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Criminal vs. Civil Contempt

The Washington Post reports today that Judith Miller may be charged with criminal contempt which would lengthen her jail stay. This has been reported several times before, but Atrios asks a good question: What's the difference between criminal contempt and civil contempt?

In a nutshell, civil contempt is a coercive measure - it is used to try and get the person to talk. If Judith Miller were to change her mind and testify while jailed for civil contempt, she would be considered to have purged herself of the contempt.

Criminal contempt is a punitive measure, used when it is clear that the person is not going to talk. It's meant to punish someone for violating a court order, to vindicate the dignity of the court and to deter others from doing so.

Second, civil contempt has a penalty limit in the grand jury context: the life of the grand jury (or any successive grand jury) investigating the matter. Grand juries serve for 18 months.

Believe it or not, a criminal contempt charge carries a maximum penalty of life in prison. There is no maximum penalty set by the statute, which makes any sentence up to life a possibility. However, the U.S. Sentencing Guidelines apply to criminal contempt, and while the offense does not have its own guideline penalty, the directions are to use the penalty for the crime that is most analagous to it. I think in Miller's case, it would be the guideline for obstruction of justice.

The U.S. Attorney's Manual describes the difference this way:

Because different substantive and procedural rules apply to civil and criminal contempts, distinctions between the two forms of contempt are important. "Criminal contempt is a crime in the ordinary sense," Bloom v. Illinois, 391 U.S. 194, 201 (1968), and "criminal penalties may not be imposed on someone who has not been afforded the protections that the Constitution requires of such criminal proceedings." Hicks v. Feiock, 485 U.S. 624, 632 (1988). These constitutional protections include the right (1) not to be subject to double jeopardy, see United States v. Dixon, 509 U.S. 688, 695 (1993); In re Bradley, 318 U.S. 50 (1943); (2) to receive notice of the charges, (3) to receive assistance of counsel; (4) to receive summary process; (5) to present a defense, Cooke v. United States, 267 U.S. 515, 537 (1925); (6) not to self-incriminate oneself, and (7) to proof beyond a reasonable doubt, Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 444 (1911). For serious criminal contempts involving imprisonment of more than six months, these protections include the right to a jury trial. Bloom, 391 U.S. at 199.

By contrast, civil contempt sanctions--which are designed to compel future compliance with a court order--are coercive and avoidable through obedience, and "thus may be imposed in an ordinary civil proceeding upon notice and an opportunity to be heard. Neither a jury trial nor proof beyond a reasonable doubt is required." International Union, UMWA v. Bagwell, 512 U.S. 821, 114 S.Ct. 2552, 2557 (1994).

More contempt-related provisions in the U.S. Attorney's Manual are assembled here.

As to how likely it is that Fitzgerald will charge Judith Miller with criminal contempt, I mentioned here that Patrick Fitzgerald included this in his court pleading (pdf) as to why Judith Miller should not get home detention or be sent to a federal prison camp:

The question is whether Miller would defy a final court order and commit the crime of contempt and thereby obstruct an investigation of persons who may have compromised classified information.

....If Miller persists in unlawfully depriving the grand jury of her prospective testimony and documents, which the Court of Appeals found to be “both critical and unobtainable from any other source” and necessary to an effort “to remedy[] a serious breach of the public trust,” she will frustrate the purpose of this national security investigation where the Court of Appeals noted the “gravity of the suspected crime.”

Just for fun, check out this press release from the Department of Justice in March, 2004, when they charged a man named John Vitello with criminal contempt, after he had served seven months of a civil contempt sentence for refusing to testify before the grand jury in an organized crime investigation. The press release concerns Mr. Vitello's decision to plead guilty to the criminal contempt charge.

VITELLO faces a maximum penalty of life in prison, an unlimited fine, and a five-year period of court-supervised release when he is sentenced by Judge Dorsey on June 4, 2004. VITELLO was released on bail pending sentencing.

Here's an earlier TalkLeft post on different standards used by different circuits in civil and criminal contempt cases.

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    Re: Criminal vs. Civil Contempt (none / 0) (#1)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:01:18 PM EST
    This is by far the most incisive analysis of the Plame leak affair I've seen so far. As a truly scathing indictment of Rove and his ilk, this one is truly worth a read, folks. Ensoi.

    Re: Criminal vs. Civil Contempt (none / 0) (#2)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:01:18 PM EST
    Judith Miller is a petty person of no tremendous character. If charged with criminal contempt she will either a) testify (and potentially lie) or b) go to jail for contempt in order to avoid implicating herself for more serious crimes if she talks. As torn as I am over the whole issue of jailing reporters in the abstract, I hope they throw the book at her.

    Re: Criminal vs. Civil Contempt (none / 0) (#3)
    by Mreddieb on Sat Dec 17, 2005 at 01:01:18 PM EST
    Anyone remember Susan Mcdougal from the Clinton White water investigation. I think Judith Millers refusal is a far more serious matter than her's. National Security vs corruption over a land deal. I think one day after Miller is released she should be notified the DA is going to press for criminal contempt. The idea of going back to jail will make her start squealing so loud Karl Rover will get a migrain!

    Re: Criminal vs. Civil Contempt (none / 0) (#4)
    by ras on Sat Dec 17, 2005 at 01:01:18 PM EST
    This just in ... Miller talked! Her source was Bill Clinton who apparently got the info from classified documents taken by Sandy Berger. [kidding, kidding! ... or am I?]

    Re: Criminal vs. Civil Contempt (none / 0) (#5)
    by Ernesto Del Mundo on Sat Dec 17, 2005 at 01:01:18 PM EST
    Judy is a most pathetic figure...a willing martyr for the Rove Slime Machine. Remember, this was the same machine that worked their magic during the 2000 South Carolina primary and elsewhere. They are beneath contempt, as is Judy for pushing Neocon lies in the Iraq ramp up. That's what she should be in jail for. Regardless, it's good to see that the pressure being racheted up on her. And another heartening sign... judging by the squirming and spinning of the wingnuts it sure as heck looks like Rove's big fat pink backside is firmly in a sling. Throw some BBQ sauce on that pig whilst the spit turns ever so slooooowly. :D

    Re: Criminal vs. Civil Contempt (none / 0) (#6)
    by RocksRock on Sat Dec 17, 2005 at 01:01:18 PM EST
    I think another difference between civil and criminal contempt is that she could be pardoned for a criminal charge. A criminal charge would mean a lengthier jail stay for most people, but maybe it would mean the opposite for Miller since its not too hard to imagine Bush pardoning her.

    Re: Criminal vs. Civil Contempt (none / 0) (#7)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:01:19 PM EST
    TL: Ummm, the maximum penalty for criminal contempt (unlesss there is a JURY trial) is six-months, albeit you can string the six-monthers back-to-back-to-back ad infinitum. There is a little something we in the biz like to call the sixth amendment which guarantees the right to a jury trial for any violation of law that carries more than six months unless there is an explicit on the record waiver of that right.

    Re: Criminal vs. Civil Contempt (none / 0) (#8)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:01:19 PM EST
    The maximum is still life and it's still calculated under the guidelines. All the judge has to do is decide intially if he's likely to give her more than six months and if so, he calls for a jury to try it. I guess I see the relevance of the jury trial issue.

    Re: Criminal vs. Civil Contempt (none / 0) (#9)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:01:19 PM EST
    TL: Don't mean to sound snarky (and my last post certainly did), in practical terms no one ever gets a jury trial for contempt as it is too easy for judges to pull the trigger on 180 days confinement back to back to back, ala Susan McDougal. I am not saying that there never has been a criminal contempt jury trial, just that they are exceptionally rare.

    Re: Criminal vs. Civil Contempt (none / 0) (#10)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:01:23 PM EST
    Most of the comments seem to miss the fundamental issue in the Judith Miller case, which is whether a journalist should be given the constitutional right to protect a confidential source.

    Re: Criminal vs. Civil Contempt (none / 0) (#11)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:01:25 PM EST
    Is it true that since going to jail the quality of Judith Millerís reports has not changed? Ms Millerís sources are NOT whistle blowers no matter what the right wingnuts try to spin. She is a leach defending her source of blood. Unnamed sources in hard news is a cancer in the body of news reporting. Her stories from unnamed sources on the WMDís and mobile bio-labs in Iraq contributed greatly to the justification for the invasion. And they were all lies. They were all spin. Another example of why journalist should not use unattributed sources is the Kenneth Starr investigation of President Clinton. All the leaks coming out of the investigation were negative against Clinton. It was not until the final report was issued did we learn that Monica Lewinsky testified that Clinton in NO way tried to influence her testimony. That is a juicy bit of news but it went unleaked and unknown until after the report came out, so the only news being reported on front pages and lead offs in broadcast were the highly bias leaks. Only in a transparent news report can we assign credibility to any newsbyte. Journalism will be better served as long as Ms Miller is kept off the street.