9.0 Abolish unlimited-term coercive confinement for civil contempt

Criminal contempt, committed when a party disobeys a court order, is punishable by less than a year in jail. Civil-contempt punishment, imposed to coerce obedience to court orders, may last much longer. The greater potential punishment for the lesser offense is a legal absurdity.

Arguments

Courts use moralistic and pragmatic arguments to benumb lawyers to this anomaly. The moralistic argument is mere incantation: "the contemnor has the key to the cell in his own pocket." (Green v. United States (1958) 356 U.S. 165, 197 [dissenting opn., Black, J.].) This slogan contains a logical fallacy, in implying the defendant exercises a different kind of self-control when the threat of punishment precedes rather than follows disobedience. The fallacy is a pervasive reasoning error, the hindsight bias, where observers perceive past events as determined and future events as free. The illusion created is that the defendant contemplating compliance with the order has free will, while the person having violated a court order is determined. The distinction is false: the defendant has the same potential control or lack of control over his conduct whether the court threatens him with punishment for disobedience or with coercion to induce compliance; the person subject to deterrence is free or both categories are determined. The judges' argument could justify any arbitrarily severe punishment administered after a party violates an order: the contempt respondent could avoid incarceration because he always held the key to his freedom.

The pragmatic argument is that courts couldn't function without the power to compel compliance with their orders. (Gompers v. Buck's Stove & Range Co. (1911) 221 U.S. 418, 438 - 9 [without coercive punishment, law rendered impotent].) This appraisal comes from the courts themselves, as the courts are the primary sponsor of contempt law. Judges' longstanding agreement on the principle is expected, since it concerns judges' most valued prerogative next to their paychecks. While courts must coerce, proponents of long-term coercive confinement haven't said why courts need the level of coercion law allows, when the threat of a few days or the experience of a few hours in jail suffices to persuade most witnesses to testify. Proponents of harsh coercion could argue with the same logic that if perjurers don't suffer life in prison, truthful witnesses would disappear—and with them functioning courts. Just as no perjury or contempt is serious enough to warrant life in prison, so no testimony or other compliance is important enough to justify indefinite detention and no civil matter so crucial to warrant long-term incarceration. Juries have always adapted to procedural limits on evidence and the limited means the law allows for its acquisition.

Threat

Although American citizens rarely suffer coercive confinement for long terms, most jurisdictions issue the potential long-term sentence each time their courts order indefinite coercive confinement for civil contempt. In a well-publicized recent case of long-term civil confinement, Pennsylvania released the defendant after 14-years confinement to coerce payment of alimony. In California, Richard Fine has spent more than a year in coercive confinement.

The case which settled constitutional jurisprudence on coercive confinement for civil contempt proves the threat. (See Gompers v. Buck's Stove & Range Co., supra, 221 U.S. 418.) An employer had enjoined Sam Gompers and other labor leaders from boycott under federal laws outlawing boycotts as restraints on trade. The trial court sentenced them to nine, six, and three months in jail, and the American Federation of Labor appealed the sentence. While the Supreme Court held the case moot because the parties had settled, it upheld the confinement on grounds that the district court erred in sentencing them to any definite term. The contempt was civil, a remedy to coerce compliance with court orders for a party's benefit, not a "punitive punishment" designed to uphold the court's authority.

The court released the union leaders only because the detentions outlived their usefulness, but what if the detention issue hadn't been mooted? If the boycott continued, the employer could use the courts to detain the AFL leaders for the boycott's duration. The disobedience to court order consisted of circulating pamphlets calling the company "unfair." The court decided that the term was a call to boycott, and it probably was, but how does a court facially distinguish a call to boycott from a political denunciation of unfair practices? How did the court expect the union to use its free-speech rights to criticize the company without using words like "unfair," which the court held acquired hidden meaning? How to distinguish between someone reading that the company is unfair and deciding not to buy from it and someone complying with an implicit boycott call? A single judge made these determinations, which threatened the leaders with incarceration during the dispute's duration. Citizens threatened by coercive incarceration aren't limited to millionaires avoiding alimony payments. The courts perfected civil-contempt laws and arguments justifying them by wielding these laws against ordinary working people.

Remedy

Indefinite coercive incarceration for civil contempt should be legislatively abolished because it overdeters or invalidated because it is cruel and unusual punishment. Overdeterrence occurs when the criminal laws punish excessively. The basic concept is that a deterrent not only deters the intended conduct but similar or associated conduct. Oppression through overdeterrence occurs if citizens could be imprisoned for life for stealing a piece of bread: some people would starve instead of committing petty theft. Punishment always harms even when it successfully deters, and it inflicts harm not only on the defendant but on society. Increasing the punishment for criminal contempt causes defendants to interpret injunctions broadly when they should be narrowly tailored. True, the overdeterrent effect is less deadly when the punishment is coercive instead of punitive, as the defendant is free to reverse course and suffer no more. With coercive detention, the main overdeterrence effect overenhances the court's power to get what it wants.

Holding punishment to moderate levels avoids oppression: moderately punitive laws don't scare citizens into complying more than society needs, and flouting the law sometimes benefits society. Just as acceptable laws become unacceptable when they excessively pressure citizens, so coercive detention can force excessive compliance. In the Gompers case, it would have been oppressive for the employer to break the back of the boycott through the courts; better that Gompers not suffer an infinite potential punishment; better that he be allowed to try to distribute his pamphlets in defiance than collapse before the will of a single judge. In a case like Richard Fine's in California, it doesn't promote democracy to allow a court to apply all necessary coercion to force financial disclosure. Better to leave Fine room to protect his principles and his privacy. Let the punishment fit the crime; let coercion fit its end.

Criminal contempt caps the justifiable deterrent force for civil contempt. If a year's incarceration is the longest punishment justifiable for acts of contempt, then one year is the limit on coercive confinement before it overdeters. The amount of justified coercive punishment can be no more than the amount of justified punitive punishment because coercive-punishment's immediacy and certainty augments its effectiveness.

The prospects for invalidating indefinite coercive detention are small: you won't find a judge who agrees that sometimes flouting a judge's lawful orders is in order. In judges' minds, concepts of overdeterrence can't apply to contempt remedies. Except when the legislature intervenes, courts swallow absurdity and embrace unlimited detention.

Coercive detention for more than a year is legally absurd, and under the Eighth Amendment, the limit for coercive detention should be set no higher than three months, after which coercive detention changes from a deprivation to the deliberate infliction of suffering. Coercive detention has no rehabilitative goals which could justify it, and at a point, holding a prisoner becomes nothing more than inflicting sufficient misery to induce compliance. Indefinite coercive detention is torture.