suit in some form A forfeiture is a penalty by which one loses his rights and interest in his property Gosselink v Campbell 4 Iowa 296 300 1856 emphasis added Hence around the time of the framing and enactment of the Eighth Amendment some courts and commentators believed that the word fine encompassed civil penalties D In my view the 6 million award of punitive damages imposed on BFI constitutes a fine subject to the limitations of the Eighth Amendment In current usage the word fine comprehends a forfeiture or penalty recoverable in a civil action See Black s Law Dictionary 569 5th ed 1979 Webster s Third New International Dictionary 852 1971 Not only is that understanding supported by the history set forth above

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