H. Beatty Chadwick, a former corporate lawyer, has been imprisoned in a Pennsylvania county jail for over 13 years even though he has never been arrested, criminally accused, or tried. Chadwick is imprisoned on contempt-of-court charges that sprang from a contentious divorce. His case dramatizes a continuing debate over the use and misuse of civil-contempt imprisonment.
Many people view contempt of civil court as an uncommon and relatively benign sanction that is flexed only to enforce court orders or respect for the court. If the sanction is seen to have bite, it is usually in connection with high-profile cases in which journalists refuse to reveal their sources and so are imprisoned until they relent or it is clear that further imprisonment will not compel compliance.
In reality such imprisonment seems to be commonplace and it can devastate lives. Arguably, the most common form of civil imprisonment is for nonpayment of child support. When a “deadbeat” parent is jailed for nonpayment by a family-court judge, the actual charge is contempt of civil court. How many “deadbeats” are imprisoned each year is unknown because family courts are not required to maintain such records and rarely do so. This means that family-court judges act with less transparency and less accountability than those in other venues do. Moreover, there is no national database of “deadbeat” parents incarcerated each year. In short, there is an amazing lack of data on such imprisonment, with estimates ranging from tens of thousands to hundreds of thousands.
What is contempt of court? The United States has two basic types of contempt: criminal and civil. Contempt of court has been called the “Proteus” of the legal system because Proteus was the Greek sea god who could change his shape at will. In short, contempt of court can assume many forms due to three factors: the judge is often the sole evaluator of when contempt has occurred; federal law differs from state laws, which often vary from each other; and criminal contempt is remedied differently from its civil parallel.
Nevertheless, all contempt charges share certain characteristics. In its most basic form, contempt of court is a ruling through which a judge sanctions a deliberate act or omission to act that he or she considers to be disobedient, obstructive, or disrespectful to the court. The ruling is the sternest remedy a judge can impose on “bad behavior,” such as refusing to obey a court order or uttering obscenities in court. Punishment can be imposed on anyone within the court, including attorneys, parties to a lawsuit or criminal action, witnesses, and spectators.
This article focuses on civil contempt on a state level and analyzes criminal contempt only by way of contrast. In theory a key difference is that criminal charges are more serious than civil ones and often involve the loss of liberty. Thus criminal defendants have protections of due process that civil defendants do not enjoy. In some cases, however, civil contempt involves imprisonment against which the offender, or contemnor, has no legal protection or recourse except eventual compliance.
What are some of the other key differences between civil and criminal contempt?
In both, contempt can be either direct or indirect. Direct contempt is committed in the presence of a presiding judge; for example, interrupting the judge. Indirect contempt is committed outside the presence of the presiding judge, for example, neglecting to pay court-ordered child support.
In civil court, once the direct contemnor has been advised of the contempt, a fine and/or imprisonment may be imposed immediately. The imprisonment is generally for a few days but can span months. The contemnor has no legal right to an attorney or a trial or any defense. The judge’s ruling cannot be appealed. In indirect civil contempt, the contemnor is entitled to notice and a hearing at which to present evidence and rebuttal. Then, at the sole discretion of the judge, the contemnor may be imprisoned until compliance is compelled. With noncompliant contemnors, imprisonment usually ends when the judge concludes that continuation is ineffective. If the judge does not reach that conclusion, it is possible for the imprisonment to be indefinite.
By contrast, in direct or indirect criminal contempt, the contemnor retains the rights of due process. The sentence, which is meant to punish rather than to compel compliance, is of a set length.
Thus in practice a civil-contempt charge can be far more serious than a criminal one.
Consider H. Beatty Chadwick’s 13 years of imprisonment. The facts of his case are straightforward. In 1977 Chadwick married Barbara Jean Crowther. In 1992, she filed for divorce. In 1994 Barbara Chadwick informed the court her husband had wired $2.5 million out of the country. The judge ordered him to retrieve the money and place it in a court-controlled account until the divorce was settled. Beatty Chadwick claimed that most of the money had been lost in a foreign business deal gone bad; however, a small fraction of the money showed up in a U.S. bank under his name and the court did not believe his story. In April 1995 Chadwick was imprisoned until the money was produced.
Traditionally, a contempt-of-court sentence continues only as long as there is a reasonable expectation of coercing compliance. Otherwise, the imprisonment becomes a punishment, which is a criminal sanction and beyond the authority of civil courts.
An Affront to Liberty
A 1974 New Jersey Supreme Court case, Catena v. Seidl, is often cited regarding this point in civil contempt. “It is abhorrent to our concept of personal freedom that the process of civil contempt can be used to jail a person indefinitely, possibly for life, even though he or she refuses to comply with the court’s order. . . . [C]ontinued imprisonment may reach a point where it becomes more punitive than coercive and thereby defeats the purpose of the commitment.”
In 2002 U.S. District Court Judge Norma Shapiro ordered Chadwick’s release on grounds that continued imprisonment would not compel compliance. That same year, then-Third U.S. Circuit Court of Appeals Judge Samuel Alito overturned Shapiro. He said, “Because the state courts have repeatedly found that Mr. Chadwick has the present ability to comply with the July 1994 state court order, we cannot disturb the state courts’ decision that there is no federal constitutional bar to Mr. Chadwick’s indefinite confinement for civil contempt so long as he retains the ability to comply with the order requiring him to pay over the money at issue.”
Thus Alito, now a U.S. Supreme Court justice, asserted the right of a civil court to hold a contemnor in prison in perpetuity. The only question was whether the contemnor has the ability to comply.
In Chadwick’s case the ability is far from clear. In 2003 former Pennsylvania Judge A. Leo Sereni oversaw an 18-month investigation in which two accounting firms attempted to track down Chadwick’s money. No trace was found beyond what had been identified a decade before. Sereni recommended Chadwick’s release, stating, “My God— if he had stolen $2 million, he would have been out a couple of years ago.” (Apparently, the state maximum for that crime is or was a seven-year term.) Chadwick’s lawyer has added that his elderly client now suffers from non-Hodgkin’s lymphoma and requires “outside” medical attention.
In February 2006 the presiding court held that Sereni had “overstepped his bounds” and Chadwick’s incarceration should continue.
Is the Chadwick case an aberration that has slipped through the cracks of an otherwise reasonable system? Or is it an extreme example of a commonplace occurrence that suggests family courts are out of control in the use of contempt imprisonment?
The “legal crack” theory confronts a problem. According to the Chicago Tribune, the case has produced “a dozen pleas to the county courts, nine to state appeals courts, nine to the Pennsylvania Supreme Court, six to the nearby federal court, four to the Third Circuit Court of Appeals and two to the U.S. Supreme Court.” For an injustice to withstand sustained efforts to remedy it, the “crack” has to be both massive and widespread. A mere aberration should be easier to correct, and higher courts should not affirm it.
Yet if the Chadwick case points to widespread abuse, how should civil contempt be reformed? Or, more fundamentally, should the sanction be abandoned entirely?
Abandoning civil contempt would not be absurd. After all, that specific power derives from British common law. Civil law, which is also known as Continental or Romano-Germanic law, is at least as widespread as common law; for example, it is the basis of French Civil Law and the Swiss Civil Code. The fundamental difference between the two systems is that common law derives rules or precedents from specific cases and civil law starts with rules and applies them to specific cases.
For purposes of this article, however, the fundamental difference is that most civil-law countries do not recognize civil imprisonment for contempt. In their book The Civil Law Tradition: An Introduction to the Legal Systems of Western Europe and Latin America, legal scholars John Merryman and Rogelio Perez-Perdomo wrote, “Another fundamental difference between the civil law and common law traditions occurs in enforcement proceedings. Civil law jurisdictions have nothing comparable to the common law notion of civil contempt of court. . . . [I]n the common law a person can be compelled to act or to refrain from acting by the threat of imprisonment or fine for contempt of court—that is, for refusing to obey a court order addressed to him or her as a person.. . . The civil law, by way of contrast, knows no civil contempt of court and tends to operate solely in rem. This means that regardless of the type of claim one has against another person, the only way one can collect the claim is by obtaining a money judgment.”
Much of the world, including most of western Europe, functions without the common-law tradition of civil imprisonment. Thus it is not clear that eliminating the practice would harm North American jurisprudence in any manner.
Indeed, there are good reasons to believe that eliminating the imprisonment would improve justice in North America.
First and foremost, there is the human cost. The misery inflicted by imprisonment is the most obvious human cost. But critics of civil contempt argue that such imprisonment is also a violation of constitutional rights that should apply not merely to criminal matters but also to civil ones—at least, if punishment involves the deprivation of liberty. These critics refer primarily to the rights of due process that are protected by the Sixth Amendment but also to those within the Fifth and Fourteenth Amendments.
The Sixth Amendment states, “In all criminal prosecution, 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 . . . and to have the assistance of counsel.” Although civil contempt is not a criminal prosecution, the line between the two blurs with imprisonment and when the penalty is imposed as a punishment rather than a remedy.
The Fifth Amendment states, “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury . . . nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.” One of the traditional measures of whether a crime is “infamous” is the severity of punishment that may be imposed for its violation; the punishment of indefinite imprisonment would seem to make civil contempt an “infamous crime.”
The relevant section of the Fourteenth Amendment reads, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Again, imprisonment seems to require the observation of due process.
Arguably, civil contempt also impinges on First Amendment guarantees of free speech. The need for transparency and accountability within the justice system is a hotly debated issue. A prerequisite of meaningful debate is the ability to criticize the conduct and decisions of judges. As civil-contempt laws read today, however, a person who accuses a judge of misconduct can be found guilty of contempt of court even if he or she is able to prove the truth of the statement.
In theory a judge imposes contempt charges as a last resort and in a manner that respects rights. But when a judge (or any human being) is given absolute and virtually unaccountable power over another, frequent abuse is the predictable result. This is especially true when an act of contempt directly challenges a judge’s authority or constitutes an insult. In short, the judge becomes the injured party; this fact alone should disqualify him or her from rendering a decision on the alleged injury. As Justice Hugo Black stated, “When the responsibilities of lawmaker, prosecutor, judge, jury and disciplinarian are thrust upon a judge he is obviously incapable of holding the scales of justice perfectly fair and true and reflecting impartially on the guilt or innocence of the accused. He truly becomes the judge of his own cause.”
It is not merely the judge who can abuse contempt of court charges; it is also politicians. A famous example of contempt being used politically is the 1895 imprisonment of labor leader Eugene V. Debs. Debs was arrested both for conspiracy and for contempt of court following his prominent role in the Pullman Strike, during which the American Railway Union refused to handle Pullman cars or any cars attached to them, including those carrying U.S. mail. The federal government obtained an injunction against the strike, which it sent in the Army to enforce. On the charge of conspiracy, Debs had a jury trial in which famed civil rights attorney Clarence Darrow defended him; the case was dropped mid-trial. On the charge of contempt, the judge in his sole authority sentenced Debs to six months in prison.
The danger of contempt-of-court charges being abused rises when the case being decided is controversial and open to political pressure.
Can the good of society (or other specific individuals) be balanced against the cost and danger of contempt of court? In civil contempt the “good” is usually defined as “paying up”—for example, child support. It is difficult to understand what “good” is accomplished by imprisoning nonviolent parents who are behind in payments. Although data on the number of “deadbeat” prisoners is vague and often anecdotal, “deadbeat” dads almost certainly constitute the majority of civil-contempt imprisonments. Often the stated goal is to pry loose hidden money from the parent. But there is no statistical proof or studies to indicate that imprisonment motivates a parent who can pay up to do so. Moreover, society tracks wealth through bank accounts, tax returns, pay stubs, and myriad paper trails; if wealth is not discoverable and attachable, there should be a presumption that it doesn’t exist. The accused should not be guilty until proven innocent.
The possibility that many insolvent “deadbeats” are punished for their poverty has given rise to the accusation that America has reinstated debtors’ prisons. A debtors’ prison is simply a prison for those unable to pay a debt. In 1833 the United States eliminated such institutions at the federal level and most states followed suit, refusing to impose the criminal penalty of imprisonment on insolvent debtors. Currently, the typical wording about debtors’ prisons within state constitutions is, “No person shall be imprisoned for debt in any civil action, or mesne or final process, unless in cases of fraud.” It is still possible, however, to be incarcerated for nonfraudulent debts such as nonpayment of alimony or child support.
Imprisonment for civil contempt is an unnecessary and dangerous exception to the due process to which every individual is entitled both by the Constitution and by natural right. It also involves a confusing, inconstant maze of laws that collapse the traditional distinction between criminal and civil courts. As Justice Black observed, “It would be no overstatement . . . to say that the offense with the most ill-defined and elastic contours in our law is now punished by the harshest procedures known to that law.”
I believe civil-contempt imprisonment is a legal aberration that creates an artificial and arbitrary respect for courts. It also acts as a barrier for the open evaluation and criticism of judges, which is necessary to a healthy transparency within the judicial system.
Civil-contempt imprisonment is far from a benevolent or rarely flexed power. Unless the law is changed or eliminated, Beatty Chadwick will spend the rest of his life in jail without ever being arrested or heard by a jury; tens of thousands—and, arguably, hundreds of thousands—of “deadbeat” parents will be sent to the modern equivalent of debtors’ prison.
The power of a judge to imprison without recourse should be eliminated.