Contempt

The discretion permitted to judges in determining what is contempt and how to punish it has led some legal scholars to argue that the contempt power gives too much authority to judges. Earl C. Dudley, University of Virginia law professor, wrote that in the contempt power, "the roles of victim, prosecutor and judge are dangerously commingled."

Much of the criticism focuses on the lack of restraint or DUE PROCESS in determining punishments for contempt. In criminal contempt, the contempt charges become a separate matter, but they may be heard by the judge who made them. In addition, the same judge may commence punishment immediately, and the punishment may be in effect until the contempt case is settled. Critics have argued that judges—who are the principal offended party—may be too harsh. For instance, in 1994, the U.S. Supreme Court overturned a decision by a Virginia judge who had fined the United Mine Workers of America $52 million in connection with violence that occurred during a 1989 strike. The High Court stated that the fines were excessive and improperly imposed because the union had never had a chance to defend itself in a trial before the fines were imposed.

Similarly, individuals who have refused to provide courts with information have been held in jail—sometimes for years—under contempt charges. In Maryland, a woman involved in a custody battle with her ex-husband refused to reveal the whereabouts of her child. Elizabeth Morgan spent 25 months in jail before her ex-husband dropped the custody case and it was revealed that the child was staying with Morgan's parents in New Zealand. Journalist Myron Farber, of the New York Times, spent more than three years in jail for refusing to turn over notes that prosecutors sought for a murder trial.

Judges and scholars have defended the practices of indefinite jail time because the contemnor "carries the keys to his prison in his own pocket" and can be released by complying with the court (In re Nevitt, 117 F. 448 [8th Cir. 1902]).

Civil contempt proceedings end when the suit from which they arose is resolved. Criminal contempt continues as a separate matter. Settlements may involve jail time, fines, or other retribution. For instance, when the Cable News Network (CNN) was found guilty of contempt of court for airing audiotapes related to the trial of Manuel Noriega, the deposed president of Panama, the network was given the choice of airing a retraction and an apology for using the tapes or paying a large fine. The network made the apology.