Academic journal article Harvard Law Review

Permitting Private Initiation of Criminal Contempt Proceedings

Academic journal article Harvard Law Review

Permitting Private Initiation of Criminal Contempt Proceedings

Article excerpt

In some states, those who violate court orders can be punished by privately initiated proceedings for criminal contempt. (1) Other jurisdictions forbid such an arrangement. (2) The Supreme Court has instructed the federal courts to appoint only "disinterested" private prosecutors when exercising their inherent authority to punish contempt.(3) Of course, the question of who can bring a criminal contempt proceeding affects a wide range of interests--a range just as broad as that protected by court orders in the first place. Any victor in a civil lawsuit may someday undertake a contempt proceeding to preserve that victory: so with the multinational corporation seeking to protect its patents, so with the parent attempting to enforce her custody arrangement. The doctrine of contempt assumes that civil proceedings will be sufficient to enforce a court order; criminal contempt is distinguished from its civil counterpart in that it punishes noncompliance rather than merely encouraging compliance. In practice, however, civil contempt can adequately discourage only ongoing violations of a court order. To jail a contemnor for what he did last Tuesday, criminal contempt is required. (4) And so it matters a great deal whether the beneficiary of a civil protective order can initiate criminal contempt proceedings, or whether she is limited to civil contempt: episodes of physical abuse are always in the past when the court learns of them.

Last year, the Supreme Court discussed the question of who could initiate proceedings for criminal contempt, but ultimately dismissed the case on which that discussion had been based. Robertson v. United States ex rel. Watson (5) began when John Robertson beat his ex-girlfriend, Wykenna Watson. (6) Robertson was charged with aggravated assault, and Watson procured a civil protective order. (7) While the order was in place and the criminal charges were pending, Robertson attacked Watson for a second time. (8) Then, when Robertson negotiated his plea of guilty arising out of the first assault, the U.S. Attorney (who enforces both local and federal criminal laws in the District of Columbia) agreed not to pursue any charges concerning the second incident. (9) Watson filed a motion to hold Robertson in contempt for violating the protective order with the second attack. (10) After Robertson was found guilty of three counts of contempt and sentenced to one and one-half years in prison, (11) he sought to have his contempt convictions vacated on the grounds that they had been brought either in violation of his plea agreement with the U.S. Attorney or else in derogation of the government's allegedly exclusive power to undertake a prosecution. (12) However, Robertson waived the argument that Watson's role in his prosecution violated his due process rights. Instead he argued merely that her prosecution was either under the authority of the United States, in which case it was barred by his plea agreement, or else under Watson's own private authority, in which case it was constitutionally barred by the requirement that all criminal prosecutions be brought under public authority. (13) But although the question of whether a private interested party could constitutionally wield that public authority was not before the Court, the Justices discussed it all the same--and four dissented from the dismissal of the case in an opinion suggesting that they were open to the idea of a due process right to disinterested public prosecution. (14)

This Note will argue that such a right, if it in fact exists, is not violated when private parties initiate criminal contempt proceedings, so long as there is sufficient public oversight of the prosecution. Any apparent tension between the requirements of due process and one's ability to have a court order enforced through criminal contempt is, upon close examination and given the actual procedures employed in the various states, illusory. The Note first discusses the jurisprudence of contempt, including state and federal limitations on the private enforcement of court orders, in Part I. …

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