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Title XI: Jury Trial for Criminal Contempt
EDITORS' NOTE: Amendments to both the civil rights bill and the federal criminal code giving the accused the right to demand a trial by jury in all criminal contempt cases were proposed by Senator Talmadge (D., Ga.). In a lengthy discussion of his proposals, Senator Talmadge made clear that be did not intend to provide the right to trial by jury in civil contempt cases or in cases where the contempt was committed in the presence of the judge or so near to the court as to obstruct the administration of justice. The Talmadge amendment eventually was withdrawn; the Senate adopted instead an amendment introduced by Senator Morton (R., Ky.) that provides for a jury trial, upon demand of the accused, in criminal contempt cases under all titles of the Act except Title I (voting cases).
AMENDMENT NO. 513
Mr. TALMADGE. Mr. President, on behalf of myself, the senior Senator from North Carolina [Mr. ERVIN], the junior Senator from Virginia [Mr. ROBERTSON], the junior Senator from South Carolina [Mr. THURMOND], and the junior Senator from Mississippi [Mr. STENNIS), I send an amendment to the desk and ask that it be read and made the pending business.
The PRESIDING OFFICER. amendment will be stated.
The CHIEF CLERK. On page 54, between lines 7 and 8, insert the following new title:
TITLE XI-AMENDMENT TO THE FEDERAL CRIM-
SEC. 1101. Section 402 of title 18 of the United States Code is hereby amended to read as follows:
"SEC. 402. CRIMINAL CONTEMPTS
"Any person, corporation or association willfully disobeying or obstructing any lawful writ, process, order, rule, decree or command of any court of the United States or any court of the District of Columbia shall be prosecuted for criminal contempt as provided in section 3691 of this title and shall be punished by fine or imprisonment, or both: Provided, however, That in case the accused is a natural person the fine to be paid shall not exceed the sum of $1,000, nor shall such
"This section shall not be construed to apply to contempts committed in the presence of the court or so near thereto as to obstruct the administration of justice, nor to the misbehavior, misconduct, or disobedience of any officer of the court in respect to writs, orders or process of the court.
"Nor shall anything herein or in any other provision of law be construed to deprive courts of their power, by civil contempt proceedings, without a jury, to secure compliance with or to prevent obstruction of, as distinguished from punishment for violations of, any lawful writ, process, order, rule, decree or command of the court in accordance with the prevailing usages of law and equity, including the power of detention."
SEC. 1102. Section 3691 of title 18 of the United States Code is hereby amended to read as follows:
"SEC. 3691. JURY TRIAL OF CRIMINAL CON
"In any proceeding for criminal contempt for willful disobedience of or obstruction to any lawful writ, process, order, rule, decree, or command of any court of the United States or any court of the District of Columbia, the accused, upon demand therefor, shall be entitled to trial by a jury, which shall conform as near as may be to the practice in criminal case.
"This section shall not apply to contempts committed in the presence of the court, or so near thereto as to obstruct the administraion of justice, nor to the misbehavior, misconduct, or disobedience of any officer of the court in respect to writs, orders, or process of the court.
"Nor shall anything herein or in any other provision of law be construed to deprive courts of their power, by civil contempt proceedings, without a jury, to secure compliance with or to prevent obstruction of, as distinguished from punishment for violations of,
command of the court in accordance with the prevailing usages of law and equity, including the power of detention."
SEC. 1103. Sec. 151 of Part V of the Civil Rights Act of 1957 (71 Stat. 638, 42 U.S.C. 1995) is hereby repealed.
On lines 15, 16, and 17 of page 11, strike out subsection (c) of section 205. On line 8 of page 54, change the designation of title XI to title XII.
On lines 9, 14, 22, and 24 of page 54, change the designations of sections 1101, 1102, 1103, and 1104, to sections 1201, 1202, 1203, and 1204, respectively.
The PRESIDING OFFICER. The question is on agreeing to amendment No. 513 offered by the junior Senator from Georgia, for himself and other Senators.
Mr. KEATING. Mr. President, will the Senator yield for a question?
Mr. TALMADGE. I yield to the Senator from New York.
Mr. KEATING. Inasmuch as I have the responsibility, momentarily, for this side of the aisle, I should like to inquire of the distinguished Senator from Georgia whether he intends to press for a vote on his amendment tonight.
Mr. TALMADGE. I doubt that the amendment will come to a vote this evening.
Mr. KEATING. I wished to alert my colleagues if there was any intention on the part of the Senator from Georgia to have a vote on the amendment this evening.
Mr. TALMADGE. The Senator would be safe if he reported to his colleagues that the amendment will not be voted on this evening.
Mr. ROBERTSON. Mr. President, will the Senator yield?
Mr. TALMADGE. I yield to my able friend from Virginia, who has made two magnificent speeches in recent weeks on the right of trial by jury, has inserted various documents in the RECORD, and has offered two amendments that are now pending at the desk which would accomplish the same thing.
Mr. ROBERTSON. Naturally I appreciate the high tribute the Senator has paid me. I am very proud to be associated with the ablest constitutional lawyer in the Senate, the senior Senator from North Carolina Mr. ERVIN]-I do not believe there is any question about that and the other very able and distinguished lawyer from Georgia [Mr. TALMADGE], in the offering of the amendment. It is a vital amendment. It goes to the very heart of what the bill pro
poses, namely, to take away from the citizens of this Nation one of the most precious rights which has come down to us from the earliest days of Magna Charta, back to 1215, and all the way down, trial by jury of criminal cases.
The distinguished Senator from Georgia has mentioned the fact that I have made several speeches on the issue of trial by jury, and that I have offered an amendment dealing with title VII.
He was well advised when he told the distinguished Senator from New York [Mr. KEATING] that there would be no vote on the amendment tonight. I believe the Senate can reasonably look forward to a considerable elucidation of what is involved. When the appropriate time comes, the junior Senator from Virginia proposes to show that the cases cited last week by the distinguished Senator from Illinois [Mr. DOUGLAS] have no bearing whatever upon this issue.
They were all State cases. The majority of them were offenses committed in the presence of the judge, which this amendment would eliminate. We are dealing now with criminal procedures in Federal court.
Everyone knows that the Federal courts were created either in the Constitution itself-that is the Supreme Court or authorized by the Constitution to be created by Congress. Consequently, Federal courts must of necessity operate under the Constitution. We shall point out that under the Constitution all actions by the Crown against an individual in the nature of criminal contempt were considered criminal. Therefore, when the Constitution provided that every man should be entitled to a jury trial in criminal cases, it contemplated exactly what we are proposing to do now.
We do not have a King George to operate on us. But we do have the necessity for the counterpart of a King George, which is our Federal Government. Therefore I say that we are proposing to preserve a very precious constitutional right to the individuals of this Nation. Neither the distinguished Senator from Georgia, the Senator from North Carolina, the Senator from Virginia, nor any of us who want to preserve a constitutional privilege can tell any Senator how to vote. But before this debate is over, we shall make it crystal clear that Senators who vote to deprive their constituents of their constitutional right in criminal contempt cases to a jury trial might as well admit that they
are doing it because the NAACP is demanding that only Federal judges shall pass on such criminal cases. It is claimed that Southern juries will not convict.
We intend to make that issue crystal clear. It would be useless for any Senator to try to dodge that issue. The issue will be that simple-either a Senator I will vote with the NAACP to take away from our citizens the right of a jury trial, or they will vote to preserve a cherished right of all Americans which has come down to us from the Magna Carta.
Mr. President, I appreciate the kindness of the Senator from Georgia.
Mr. TALMADGE. Mr. President, I am grateful indeed for the personal reference and the words of great wisdom that have been given us by the junior Senator from Virginia.
With reference to his personal reference, the Supreme Court of the United States has repealed a high percentage of the law that I learned in law school and that I have studied since that time. So I am not as familiar with the new cases as I was with the old ones.
As the Senator from Virginia has pointed out, it is indeed a basic and fundamental civil right that we have proposed in the pending amendment. It was wrested by our British forebears from King John at Runnymede in 1215. Since that time, the right of trial by jury in all Anglo-Saxon jurisdictions has been held to be a sacred privilege of personal liberty.
The denial of the right of a trial by jury to our forebears in the original Colonies was one of the reasons why our forebears instituted a revolution and made the Declaration of Independence.
One of the charges in the Declaration of Independence was the charge against King George III that he had denied them the right of a trial by jury by writing the admiralty law which denied them the right of a fair and just jury trial.
In order that Senators and others who read the RECORD may know the legal problem, and the full distinction between criminal contempt and civil contempt, I wish to read into the RECORD at this point a legal brief that gives the distinction between the two terms, so that Senators will know what they are referring to when they speak of criminal contempt and when they speak of civil contempt.
The brief is as follows:
In a proper case where a court of equity has commanded the defendant to perform a certain act or to refrain therefrom, the court has the power to enforce such command by contempt proceedings. This power of AngloSaxon jurisprudence grew out of the concept of contempt of the King's authority.
The contempt can be direct (arising out of acts committed in the physical presence of the court) or constructive (arising out of acts committed out of the physical presence of the court).
There are two types of contempt proceedings-civil and criminal. The distinction is based on the character and purpose of the suit. If remedial, it is civil contempt. If punitive, it is criminal contempt. The following rules generally apply:
Criminal: (1) Punitive punishment, (2) plaintiff is U.S. Government, (3) imprisonment for fixed period, (4) fine paid into court, (5) proved guilty beyond a reasonable doubt, (6) defendant cannot be compelled to testify against himself, (7) case cannot be settled out of court.
Civil: (1) Remedial, (2) plaintiff is the original plaintiff in the injunction suit, (3) imprisonment only to coerce, (4) fine is paid to plaintiff, (5) proved guilty by a preponderance of the evidence, (6) case can be settled out of court.
When a defendant refuses to perform or refrain from an order of the court, he is guilty of both civil and criminal contempt. The former suit filed by the original plaintiff; the latter suit by the United States through the district attorney.
II. THE PERTINENT FEDERAL STATUTES AND RULES A substantial number of Federal statutes relate, in one way or another, to contempt and contempt proceedings. However, the basic statutory provisions are relatively simple. Section 401 of title 18 of the United States Code Annotated, "Crimes and Criminal Procedure", provides:
" 401. Power of court:
"A court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as
"(1) Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice;
"(2) Misbehavior of any of its officers in their official transactions;
"(3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command. June 25, 1948, e. 645, 62 Stat. 701."
Section 402 of the same title requires that contempts involving willful disobedience of any lawful writ, process, order, rule, decree, or command of any district court which are of such a such character as to constitute also a criminal offense shall be pros
ecuted as provided in section 3691 of the same title. The latter section requires trial by jury conforming as nearly as may be to the practice in other criminal cases, except in certain specified instances. Section 3692 of the same title contains a provision for jury trial in 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.
Section 402 also contains a provision that fines assessed pursuant to its provisions may be paid either to the United States or to the complainant or other party injured and includes a provision for apportionment where more than one party is damaged. The section also specifically excludes from its coverage direct contempts and contempts in disobedience of any lawful order in a suit brought or prosecuted in the name or on behalf of the United States and provides that all other cases of contempt including the two specifically excepted may be punished in conformity with the prevailing usages at law.
Rule 42 of the Federal Rules of Criminal Procedure, 18 U.S.C.A., deals with the subject of criminal contempt providing for summary punishment if the judge certifies that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court and apparently requiring specific notice at the commencement of the contempt proceedings of the criminal nature of the proceedings in all other cases of criminal contempt.
III. DIFFERENCES IN PROCEDURE DURING TRIAL Right to trial by jury: There is no right to trial by jury in summary contempt actions, even though such acts also constitute indictable offenses. As far as criminal contempt actions are concerned, there is a right to trial by jury (1) in all cases in which acts of Congress so provide; (2) where the acts charged also constitute a criminal offense under any act of Congress or under laws of any State, 18 US.C.A. 3691. However, in instances (1) and (2) no right to trial by jury is given where the contemptuous act consisted of disobedience to an order, rule, or decree entered in an action brought or prosecuted in the name of or on behalf of the United States, 18 U.S.C.A. 402. (3) In contempt actions arising out of violation of injunctions or restraining orders Issued under Federal Labor Laws, 18 U.S.C.A. 3692. Situation 3, supra, is the only one in which the right to trial by jury exists in civil contempt actions since 18 U.S.C.A. 3691, referring to contempt proceedings brought to punish acts which also constitute criminal offenses, does not apply to civil contempt actions. United States v. Onan, 8 Cir., 1951, 190 F. 2d 1, certiorari denied 342 U.S. 869, 72 S. Ct. 112, 96 L. Ed. 654. In addition to having the safeguard of a jury trial, where applicable, the defendant in a criminal contempt proceeding is surrounded by a presumption of innocence. United States v. Fleischman, 1950, 339 U.S. 349, 70 S. Ct. 739, 94 L. Ed. 906, and
is protected by the fact that the acts complained of must be established beyond s reasonable doubt. The defendant in a civil contempt proceeding on the other hand is confronted by a plaintiff who must establish the acts complained of only by clear and convincing evidence. For v. Capital Co., 3 Cir., 1938, 96 F. 2d 684.
Again, while the privilege against self-incrimination may successfully be asserted to avoid disclosure of acts constituting or relating to criminal contempt (see Parker v. United States, supra, 153 F. 2d at p. 70). no such claim is possible where the acts, if disclosed, would show civil contempt only. On the other hand, greater safeguards are provided in a civil contempt proceeding by the requirement that facts must be found specially, Fed. R. Civ. P. 52, than are provided in a criminal contempt proceeding, where only general findings of fact are required unless a party requests otherwise, Fed. R. Crim. P. 23(c). The limitation period within which actions for criminal contempt must be commenced is 3 years, 18 U.S.C.A. 3282, for constructive as well as for summary contempt (Pendergast v. U.S., 317 U.S. 412 (1943)); but where the contempt also constitutes a crime and does not consist of disobedience to an order entered in any suit prosecuted by the United States the period is 1 year, 18 US.C.A. 3285. There seems to be no general Federal limitation statute applicable to civil contempt actions.
Judgments, amount of: The theory which underlies a criminal contempt proceeding is that the action is punitive; such contempt is sanctioned by a fine payable to the Government or by the imprisonment, 18 U.S.C.A. 401, of contemnor for 8 definite time, Gompers v. Buck's Stove & Range Co., 1911, 221 U.S. 418, 31 S. Ct. 492, 55 L. Ed. 797. The amount of the punishment which may be imposed in criminal contempt actions where the act complained of also constitutes a crime is limited in cases where th ACcused is a natural person to 6 months confinement and/or a fine of $1,000 if the fine is payable to the United States, 18 U.S.C.A. 402. This limitation 18, however, inapplicable to proceedings for summary contempt and to proceedings for contempt of orders which were issued in suits brought or prosecuted in the name of or on behalf of the United States. The award in civil contempt proceedings is meant to be compensatory or coercive, and not punitive. The measure of the court's power in civil contempt proceedings is determined by the requirements of full remedial relief including costs and reasonable counsel fees, Eustace v. Lynch, 9 Cir., 1935, 80 F. 2d 652; Norstrom v. Wahl, 9 Cir., 1930, 41 F. 2d 910; McComb v. Jacksonville Paper Co., 1949, 336 U.S. 187, 69 S. Ct. 497, 93 L. Ed. 599. Also, in a civil contempt proceding the time of imprisonment cannot be for a definite time, Gompers v. Buck's Stove & Range Co., 221 U.S. at page 443. 31 S. Ct. at page 498; Parker v. United States. 153 F. 2d at page 70, since the ʊbjîît
is not to punish defendant but to compel his obedience to the court's decree. Unlike the situation in a criminal contempt proceeding where the court in its discretion can withhold punishment, in a civil proceeding the prevailing party is entitled to its remedial order as of right, Parker v. United States, supra. While death of a party, pending review, abates a criminal contempt proceeding, McGovern v. United States, 7 Cir., 1922, 280 F. 73. certiorari denied 259 U.S. 580, 42 S. Ct. 464, 66 L. Ed. 1073. a civil contempt action is not abated and the fine is assessable against defendant's estate, Wasserman v. United States. 8 Cir., 1908. 161 F. 722, reversed by stipulation on other grounds, 8 Cir., 1909. 166 F. 1022.
Yet another difference between the punishment which can be imposed in these two classes of proceedings is that, where the proceeding is of a criminal nature, accused may be relieved from the punishment Imposed by exercise of the executive pardon, U.S. Constitution, article II, section 2. provides for Presidential pardon of sentences imposed for "offenses against the United States."
Mr. President, I have briefly summarized the distinction between criminal contempt and civil contempt. I hope readers of the RECORD and my colleagues in the Senate will familiarize themselves with the distinction, because criminal contempt involves punishment for a crime, and the Constitution of the United States provides that cases involving crimes must be tried by jury. That right has been inherent in Anglo-Saxon jurisprudence from 1215, the date of the Magna Carta, up to the present time. We have been encroaching upon that right by various provisions-for example, by holding that, if the Federal Government brings an action for criminal contempt, a citizen is not entitled to a jury trial.
I hold that there is an even greater reason why a citizen should have the right of a trial by jury. When the power, the might, the wealth, and the legal talent of the entire U.S. Government are arrayed against a citizen, there is an even greater reason why he should have the right of trial by jury than would be the case if John Smith or Sam Jones had brought a proceeding against him. To begin with, when the might and power of the U.S. Government are arrayed against a citizen, the contest is unequal. It ought to be equalized through the traditional right of trial by jury provided in the Constitution.
The late President Kennedy, and our present President, Mr. Johnson, and our distinguished majority leader, the Senator from Montana, exercised great wisdom when they voted for the jury trial
amendment in 1957, which provides for jury trials in all criminal contempt cases. That amendment passed the Senate by an overwhelming majority, but when it reached a conference with the House of Representatives it was in some respects emasculated and mutilated.
We are now being asked to vest in the U.S. Government and its appointed officials powers far more vast than have ever been vested in any official of the U.S. Government.
If the pending bill passes in substantially its present form, the Attorney General will become, at one fell swoop, the most powerful officer of the U.S. Government. He will possess more power, if the bill is enacted into law, than the PresiIdent of the United States has ever possessed in the entire history of our country.
If we are to clothe these Federal officials with such vast powers, the least we can do is perform our duty under the Constitution of the United States to uphold and protect the right of trial by jury in matters of this nature.
Mr. President, this bill purports to confer upon certain classes of citizens, certain rights, but the truth of the matter is that in the process, the American people would lose most of their fundamental liberties which has made ours the greatest and freest nation on the face of the earth.