Opinion — Bloom v. Illinois (No. 52)

ee

SUPREME COURT OF THE UNITED STATES

- No. 52.—Ocroser TerM, 1967.

* S. Edward Bloom, Petitioner,| On Writ of Certiorari to

_ v. ak the Supreme Court. of

State of Illinois. Tllinois.

+ \

[May 20, 1968.]

Mr. Justice WHITE delivered the opinion of the Court.

Petitioner was convicted in-an Illinois. state court of

criminal contempt and sentenced to imprisonment for

24 months for willfully petitioning to admit to probate

a will falsely prepared and executed after the death of.

the putative testator. Petitioner made a timely demand

for jury trial which was refused. Since in Duncan v.

Louisiana; ante, .p. —, the Constitution was held to

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guarantee the right to jury trial in serious criminal cases

in state courts, we must’ now decide whether it also-

guarantees the right to’ jury trial for a criminal contempt _

punished by a two-year prison term.

a

Whether federal and state: courts may try criminal

contempt cases without a jury has been a recurring

-question in this Court. Article IH, § 2, of the Constitu-

tion provides that “[t]he Trial of all Crimes, except in

cases of Impeachment, shall be by Jury... - ”” The

Sixth Amendment states that “ijn all criminal prosecu-

tions, the accused ‘shall enjoy the right to.a speedy and ©

public trial, by: an impartial jury. ...” The Fifth-

and Fourteenth Amendments forbid both the Federal

Government and the States from depriving any person

of “life, liberty or property, without due process of law.”

Notwithstanding: these -provisions,- until United States

v. Barnett, 376 -U. S. 681, rehearing denied, 377 U. S.

“9 > BLOOM ». ILLINOIS.

973 ( 1964), the Court consistently upheld the constitu- |

tional) power of the state and federal courts to punish

any criminal contempt without a jury trial. Eilenbecker

vy. District Court of Plymouth County, 134 U. S. 31,

36-39 (1890); I. C. C. v. Brimson, 154 U. S. 447, 488-489

(1894); In re Debs, 158 U. 8. 564, 594-596 (1895) ;

Green v. United States, 346 U. S. 165, 183-187 (1958}.”

These cases constryed the Due Process Clause and the

otherwise inclusive language of Article III and the Sixth

Amendment as permitting summary trials in contempt —

cases because at common law contempt was tried without

a jury and because the power of courts to punish for

contempt without the intervention of any other agency

was considered essential to the proper and: effective . °

functioning of*the courts and to the administration of

justice. .

United States v. Barnett, supra, signaled a possible —

_ change’ of view. The Court of Appeals for the Fifth

Circuit certified to this Court the question. whether there

was a right to jury trial in an impending contempt

proceeding. Following prior cases, a five-man majority

_ held that there was:no constitutional right to jury trial

in all contempt cases. Criminal contempt, intrinsically

1 Many more cases have supported the rule that courts may punish

criminal: contempt summarily, or accepted that rule without question. .

See cases collected in Green v. United States, 356 U. 8. 165, 191,n.2 -

(1958) (concurring opinion) ; United States v. Barnett, 376 U. S.

“681, 694, n. 12 (1964). The list of the Justices of this Court who

have apparently subscribed to this view is long. See Green v.

United States, supra, at 192. ats

The argument that the power to punish contempt was an inherent

power of the courts not subject to regulation by Congress was

rejected-in Michaelson v. United States ex rel. Chicago, St. P., M. &

O. R. Co., 266 U. S. 42, 65-67 (1924), which upheld. the maximum

sentence and jury trial provisions of the Clayton Act. Cf. Lar-

remore, Constitutional Regulation of Contempt of Court, 13 Harv.

‘L. Rev. 80 (1900).

Gompers v. United States, 233 U. S. 604, 610-611 (1914) 5" |

BLOOM »..ILLINOIS. - ~ 3

and aside from the particular: penalty imposed, was not

deemed a serious offense requiring the protection of the

_ constitutional guarantees of the right to jury trial.

‘However, the Court put aside as not raised in the certi-

fication or firmly settled by prior cases, the issue whether |

a severe punishment, would itself trigger the fight to

jury. trial and indicated, without explication, that some —

members of: the Court were of the view that thé

Constitution limited the punishment which could be

imposed where the contempt was tried without a jury.

76 U.S., at 694-695 and n. 12.

‘@ Two years later; in Cheff v. Schnackenberg, 384 U. S.

J

373 (1966), which involved a prison term of six months

for contempt of a federal court, the Court rejected the

claim that. the-Constitution guaranteed a right to jury

trial in all criminal contempt cases. Contempt:did not .

“of itself” warrant treatment as other than a petty

offense; the°six-month’s punishment imposed permitted

dealing with the case as a prosecution for “a petty of-

-fense, which under our decisions does not require a jury

trial.” 384 U. S. 373, 379-380 (1966). See Callan v.

Wilson, 127 U.S. 540 (1888); Schick v. United States, -

195 U. S. 65 (1904); District of Columbia v. Clawans,

300 U. S. 617 (1937). It was not necessary in Cheff

to. consider whether the constitutional guarantees of the

right to jury trial applied to a prosecution for a serious

‘ contempt. Now, however, because of our holding in

Duncan v. Louisiana; ante, p. —, that the right to

jury: trial extends to the States, and because of Bloom’s

demand for a jury in.this case, we must once again con-

front the broad rule that all criminal contempts can be

constitutionally tried without a jury.’ Barnett presaged

& re-examination of this doctrine at.some later time;

that time has now arrived. _

In proceeding with this task, we are acutely aware of

the responsibility we assume in entertaining challenges

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8 BLOOM v. ILLINOIS.

to a: 1 constitutional principle which - is. ‘firmly enteitlind

and which has behind it weighty and ancient authority.

Our deliberations have convinced us, however, that seri-

ous ¢ontempts are-so nearly like other serious crimes

that they are subject to the jury trial provisions of. the

Constitution, now binding on’ the States, and that. the

traditional rule is constitutionally infirm insofar as it

permits-other than. petty contempts to be tried without

-Ronoring: 4. demand for a jury: trial. -We accept the

judgment. of Barnett’ and Cheff that. criminal contempt

is a petty offense unless the. punishment makes it a

serious one; but in our view, dispensing with the jury

in the trial of contempts subjec‘- 1 to severe punishment

represents an unacceptable construction of the Consti-

tution, “. . . an unconstitutional assumption of powers

2: by the B castes which no lapse of time or respectable

‘array of opinion should make ‘us hesitate té correct.”

Black. .& White Taxicab & Transfer Co. v. Brown &

Yellow "Paxicab & Transfer Co., 276 U. S. 518, 533 (1928)

(Holmes, SJpdissenting). The rule of our prior cases

has strong, though sharply challenged, historical sup-

_ Port; * but neither this circumstance nor the eonsidera-

2 Blackstone’ 8, description of the corimon-law practice in pntenah

‘eases appears in 4 Commentaries on the Laws-.of England 286-288:

‘ “The process of attachment for these and the like contempts must

necessarily be as ancient as the laws themselves; for laws without

a competent authority to secure their administration from disobedi-

ence and contempt would be vain and nugatory. A power, there-

fore, in the supreme courts of justice, to suppress such contempts

by an immediate attachment of the offender results from the first

“principles of judicial establishments, and must be an inseparable

attendant upon every superior — ,

“If the odntaghigt ‘he camesiinel in the face of the court, ee

offender may be instantly apprehended and imprisoned, at the discre-

tion of the judges, without any further proof or examination. But

in matters: that arise at a distance, and of which the court ‘can-.

- not have so perfect a knowledge, unless by” the confession of the party

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BLOOM »v. FLLINOIS. coe

tions of necessity and efficiency normally offered in

defense of the established rule, justify dehying a jury.

trial in serious criminal contempt cases. The Constitu- —

or the testimony of others, if the judges upon affidavit see sufficient

ground to suspect that a contempt has been committed, they either —

make a rule on the suspected party to show cause why an attach-

ment should not issue against him, or, in very flagrant instances

of- contempt, the attachment issues in the first imstance; as it

also does’ if no sufficient cause be shown to discharge; and thereupon

the: court confirms and makes absolute ‘the original rule.” And,

see id., at 280. A. similar account is contained in 2 Hawkins, A

Treatise of the Pleas of the Crown 4, 141 (2d ed. 1724).

‘Of course, “Blackstone’s Commentaries are accepted as the _most

satisfactory exposition of the common law of England. . . . undoubt-

edly the framers of the Constitution were familiar with it.” Schick

v. United States, 195 U. S. 65, 69 (1904). ~ a:

Blackstone, however, was acutely aware that this practice was a

significant departure from ordinary principles: “It cannot have

escaped the attention of the reader that this method of making the

defendant answer upon oath to a criminal charge is not agreeable to-

the genius of the common law in any other instance...” 4 Black-

stone, supra, at 287. . 7 , ;

_ The unalloyed doctrine that by “immemorial usage” all criminal

contempts could be tried summarily seems to derive from Mr. Justice,

(later Chief Justice) Wilmot’s undelivered opinion in The King v.

Almon (1765), first brought to public light by the posthumous publi-

cation of his papers, Wilmot, Notes 243 (1802), reprinted in 97 Eng.

Rep. 94. Wilmot’s opinion appears to have been the source’ of

Blackstone’s view, but. did not become an authoritative part of the

_ law of-England until Rex v. Clement, 4 Barn. & Ald. 218, 233, 106

Eng: Rep. 918, 923 (K. B. 1821). Cf. Roach v. Garvan, 2 Atkyns

469, 26 Eng. Rep. 683 (Ch. 1742). See 8 Howell, State Trials 14,

22-23, 49-59 (1816), and. the subsequent civil action, Burdett v.

Abbot, 14 East 1, 138, 104 Eng. Rep. 501, 554 (K. B. 1811);

4 Taunt. 401, 128 Eng. Rep. 384 (Ex. 1812); 5 Dow 165, 202, 3 Eng.

Rep. 1289, 1302 (H. L. 1817). The historical authenticity of this

view has been vigorously challenged, initially by Solly-Flood, The,

' Story of Prince Henry of Monmouth and Chief-Justice Gascoign,

3 Transactions of the Royal Historical Society (N. S.) 47, 61-64, 147-

150 (1886). ° This led to the massive reappraisal of the contempt

power undertaken by Sir John Fox: The King v. Almon, 24 LQ. Rev.

184, 266 (1908) ; The Summary Process to Punish Contempt, 25 L: Q.

®

6 "_ BLOOM v. ILLINOIS.

tion guarantees the right to jury trial in state court _

_ prosecutions for contempt just as it does for ogher .

crimes.

Rev. 238, 354 (1909); Eccentricities of the Law of Contempt of

Court, 36 L. Q. Rev. 394 (1920) ; The Nature of Contempt of Court,

37 L. Q. Rev. 191 (1921); The Practice in Contempt of Court Cases,

38 L. Q. Rev. 185 (1922) ; The Writ of Attachment, 40 L. Q. Rev.

43 (1924); J. Fox, The.History of Contempt of Court (1927). On

contempt generally, see R. Goldfarb, The Contempt Power (1963).

Learned writers have interpreted Fox’s work as showing that until.

the late 17th or early 18th centuries, apart. from the extraordinary

proceedings of the Star Chamber, English courts neither had, nor

claimed, power to punish contempts, whether in or out of court, by -

summary process. Frankfurter & Landis, Power of Congress over

Procedure in Criminal Contempts in: “Inferior” Federal Courts—A

Study in Separation of Powers, 37 Harv. L. Rev. 1010, 1042-1052

- (1924). Cf. Oswald’s Contempt of Court 3, n. (g) (Robertson ed.

1910). Fox’s own appraisal of the evidence, however, seems to have

_ been that prior to the 18th century there probably was no valid basis

for summary punishment of a libel on the court by a stranger to the

proceedings, but-that summary punishment for contempts outside

the court consisting in resistance to a lawful process or order of the

court, or contumacious behavior by an officer of the court, was prob-

ably permissible. J. Fox, The History of Contempt of Court 4, 49-50,

98-100, 108-110, 208-209 (1927) ;. Fox, The Summary Process to

Punish. Contempt, 25 L. Q. Rev. 238, 244-246 (1909). Although

jury trials had been provided in some instances. of contempt in the

face of the court, Fox does not seem to have questioned that such

contempts could be punished summarily. J. Fox, The History of?

Contempt of Court 50 (1927). racer

We do not find the history of criminal éontempt sufficiently simple -

or unambiguqus to rest rejection of our prior deqsions. entirely on

historical. grounds, particularly since the Court has been aware of

Solly-Flood’s and Fox’s work for many years. See Gompers v.

United States, 233 U. S. 604, 611 (1914); Michaelson v. United

States ex rel. Chicago, St. P., M. & O. R. Co., 266 U. S. 42, 66-67:

(1924); Green v. United States, 356 U. S. 165, 185, n. 18 (1958).

In any event, the ultimate question is not whether the traditional

doctrine is historically correct but whether the rule that criminal

contempts are never entitled to a jury trial is a necessary or an —

acceptable construction of the Constitution. Cf. Thompson v. Utah,

170 U. S. 343, 350 (1898).

BLOOM v, ILLINOIS. _ ee.

Al.

Criminal contempt is a crime in the ordinary sense;

it is a violation of the law, a public wrong which is

punishable by fine or: imprisonment or both. In the.

_- words of Mr. Justice Holmes: |

“These contempts are infractions: of the law,

visited with punishment as such. If such acts are

not criminal, we are in error as to the most funda-.

mental characteristic of crimes as that word has

been understood in English speech.” Gompers Vv.

United States, 233 U. S. 604, 610 (1914).

Criminally -contemptuous conduct may violate other

_ provisions of the criminal law; but even when this is not

the case convictions for criminal contempt are indistin-

guishable from ordinary criminal convictions; for their

impact on the individual defendant is the same. Indeed,

_ the role of criminal contempt and that of many ordinary

criminal laws seem identical—protection of the institu-

~ tions of: our. government and enforcement of their

mandates. 7 |

Given that criminal contempt is a crime in every

fundamental respect, the question is whether it is a crime

to which the jury trial provisions of the Constitution

3See also New Orleans v. The Steamship Co., 20 Wall. 387, 392

(1874) (“{cjJontempt of court is a specific criminal offense”) ; O’Neal_

v. United States, 190 U. S. 36, 38 (1903) (an adjudication for con-

tempt is “in effect a judgment in a criminal case”) ; Bessette v. W. B.

Conkey Co.; 194 U. 8, 324, 336 (1904) (that criminal contempt pro-

ceedings are “erjminal in their nature has been constantly affirmed”) ;

_ Michaelson v. United States ex rel. Chicago, St. P.M. & O. R. Co.,

266 U.S. 42, 66 (1924) (“[t]}he fundamental characteristics of both

[crimes and criminal contempts| are the same”); Green v. United

States, 356 U.S. 165, 201 (1958) (dissenting opinion) (“criminal

contempt is manifestly a crime by every relevant test of reason or

history”). The Court also held in Bessette, supra, at '335, that

criminal contempt “cannot be considered an infamous crime.”

oe BLOOM ». ILLINOIS.

apply. -We hold that it is, primarily because in terms

of those considerations which make the right to jury

trial fundamental in criminal cases, there is no substan-

tial difference between serious contempts and ‘other

serious crimes. Indeed, in contempt cases an even more

‘compelling argument can be made for providing a right.

‘to jury trial as a protection against the arbitrary exercise

of official power. Contemptuous conduct, though a

public wrong, often strikes at the most vulnerable and

human qualities of a judge’s temperament. Even when

the contempt is not a direct insult to the court or the

" . judge, it frequently represents a rejection of judicial

authority, or an interference with the judicial pone or

’ with, the duties of officers of the court. :

- The court has long recognized the potential for abuse

in exercising the summary power to imprison for con-

tempt—it is-an “arbitrary” power which is “liable to

abuse.” Ha parte Terry, 128 .U. S. 289, 313 (1888).

“TI]ts exercise ‘is a delicate one and care is needed to

avoid arbitrary or oppressive conclusions.” Cooke v.

United States, 267 U.S. 517, 539 (1925).*

These apprehensions about the unbridled power to

punish summarily for contempt are reflected in the

march of events in both Congress and the courts since

our Constitution was adopted. ‘The federal courts were

established by the Judiciary Act of 1789; $17 of the

Act provided that those courts “shall have power to .

_punish by fine or imprisonment, at the discretion of seid

courts, all cqntempts of authority in any cause or hearing

before the same ....” 1 Stat. 83. See Anderson v.

+“That contempt power over. counsel, summary or otherwise, is

capable of abuse is certain. Men>who make their way to the bench -

sometimes exhibit vanity, irascibility, narrowness, arrogance, and

_ other weaknesses to which human flesh is heir.” Sacher v. United

States, 343 U. S. 1, 12 (1952). See also Ex parte Hudgings, 249

U. S. 378 (1919); Nye. v. United States, 313 U. 3. 33 (1941);

Cammer v. United States, 350 U.S. 399 (1956).

BLOOM v. ILLINOIS. = 9

Dunn, 6 Wheat. 204, 227-228 (1821). This open-ended

authority to deal with contempt, limited only as to

mode of punishment, proved unsatisfactory to. Congress.

Abuses under the 1789 Act culminated in the unsuccess- |

- ful impeachment proceedings against James Peck, a

federal district judge who had imprisoned and disbarred -

one Lawless for publishing a criticism of one of Peck’s

_ opinions in a case which was on appeal. The result was

. drastic curtailment of the contempt power in the Act of

1831, 4 Stat. 487. Ex parte Robinson, 19 Wall. 505,

510-511 (1874); In-re Savin, 131 U. 8. 267, 275-276

(1889). . That Act limited the contempt power to mis-

behavior in the presence of the court or so near thereto

as to obstruct justice; misbehavior of court officers in‘

_ their official transactions; and disobedience. or resistance

: to the lawful writ, process, order, or decree of the court.°

This major revision of the contempt power in the federal

sphere, which “narrowly confined” and “substantially

curtailed” the authority to punish contempt summarily,

Nye v. United States, 313 U. S. 33, 47-48. (1941), has

continued to the present day as the basis for the general

5 Section 1: of the Act of 1831 stated:

~ “That the power of the several courts of the United States to issue

attachments and inflict summary punishments for contempts of court,

shall not be construed to extend to any cases except the misbehavior

of any person or persons in the presence of the said courts, or so

near thereto as to obstruct the administration of justice, the mis-—

behavior of any of the officers-of the said courts in their official

. transactions, and the disobedience or resistance by any officer of the

said courts, party, juror, witness, or any other person or persons, to

any lawful writ, process, order, rule, decree, or command of the said

courts.” ‘ Fox concluded that the 1831 Act was in accord with the

-. general common law of England. See Fox, The History of Contempt —

of Court 208 (1927). Section 2 of the Act*provided for prosecution

- . by the regular criminal procedures of: those guilty of obstruction of .

justice. See generally, Nelles & King, Contempt by Publication. in

the United States, 28 Col."L. Rev. 401, 525 (1928).

Te TO eens

10.-——_*- BLOOM ». ILLINOIS.

power to punish criminal contempt.’ 62° Stat. 701, 18

U.S.C. § 401. 1 oe

The courts also proved sensitive to the potential for *

abuse which resides in the summary power to punish

contempt. Before,the 19th century was out, a distinc-

- tion had been carefully drawn between contempts occur-

ring within the view of the court, for which a hearing and

formal presentation of evidence were dispensed with, and

all other contempts where more normal adversary pro-

cedures were required. Ex parte Terry, 128. U. S. 289

_ (1888); Ex parte Savin, 131 U.S. 267 (1889). ‘Later,

6 At a later date, when passing the Clayton Act, Congress focused

its attention on conduct which was not only criminally contemptuous

‘but which also constituted other crimes under federal or state law.

Contempts of this nature, “unless committed in the presence of the

court or so near thereto as to obstruct justice, or unless they involved —

- disobedience, to a Court writ, process, order, or decree in a case

brought by the United States, were required to be tried to a jury,

and the possible punishment was limited to six months, fine of $1,000,

or both. 38 Stat. 738, 18 U. S. C. § 402. Cireumscription of the

contempt power was carried further in the Norris-LaGuardia Act,

which extended the right to’ jury trial to contempt cases arising

out of injunctions issued in labor disputes. 47 Stat. 72, 18 is ae

§ 3692, The Civil Rights Act of 1957, 71 Stat. 638, 42 U. S. C.

. § 1995, provides a right to a de novo trial by jury to all criminal |

contemnors convicted in cases arising under the Act who are fined in

excess of $300 or sentenced to imprisonment for more than 45 days,

exception being made. for contempts committed in the presence of the

court or so near thereto as to obstruct justice, and misbehavior, .

misconduct, or disobedience of any officer of the court. The Civil

Rights Act of 1964, 78 Stat. 268, 42 U. S. C. § 2000h, provides a

right to jury trial in all proceedings for criminal contempt arising

under the Act, and limits’punishment to a fine of $1,000 or imprison-

ment for six months. Again exception is made for contempts

committed in the presence of the court, or so near thereto as to

obstruct justice, and for the misbehavior, misconduct, or.disobedience ,

of court officers. Proof of criminal mens reas is specifically required. —

See Goldfarb & Kurzman, Civil Rights V. Civil Liberties: The Jury

Trial Issue, 12 U. C. L. A. L. Rev. 486, 496-506 (1965).

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BLOOM ». ILLINOIS... 1

~ the Court could say “Gt is certain that in: proceedings for |

criminal contempt the defendant is presumed to be inno-

cent, he must be proved to be guilty beyond a reasonable

doubt, and cannot be compelled to testify against him-

self.” Gompers v. Bucks Stove & Range Co., 221 U.S.

418, 444 (1911). See Michaelson v. United States, 266

U. S.- 42, 66 (1924). Chief Justice Taft speaking for a

unanimous Court in Cooke v. United States, 267 U. S.

517, 537 (1925), said: : given

_-” “Due process of law, therefore, in the prosecution

of contempt, except of that committed in open

court, requires that the accused should be advised

of the charges and have a reasonable opportunity to

meet them by way of defense or explanation. We.

think this includes the assistance of counsel, if.re-_

_ quested, and the right to call witnesses to give

testimony, relevant either to the issue of complete

exculpation or in extenuation of the offense and in’.

mitigation of the- penalty to be imposed.”

Cf. Blackmer v. United States, 284 U. S. 421, 440 (1932).

. . It has also been recognized that the defendant in criminal

contempt procéedings is entitled to a public trial before

~ an unbiased judge, In re Oliver, 333 U. S. 257 (1948) ;

Offutt v. United States, 348 U. S. 11 (1954); see ‘Ungar

v. Sarafite, 376 U.S. 575 (1964) ; but cf. Levine v. United

States, 362 U. S. 610, (1960).’ In the federal system

many of the procedural protections available to criminal

contemnors-are set forth. in Fed.. Rules Crim. Proc. 42.

Judicial concern has not been limited to procedure.

In Toledo. Newspaper Co:’v. United States, 247 U. S.

Tt has-also been held that’ a defendant in criminal contempt

proceedings is eligible for executive pardon, Ex parte Grossman, 267

U.S. 87 (1925), and entitled to the protection of the statute of limi-

tations, Gompers v. United States, 233 U. S. 604, 611-613 (1914);

Pendergast v. United States, 317 U. S. 412 (1943). -

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elias

ae BLOOM v. ILLINOIS. a

402 (1918), the Court endorsed a broad construction of

the. language of the Act of. 1831 permitting summary

trial of contempts “so near [to the court] as to obstruct

the administration of justice.” It required only that

‘the conduct have a “tendency to prevent and obstruct

the discharge of judicjal duty .. . ” Td., at 419/ See

Craig v. Hecht, 263 U. S, 255, 277 (1923). This view

proved aberrational and was overruled in Nye v. United

States, 313 U. S. 33, 47-52 ( 1941), which narrowly

‘limited the conduct proscribed by the 1831 Act to “mis-

behavior in the vicinity. of the court disrupting to quiet

and order or Actually interrupting the court in the con-

duct of its business.” Id., at 52. Cf. Toledo Newspaper

Co. v. United States, supra, at 422 (Holines, J., dissent-

_ ing). The congressional purpose to fence in the power.

of the federal courts to punish contempt ark

further implemented*in Cammer v. United States*gp9°

-U. S. 399, 407-408 (1956). A lawyer, the Court ‘held, :

«,4s not the kind of ‘officer’ who can be summarily tried . -

for contempt under 18 U. S. G. § 401 (2).” In another .

development, the First Amendment was invoked to ban

punishment: for a broad category of arguably contemp-

‘tuous out-of-court conduct. Bridges v. California, 314

. U. §. 252 (1941); Pennekamp v. Florida, 328 U.S. 331

- (1946); Craig v. Harney, 331 U.S. 367 (947). Finally,

‘over the years, in the federal system there has been a.

recurring necessity to set aside punishments for. criminal

‘contempt as either unaythorized by statute or too harsh.

E. g., Ex parte Robiiison, 19 Wall. 505 (1874); United -

States v. United Mine Workers, 330 U. S. 258 (1947);

Yates v.- United States, 355 U. S. 66 (1957).° ~.

8 Limitations on the maximum penalties for criminal contempt are.

common in the States. According to Note, Constitutional Law: The

Supreme Cotrt Censtructs a Limited Right to Trial by Jury for

Federal Criminal Contemnors, 1967 Duke L. J. 632, 654, n. 84, in 26

States the maximum penalty that can be imposed in the absence of a -

on a

BLOOM v. ILLINOIS. ss 18»

This course of events demonstrates the unwisdom of .

vesting the judiciary with completely untrammeled

power to punish contempt, and makes clear the need for

effective safeguards against that power's abuse. Prose-

cutions for contempt play a significant role in the proper

functioning of our judicial system;, but despite the

important values which the contempt power protects,

courts and legislatures have gradually eroded the power

of judges to try contempts of their own authority. “In

modern times, procedures in criminal contempt cases —

have come to mirror those used in ordinary criminal

cases. Our experience teaches that convictions for

criminal contempt, not infrequently resulting in ex- |

tremely serious penalties, see United States v. Barnett,

supra, at 751, are indistinguishable from those obtained ~

under ordinary criminal laws.. If the right to jury trial

, |

- jury trial is six months or less, in three States a jury trial must be.

provided upon demand of the defendant, in three other States the

maximum penalty cannot exceed one year (this group of States in-

cludes Illinois, however, which, as the present case demonstrates, has

no such limitation), in 15 States there is either no limitation,upon

the maximum penalty which may be imposed, or else that maximum

exceeds one year, and finally, in three States, while there are statutes

relating to particular kinds of contempt, there are no general con-

tempt provisions. Independent examination suggests that the avail-

‘able materials concerning the law- of contempt in some States are

such that precise computation is difficult. It is clear, however, that

punishment for contempt is limited to one year or less in ‘over half

the States.

Most other Western countries seem to be highly resthetive of the .

latitude given judges to try their oWn contempts without a jury.

See Jann, Contempt of Court in Western Germany, 8 Am. U. E. Rev. .

34 (1059); Bigelow, Contempt of Court, 1 Crim. L. Q. 475 (1959) ;

Pekelis, Legal Techniques and Political Ideologies: A Comparative

Study, 41 Mich. L. Rev. 665 (1943). By contrast, there was ng

right of appeal against a conviction for criminal contempt in England

until the Administration of -Justice-Act, 1960, 8 and 9 Eliz. 2, c. 65.

See Harnon, Civil and Criminal Contempts of Court, 25’ Mod. L.

-Rev. 179 (1962).

ae

14 BLOOM v. ILLINOIS.

is a fundamental matter in other criminal cases, which

‘we think it is, it must also be extended to criminal

contempt cases.

IIL

Nor are there a reasons for a contrary result.

As we read the earlier s in this Court upholding the

power to try contemp ; without a jury, it was’ not

doubted that the summary power was subject to abuse

or that the right to jury trial would be an effective

check. Rather, it seems ‘to have been thought that

summary power was necessary to preserve the dignity,

independence, and effectiveness of tlie judicial process—

“To submit the question of disobedience to another tri-

- bunal, be it a jury or another court, would operate to

deprive the proceeding of half. its efficiency.” In re

Debs, 158 U. S. 565, 595 ( 1895). It is.at this point that

- we do not, agree: in our judgment, when serious punish-

ment for contempt is contemplated, rejecting a demand

for jury trial cannot be squared with the Constitution

or justified by considerations of efficiency or the desir-

ability of vindicating the authority of the court.

‘. We cannot.say that the need to further respect for

' judges and courts is entitled to more consideration than -

_ the interest of the individual not to be subjected to

serious criminal punishment without the benefit of all the

procedural protections worked out carefully over the —

_years and deemed fundamental to our system of justice.

Genuine respect, which alone can lend true dignity to our .

judicial establishment, will be engendered, not by the

fear of unlimited authority, but by the firm administra-.

tion of the law through those institutionalized procedures

which have been worked out over the centuries.

We place little credence in the notion that the inde-

pendence of the judiciary hangs on the power to try

contempts summarily and are not persuaded that the

additional time and expense possibly involved in submit-

ting serious contempts to juries will seriously handicap

BLOOM v. ILLINOIS. 15

the effective functioning of the courts. We do not deny

that serious punishment must sometimes be imposed for.

‘contempt, but we reject the contention that such punish-

ment must be imposed without the right to jury trial.

The goals of dispatch, economy, and efficiency are impor-

tant, but they are amply served by preserving the power

to commit for. civil contempt and by “recognizing that

many contempts are not serious crimes but petty offenses .

not within the jury trial provisions of the Constitution.

When a serious contempt is at issue, considerations of

efficiency must give way to the more fundamental

interest of ensuring the even-handed exercise of ‘judicial

power. In isolated instances recalcitrant or irrational

juries may acquit rather than apply the law to the case

before them. Our system has wrestled with this problem

for hundreds of years, however, and important safeguards

have been devised to minimize miscarriages of justice

through the malfunctioning of the jury system. Perhaps

to’some extent we. sacrifice efficiency, expedition, and low

cost, but the choice in favor of jury trial has been made,

and retainéd, in the Constitution. We see no sound

reason“in logic or policy not to apply it in the area of.

eae contempt. ;

Somie special mention of contempts in the presence of.

the judge is warranted. Rule 42 (a) of the Federal Rules

of Criminal Procedure provides that “[a] criminal con-

- tempt may be punished summarily if the judge certifies

that he saw or heard the conduet constituting the con-

tempt and that it was committed in the actual. presence

of the court.” This rule reflects the common-law rule

’ which is widely if not uniformly followed in the States.

Although Rule 42 (a) is based in part on the premise that

it is not necessary specially to present the facts of a

contempt. which occurred in the very presence of the

_ Judge, it also rests on the need to maintain order and a -

deliberative atmosphere in the courtroom. The power of .

a judge to quell disturbance cannot attend upon‘ the.

16 BLOOM v. ILLINOIS.

impaneling of a jury. There is, therefore, a strong temp-

‘tation to make exception to the rule we establish. today

for disorders in the courtroom. We are convinced, how-

ever, that no such special rule isneeded. It.is old law

that the guarantees of jury trial found in Article III and

the Sixth Amendment do not apply to petty. offenses.

_ Only today we have reaffirmed ‘that position. Duncan,

v. Louisiana, ante, at —. By deciding to. treat criminal |

contempt like other crimes insofar as the right to jury

trial is concerned, we similarly place it under the rule

"" that petty crimes need not be tried to a jury.

IV.

Petitioner Bloom was held in contempt, of colirt for °

filing a spurious will for probate. At his trial it was

established that the putative testator died on July 6,

1964, and that after.-that date Pauline Owens, a practical

nurse for thé decedent, engaged Bloom to draw and.

execute a will in the decedent’s name. The will was °

-- dated -June 21, 1964. Bloom knew the will was false

when he presented it for admission in the Probate Divi-

sion of the Circuit Court of Cook County. The State’s

Attorney of that county: filed a complaint charging Bloom

with contempt of court. At trial petitioner’s: timely

_-motion for a jury trial was denied. Petitioner, was found —

guilty of criminal contempt and sentenced to imprison-

ment for 24 months. On direct appeal to the Illinois

Supreme Court, his conviction was affirmed. That court

| ‘held that neither. state law nor the Federal Constitution

provided a right to jury trial in criminal contempt pro-

ceedings. 35 Ill. 2d 255, 220 N. E. 2d 475 (1966). We.

granted certiorari, 386. U. S. 1003 (1967).

Petitioner Bloom contends that the conduct for which —

he was convicted of criminal contempt constituted the

_ erime of forgery under 38 III. Rev. Stat. § 17-3." Defend- .

ants tried under that statute enjoy a: ‘right to jury trial

BLOOM v. ILLINOIS. i

and face a possible sentence. of one to 14 years, ‘a fine not

- to exceed. $1,000, or both. Petitioner was not tried under

this statute, but rather was convicted of criminal con-

tempt. Under Illinois law no maximum punishment is

provided for convictions for criminal contempt.. People

‘vy. Stollar, 31 Ill. 2d 154, 201 N. E. 2d 97 (1964). In

Duncan we have said that we need not settle “the exact

location of the line between petty offenses and serious

crimes” but that “a.crime: punishable by two years in

prison is... . a serious crime and not a petty offense.”

Ante, at —-. Bloom was sentenced to imprisonment for

two years. Our analysis of Barnett, supra, and Cheff v.

Schnackenberg, supra, makes it clear that criminal ‘con-

tempt is not a crime of the sort that requires the right

to jury trial regardless of the penalty.involved. Under

-- the rule in Cheff, when. the legislature has not expressed

a judgment as to the seriousness of an offense by fixing

.& maximum penalty which may be imposed, we are to

look to the penalty actually imposed as the best -evi-

dence of the seriousness of the offense. See, ante, p. —,

n. 35. Under this rule it is clear that Bloom was entitled °

to the right to trial by jury, and it wa’ constitutional

error to deny him that right. Accordingly, we reverse

and remand for ‘proceedings not inconsistent with this

opinion.

| Reversed and remanded.

SUPREME. COURT OF THE UNITED STATES

No. 52.—OcTOoBER Term, 1967.

S. Edward Bloom, Petitioner, On Writ of Certiorari to

v. ket - the Supreme Court of

State of Illinois. | Illinois.

[May 20, 1968.]

Mr. Justice ‘Hartan, whom Mr. Justice Srewant

joins, dissenting. |

TI dissent. for the reasons euprened in my dissenting

opinion in Duncan v. Louisiana, ante, p. —, and in my

concurring and dissenting opinion in Cheff v. ‘Schnacken-

berg, 384 U. S. 373, 380. See also United States v.

Barnett, 376 U. S. 681; Green v. United States, 356 U. S.

165.

This case completes a remarkable circle. In linia

ante; the Court imposed on, the States a rule of pro-

cedure that was neither shown: to be fundamental to

procedural fairness nor held'to be part of the’ originally

understood content. of the Fourteenth Amendment. The

sole justification was that the rule was found in the Bill

of Rights. The Court now, without stating any addi-

tional reasons, imposes on the States a related rule that,

as recently as Chef v. Schnackenberg, supra, the Court

declined to find in the Bill of Rights. That the words

of Mr: Justice Holmes,” inveighing against a century of

“unconstitutional assumption of [state] powers by the

courts of the United States” in derogation of the central

_ premise of our Constitution, should be invoked to sup-

port the Court’s action here can only be put down to the

vagaries of the times.

“4B. & W. Tosi Co. v. B. & Y. Tari Co., 276 U. 8. 518, 532, at

533 (dissenting opinion, quoted ante, p. 4).