There has been much coverage over the past month of how the Department of Justice seized phone records of Associated Press reporters in an effort to identify the source of a leak about a foiled bombing. This reminds me of the Valerie Plame affair, another high-profile government investigation into media leaks—one in which the civil-criminal distinction loomed large.
For those who don’t remember the matter, here’s a brief summary. In 2003, covert CIA operative Valerie Plame was outed in a Washington Post column shortly after Plame’s husband published an op-ed critical of the Bush administration. An investigation was launched into who leaked Plame’s identity to the media. (Lewis Libby, Vice President Dick Cheney’s chief of staff at the time, was ultimately convicted of charges associated with the leak and subsequent investigation.) Two journalists who had conducted interviews on the affair, Judith Miller of the New York Times and Matthew Cooper of Time, were ordered to testify before a grand jury. They were held in contempt of court for refusing to identify their sources. After the reporters exhausted their appeals, Cooper agreed to testify because he’d received permission from his source. Miller, however, remained resolute in her refusal to identify her informant and was sent to jail. There she remained for 85 days, until she too agreed to testify.
Miller was incarcerated purely on civil grounds. She was never a defendant in a criminal trial and was convicted of no crime. Judge Thomas Hogan of the District Court for the District of Columbia ordered her detained because she was in civil contempt. ”I have a person in front of me who is defying the law,” he said.
(Miller’s detention was brief in comparison to the civil contempt sanctions others have received. Financial adviser Martin Armstrong was jailed for seven years for contempt—after which he immediately began to serve a five-year criminal sentence. A Pennsylvania lawyer, H. Beatty Chadwick, holds the record for longest civil contempt incarceration: more than 14 years.)
The difference between civil contempt and a criminal sanction is illustrated by a comment Judge Hogan made about Miller: ”She has the key to her own cell.” Civil contempt is meant to be remedial, to coerce an individual to comply with the court’s orders. As the Supreme Court stated in Mine Workers v. Bagwell, 512 U.S. 821, 827 (1993):
civil contempt sanctions, or those penalties designed to compel future compliance with a court order, are considered to be 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.
As the Court also noted, however, “Most contempt sanctions, like most criminal punishments, to some extent punish a prior offense as well as coerce an offender’s future obedience.” The picture becomes even more complex in light of how an individual may also be criminally punished for an act of contempt. Criminal contempt is retrospective, and the defendant in such a case enjoys the full panoply of criminal procedural safeguards. The distinction is often not so clear in practice. The same exact conduct can give rise to either civil contempt or criminal contempt. And both civil and criminal contempt can result in fines, which might have a compensatory element in both cases. Bagwell showed how blurry the distinction could be when it found that fines imposed for civil contempt were actually criminal. The Court mentioned “the difficulties encountered in parsing coercive civil and criminal contempt fines” and “the somewhat elusive distinction between civil and criminal contempt fines,” and Justice Scalia, in his concurrence, noted that the Court has employed “a variety of not easily reconcilable tests for differentiating between civil and criminal contempts.” (We’ll set aside the additional distinction between direct contempt—which takes place in the presence of the judge and serves to undermine the court’s authority—and indirect contempt—which occurs outside the courtroom and typically pertains to the failure to comply with a court order.)
I’ll note that at least one commentator might take issue with my decision to include contempt in this blog as an example of the problematic distinction between civil law and criminal law. Professor Earl Dudley has asked “whether the civil/criminal distinction in contempt differs in any significant way from the civil/criminal distinctions articulated throughout th[e] larger body of law,” and concluded that “[c]omparison of the civil/criminal distinctions made within and outside of the contempt context reveals only a nominal similarity.” Earl C. Dudley, Jr., “Getting Beyond the Civil/Criminal Distinction: A New Approach to the Regulation of Indirect Contempts,” 79 Virginia Law Review 1025, 1043-44 (1993). He raised some interesting points about the very different origins of the two dichotomies, and about the differing points in the process when the civil-criminal determination must be made (in the contempt context, it must occur right at the start). Still, I believe contempt is a telling example of how someone’s liberty might be abridged when the courts apply or defer to a label—and I’m not sure it’s a coincidence that the labels happen to be “civil” versus “criminal,” or “punitive” versus “remedial,” just as they are in other contexts. And it seems fully in keeping with the spirit of this blog to consider how a nominally civil proceeding can and does result in sanctions that are far worse than those stemming from a criminal proceeding, despite weaker safeguards.