Constitutional Law – Right to Jury Trial in Indirect Criminal Contempts in Federal Courts

Should constitutional provisions for jury trial apply to contempts committed outside the physical presence of a federal court? The United States Supreme Court, in the recent case of Green v. United States, reviewed this long disputed question. The case involved two Communist Party leaders who had been convicted of Smith Act violations and then had “jumped bail” when they disappeared in violation of surrender orders requiring their presence in court for sentencing. After four and a half years as fugitives they surrendered in 1956 and were charged with criminal contempt of court. Following a so-called “summary” hearing (without the benefit of jury), they were found guilty and sentenced to three years in prison, to be added to their five-year sentences under the Smith Act. The majority sustained these convictions. But in a long dissent, Justice Black brought into focus several decades of criticism which has been leveled at summary procedure in “indirect” criminal contempts (contempts which are committed outside the immediate vicinity of the court). Against an imposing array of precedent sustaining summary procedure since the first Judiciary Act of 1789, Justice Black has gathered extensive authority to discredit such procedure. He has now gained support for his thesis, that such nonjury proceedings violate the Constitution, from Justice Douglas and Chief Justice Warren. Their argument appears to be that the burden of persuasion should be cast upon those who would curtail the use of trial by jury, and that the historical basis of summary proceedings has been so undermined that any resultant doubt should be resolved in favor of jury trial. The inference is drawn that if the founders of the Constitution had squarely considered the problem of indirect criminal contempts, they would surely have desired to remove them from the power of a single judge. The present majority, in contrast, reason that the weight of stare decisis creates a presumption in favor of summary procedure, and find the arguments adduced by Justice Black insufficient to overcome the precedents. Among the problems raised by the Green case are (1) whether the constitutional guarantee of jury trial should be judicially extended to cover criminal contempts committed outside the face of the court, and (2) what judicially imposed restrictions, if any, will the Court create on exercise of the contempt power.