A Post Filled with Contempt

Over the past few months I’ve been getting some really interesting questions about contempt. Disclaimer: The real experts on our faculty when it comes to contempt are John Saxon, Michael Crowell, and Cheryl Howell—I’m just dabbling here. But there’s a connection to my field (sentencing), in that many of the questions I’m getting relate to the permissible punishment for criminal contempt.

Is criminal contempt a crime? At different times our courts have said different things. At various times they’ve called it “sui generis,” “quasi-criminal,” “criminal in nature,” and the more all-purpose “punitive.” But occasionally they put it to a finer point, writing (albeit in dicta) that “criminal contempts are crimes,” 313 N.C. 432 (1985), and “[c]riminal contempt is a crime,” 187 N.C. App. 55 (2007). Nowhere in Chapter 5A (the contempt chapter) does the General Assembly use the term “conviction” as applied to contempt, and we know from State v. Reaves, 142 N.C. App. 629 (2001), that contempt adjudications do not count as convictions for prior record level purposes in the sentencing of a later crime. There is no right to counsel at direct criminal contempt proceedings, and likewise no right to a jury trial for contempt, a “petty offense” (unless, perhaps, the sentence exceeds six months, Bloom v. Illinois, 391 U.S. 194 (1968)).

What difference does it make? Well, first of all I had to justify to Jeff that this post belonged on the North Carolina Criminal Law blog at all. Second, what criminal contempt is arguably has a bearing on how it can be punished.

Under G.S. 5A-12, contempt can be punished by censure, imprisonment of up to 30 days (or more in the case of certain refusals to testify and failures to comply with nontestimonial identification orders), by a fine not to exceed $500, or any combination of the three. Though Chapter 5A doesn’t expressly say so, contempt sentences can be suspended with probation, Bishop v. Bishop, 90 N.C. App. 499 (1988), and—in what is apparently a common practice around the state—multiple contempt sentences can be run consecutively. Our courts have never expressly approved the latter practice, but the United States Supreme Court recently reminded us in Oregon v. Ice that “firmly rooted in common law is the principle that the selection of either concurrent or consecutive sentences rests within the discretion of the sentencing judge.” There have been North Carolina cases involving boxcar contempt sentences, but they were resolved on other grounds, eliminating the need to address the stacking. State v. James, 159 N.C. App. 229 (2003) (unpublished) (three consecutive 30-day terms ordered in response to a volley of obscenities lobbed at the judge); Disciplinary Hearing Commission v. Frazier, 354 N.C. 555 (2001) (sixteen (!) consecutive 30-day sentences for unauthorized practice of law). There are related questions about whether separate counts are really based on independent acts (can each profanity net you 30 days in jail? each missed child support payment? each day you didn’t pay?), but I’ll set those aside for now.

The argument that contempt sentences should not be run consecutive would go something like this. Under G.S. 14-1, felonies are defined a particular way and any other crime that doesn’t fall within that definition is a misdemeanor. Contempt does not fall within the felony definition, so, the argument goes, it’s a misdemeanor. Under G.S. 14-3(a)(2), unclassified misdemeanors with a maximum punishment of 30 days or less are Class 3 misdemeanors. Under G.S. 15A-1340.22, consecutive sentences may not be imposed if all convictions are for Class 3 misdemeanors. Thus, consecutive sentences should not be imposed for contempt. The argument is compelling as a matter of proportionality—to the extent that contempt is similar to a Class 3 misdemeanor, it makes sense that it ought to be treated in roughly the same way. It’s difficult, however, to graft Structured Sentencing’s rules onto contempt, which has its own, self-contained punishment provisions in G.S. 5A-12. The greater weight of cases seems to support the sui generis approach, with contempt as neither felony nor misdemeanor. A similar issue arises when fines are ordered for contempt—if the contemnor doesn’t pay, do the rules for Fines in Article 84 of Chapter 15A kick in? It’s not a perfect fit.

As always, I welcome your thoughts on what goes on in practice.