Gung Ho for Contempt

In the latest issue of Engaged, Judge Michael Warren offers an argument the the contempt power should be used more often by judges: Contempt of Court & Broken Windows: Why Ignoring Contempt of Court Severely Undermines Justice, the Rule of Law, and Republican Selfgovernment.

"The power of contempt is the means by which the court enforces its fundamental authority.
. . .
[T]he failure to pursue blatant perjury and clear disobedience of court orders rapidly leads to a wholesale disrespect for the law."

I'm with the judge for most of that. The contempt power is the judge's strongest enforcement weapon in most criminal cases because they are relatively minor. However, in criminal matters it's not the only one because any defendant who screams obscenities at the judge knows he will get a harsher sentence. The 6 month contempt power pales in comparison when a defendant is facing three charges which could net him a total of 60 years (in Virginia that would be three grand larcenies: theft of items worth $200). However, that's really just a minor quibble because the increased sentence would be a de facto contempt multiplier.

However, I must disagree with Judge Warren in his desire to use the contempt power to punish perjury. Perjury is universally an accepted specific crime (see Va. Code sec. 18.2-434, MCL 750.423, 18 USC 1623 etc.). As such, it is beyond the court's perview to accuse and punish someone of this activity. Certainly, it is within the power of the judge to report believed perjury to the prosecutor and even to suggest prosecution. However, it is not the judge's role to make the decision to prosecute these matters.

The power of contempt is the means by which the court enforces its fundamental authority. Courts have no armies to command and no taxes to raise and spend. In a very fundamental sense, the judicial power is the contempt power; and the failure to exercise it becomes a failure of the judiciary.

I agree with this statement as far as it goes. A court clearly needs the power to ensure that its procedures are followed and that its orders are obeyed. However, as demonstrated above, I suspect that Judge Warren's view of the "fundamental authority" of the court differs from mine and I think his next section indicates this.

C. Contempt of Court is Critical to Maintaining our
Republican Form of Self-Government

Another essential, but often overlooked, vital characteristic of the contempt power is the maintaining the republican form of self-government. In America, the people are sovereign. The people have delegated their authority to the three branches of government.
. . .
Hence, the failure to obey the duly executed orders and judgments of the courts, or acts or omissions that impair the orderly administration of justice in those courts, is a direct affront to the republican government.
. . .
[quoting a Colorado case] "It was said in argument by counsel for respondents 'that by the common law every judge was regarded as the direct representative of the sovereign, and upon this fiction the power to punish for contempt was based.' With us the people have been substituted for the crown. The courts are created by the people, and are dependent upon the popular will for a continuation of the powers granted. They are the people’s courts, and contemptuous conduct toward the judges in the discharge of their official duties tending to defeat the administration of justice, is more than an offense against the person of the judge; it is an offense against the people’s court, the dignity of which the judge should protect, however willing he may be to forego the private injury."

Put another way, the failure to invoke the power of contempt when appropriate not only undermines the administration of justice and the rule of law, it strikes at the heart of our republican form of government.

This seems to assume that a US judge's contempt power is of the same nature as a judge under the British common law. It is not. A monarch gifts these powers to his judges as a means to enforce his will and expand his power. They are freely given and the monarch would expect them to be used liberally as a means of implementing his reign. As members of a democratic republic, we begrudge this power to the members of the bench. It is a necessity given out of a recognition of the realities of the world. As such, we don't expect it to be given wide application. We expect it to be used narrowly and not at all when our legislators have clearly vested a power of prosecution in the executive branch - as they have in perjury charges.

Anyway, check it out. The article is thought provoking even if you don't agree with it in its entirety.