INTERNATIONAL UNION, UNITED MINE WORKERS OF AMERICA, ET AL. v. BAGWELL ET AL.
No. 92-1625
Supreme Court of the United States
Argued November 29, 1993—Decided June 30, 1994
512 U.S. 821
Laurence Gold argued the cause for petitioners. With him on the briefs were Robert H. Stropp, Jr., Walter Kamiat, Andrew P. Miller, Virginia A. Seitz, and David L. Shapiro.
John G. Roberts, Jr., argued the cause for respondents. With him on the briefs were William B. Poff, Clinton S. Morse, Frank K. Friedman, and David G. Leitch.
Deputy Solicitor General Bender argued the cause for the United States urging affirmance. With him on the brief
JUSTICE BLACKMUN delivered the opinion of the Court.
We are called upon once again to consider the distinction between civil and criminal contempt. Specifically, we address whether contempt fines levied against a union for violations of a labor injunction are coercive civil fines, or are criminal fines that constitutionally could be imposed only through a jury trial. We conclude that the fines are criminal and, accordingly, we reverse the judgment of the Supreme Court of Virginia.
I
Petitioners, the International Union, United Mine Workers of America, and United Mine Workers of America, District 28 (collectively, the union), engaged in a protracted labor dispute with the Clinchfield Coal Company and Sea “B” Mining Company (collectively, the companies) over alleged unfair labor practices. In April 1989, the companies filed suit in the Circuit Court of Russell County, Virginia, to enjoin the union from conducting unlawful strike-related activities. The trial court entered an injunction which, as later amended, prohibited the union and its members from, among other things, obstructing ingress and egress to company facilities, throwing objects at and physically threatening company employees, placing tire-damaging “jackrocks” on roads used by company vehicles, and picketing with more than a specified number of people at designated sites. The court additionally ordered the union to take all steps necessary to ensure compliance with the injunction, to place su
On May 18, 1989, the trial court held a contempt hearing and found that petitioners had committed 72 violations of the injunction. After fining the union $642,000 for its disobedience,1 the court announced that it would fine the union $100,000 for any future violent breach of the injunction and $20,000 for any future nonviolent infraction, “such as exceeding picket numbers, [or] blocking entrances or exits.” Id., at 111a. The court early stated that its purpose was to “impos[e] prospective civil fines[,] the payment of which would only be required if it were shown the defendants disobeyed the Court‘s orders.” Id., at 40a.
In seven subsequent contempt hearings held between June and December 1989, the court found the union in contempt for more than 400 separate violations of the injunction, many of them violent. Based on the court‘s stated “intention that these fines are civil and coercive,” id., at 104a, each contempt hearing was conducted as a civil proceeding before the trial judge, in which the parties conducted discovery, introduced evidence, and called and cross-examined witnesses. The trial court required that contumacious acts be proved beyond a reasonable doubt, but did not afford the union a right to jury trial.
As a result of these contempt proceedings, the court levied over $64 million in fines against the union, approximately $12 million of which was ordered payable to the companies. Because the union objected to payment of any fines to the companies and in light of the law enforcement burdens posed by the strike, the court ordered that the remaining roughly $52 million in fines be paid to the Commonwealth of Virginia and Russell and Dickenson Counties, “the two counties most heavily affected by the unlawful activity.” Id., at 44a–45a.
*Bertram R. Gelfand and Jeffrey C. Dannenberg filed a brief for the Allied Educational Foundation as amicus curiae urging reversal. Michael E. Avakian filed a brief for the Center on National Labor Policy, Inc., as amicus curiae urging affirmance.
The companies withdrew as parties in light of the settlement and declined to seek further enforcement of the outstanding contempt fines. Because the Commonwealth Attorneys of Russell and Dickenson Counties also had asked to be disqualified from the case, the court appointed respondent John L. Bagwell to act as Special Commissioner to collect the unpaid contempt fines on behalf of the counties and the Commonwealth. Id., at 48a.
The Court of Appeals of Virginia reversed and ordered that the contempt fines be vacated pursuant to the settlement agreement. Assuming for the purposes of argument that the fines were civil, the court concluded that “civil contempt fines imposed during or as a part of a civil proceeding between private parties are settled when the underlying litigation is settled by the parties and the court is without discretion to refuse to vacate such fines.” Mine Workers v. Clinchfield Coal Co., 12 Va. App. 123, 133, 402 S. E. 2d 899, 905 (1991).
On consolidated appeals, the Supreme Court of Virginia reversed. The court held that whether coercive, civil contempt sanctions could be settled by private parties was a question of state law, and that Virginia public policy disfa
“When a court orders a defendant to perform an affirmative act and provides that the defendant shall be fined a fixed amount for each day he refuses to comply, the defendant has control of his destiny. The same is true with respect to the court‘s orders in the present case. A prospective fine schedule was established solely for the purpose of coercing the Union to refrain from engaging in certain conduct. Consequently, the Union controlled its own fate.” Id., at 477, 423 S. E. 2d, at 357.
This Court granted certiorari. 508 U. S. 949 (1993).
II
A
“Criminal contempt is a crime in the ordinary sense,” Bloom v. Illinois, 391 U. S. 194, 201 (1968), and “criminal penalties may not be imposed on someone who has not been afforded the protections that the Constitution requires of such criminal proceedings,” Hicks v. Feiock, 485 U. S. 624, 632 (1988). See In re Bradley, 318 U. S. 50 (1943) (double jeopardy); Cooke v. United States, 267 U. S. 517, 537 (1925) (rights to notice of charges, assistance of counsel, summary process, and to present a defense); Gompers v. Bucks Stove & Range Co., 221 U. S. 418, 444 (1911) (privilege against self-incrimination, right to proof beyond a reasonable doubt). For “serious” criminal contempts involving impris
Although the procedural contours of the two forms of contempt are well established, the distinguishing characteristics of civil versus criminal contempts are somewhat less clear.3 In the leading early case addressing this issue in the context of imprisonment, Gompers v. Bucks Stove & Range Co., 221 U. S., at 441, the Court emphasized that whether a contempt is civil or criminal turns on the “character and purpose” of the sanction involved. Thus, a contempt sanction is considered civil if it “is remedial, and for the benefit of the com
As Gompers recognized, however, the stated purposes of a contempt sanction alone cannot be determinative. Id., at 443. “[W]hen a court imposes fines and punishments on a contemnor, it is not only vindicating its legal authority to enter the initial court order, but it also is seeking to give effect to the law‘s purpose of modifying the contemnor‘s behavior to conform to the terms required in the order.” Hicks, 485 U. S., at 635. Most contempt sanctions, like most criminal punishments, to some extent punish a prior offense as well as coerce an offender‘s future obedience. The Hicks Court accordingly held that conclusions about the civil or criminal nature of a contempt sanction are properly drawn, not from “the subjective intent of a State‘s laws and its courts,” ibid., but “from an examination of the character of the relief itself,” id., at 636.
The paradigmatic coercive, civil contempt sanction, as set forth in Gompers, involves confining a contemnor indefinitely until he complies with an affirmative command such as an order “to pay alimony, or to surrender property ordered to be turned over to a receiver, or to make a conveyance.” 221 U. S., at 442; see also McCrone v. United States, 307 U. S. 61, 64 (1939) (failure to testify). Imprisonment for a fixed term similarly is coercive when the contemnor is given the option of earlier release if he complies. Shillitani v. United States, 384 U. S. 364, 370, n. 6 (1966) (upholding as civil “a determinate [2-year] sentence which includes a purge clause“). In these circumstances, the contemnor is able to purge the contempt and obtain his release by committing an affirmative act, and thus “‘carries the keys of his prison in his own pocket.‘” Gompers, 221 U. S., at 442, quoting In re Nevitt, 117 F. 448, 451 (CA8 1902).
By contrast, a fixed sentence of imprisonment is punitive and criminal if it is imposed retrospectively for a “completed act of disobedience,” Gompers, 221 U. S., at 443, such that
This dichotomy between coercive and punitive imprisonment has been extended to the fine context. A contempt fine accordingly is considered civil and remedial if it either “coerce[s] the defendant into compliance with the court‘s order, [or] ... compensate[s] the complainant for losses sustained.” United States v. Mine Workers, 330 U. S. 258, 303–304 (1947). Where a fine is not compensatory, it is civil only if the contemnor is afforded an opportunity to purge. See Penfield Co. of Cal. v. SEC, 330 U. S. 585, 590 (1947). Thus, a “flat, unconditional fine” totaling even as little as $50 announced after a finding of contempt is criminal if the contemnor has no subsequent opportunity to reduce or avoid the fine through compliance. Id., at 588.
A close analogy to coercive imprisonment is a per diem fine imposed for each day a contemnor fails to comply with an affirmative court order. Like civil imprisonment, such fines exert a constant coercive pressure, and once the jural command is obeyed, the future, indefinite, daily fines are purged. Less comfortable is the analogy between coercive imprisonment and suspended, determinate fines. In this Court‘s sole prior decision squarely addressing the judicial power to impose coercive civil contempt fines, Mine Workers, supra, it held that fixed fines also may be considered purgable and civil when imposed and suspended pending future compliance. See also Penfield, 330 U. S., at 590 (“One who is fined, unless by a day certain he [complies,] has it in his power to avoid any penalty“); but see Hicks, 485 U. S., at 639,
This Court has not revisited the issue of coercive civil contempt fines addressed in Mine Workers. Since that decision, the Court has erected substantial procedural protections in other areas of contempt law, such as criminal contempts, e. g., Bloom v. Illinois, 391 U. S. 194 (1968), and summary contempts, e. g., Taylor v. Hayes, 418 U. S. 488 (1974); Codispoti v. Pennsylvania, 418 U. S. 506, 513 (1974); Johnson v. Mississippi, 403 U. S. 212 (1971); In re Oliver, 333 U. S. 257, 275 (1948). Lower federal courts and state courts such as the trial court here nevertheless have relied on Mine Workers to authorize a relatively unlimited judicial power to impose noncompensatory civil contempt fines.
B
Underlying the somewhat elusive distinction between civil and criminal contempt fines, and the ultimate question posed
The traditional justification for the relative breadth of the contempt power has been necessity: Courts independently must be vested with “power to impose silence, respect, and decorum, in their presence, and submission to their lawful mandates, and ... to preserve themselves and their officers from the approach and insults of pollution.” Anderson v. Dunn, 6 Wheat. 204, 227 (1821). Courts thus have embraced an inherent contempt authority, see Gompers, 221 U. S., at 450; Ex parte Robinson, 19 Wall. 505, 510 (1874), as a power “necessary to the exercise of all others,” United States v. Hudson, 7 Cranch 32, 34 (1812).
But the contempt power also uniquely is “liable to abuse.” Bloom, 391 U. S., at 202, quoting Ex parte Terry, 128 U. S. 289, 313 (1888). Unlike most areas of law, where a legislature defines both the sanctionable conduct and the penalty to be imposed, civil contempt proceedings leave the offended judge solely responsible for identifying, prosecuting, adjudicating, and sanctioning the contumacious conduct. Contumacy “often strikes at the most vulnerable and human qualities of a judge‘s temperament,” Bloom, 391 U. S., at 202, and its fusion of legislative, executive, and judicial powers “summons forth ... the prospect of ‘the most tyrannical licentiousness,‘” Young v. United States ex rel. Vuitton et Fils S. A., 481 U. S. 787, 822 (1987) (SCALIA, J., concurring in judgment), quoting Anderson, 6 Wheat., at 228. Accordingly, “in [criminal] contempt cases an even more compelling argument can be made [than in ordinary criminal cases] for providing
Our jurisprudence in the contempt area has attempted to balance the competing concerns of necessity and potential arbitrariness by allowing a relatively unencumbered contempt power when its exercise is most essential, and requiring progressively greater procedural protections when other considerations come into play. The necessity justification for the contempt authority is at its pinnacle, of course, where contumacious conduct threatens a court‘s immediate ability to conduct its proceedings, such as where a witness refuses to testify, or a party disrupts the court. See Young, 481 U. S., at 820–821 (SCALIA, J., concurring in judgment) (the judicial contempt power is a “power of self-defense,” limited to sanctioning “those who interfere with the orderly conduct of [court] business or disobey orders necessary to the conduct of that business“). Thus, petty, direct contempts in the presence of the court traditionally have been subject to summary adjudication, “to maintain order in the courtroom and the integrity of the trial process in the face of an ‘actual obstruction of justice.‘” Codispoti v. Pennsylvania, 418 U. S., at 513, quoting In re McConnell, 370 U. S. 230, 236 (1962); cf. United States v. Wilson, 421 U. S. 309, 315–316 (1975); Harris v. United States, 382 U. S. 162, 164 (1965). In light of the court‘s substantial interest in rapidly coercing compliance and restoring order, and because the contempt‘s occurrence before the court reduces the need for extensive factfinding and the likelihood of an erroneous deprivation, summary proceedings have been tolerated.
Summary adjudication becomes less justifiable once a court leaves the realm of immediately sanctioned, petty direct contempts. If a court delays punishing a direct contempt until the completion of trial, for example, due process requires that the contemnor‘s rights to notice and a hearing be respected. Taylor v. Hayes, 418 U. S. 488 (1974). There “it is much more difficult to argue that action without notice
Still further procedural protections are afforded for contempts occurring out of court, where the considerations justifying expedited procedures do not pertain. Summary adjudication of indirect contempts is prohibited, e. g., Cooke v. United States, 267 U. S. 517, 534 (1925), and criminal contempt sanctions are entitled to full criminal process, e. g., Hicks, 485 U. S., at 632. Certain indirect contempts nevertheless are appropriate for imposition through civil proceedings. Contempts such as failure to comply with document discovery, for example, while occurring outside the court‘s presence, impede the court‘s ability to adjudicate the proceedings before it and thus touch upon the core justification for the contempt power. Courts traditionally have broad authority through means other than contempt—such as by striking pleadings, assessing costs, excluding evidence, and entering default judgment—to penalize a party‘s failure to comply with the rules of conduct governing the litigation process. See, e. g.,
For a discrete category of indirect contempts, however, civil procedural protections may be insufficient. Contempts involving out-of-court disobedience to complex injunctions
C
In the instant case, neither any party nor any court of the Commonwealth has suggested that the challenged fines are compensatory. At no point did the trial court attempt to calibrate the fines to damages caused by the union‘s contumacious activities or indicate that the fines were “to compensate the complainant for losses sustained.” Mine Workers, 330 U. S., at 303–304. The nonparty governments, in turn, never requested any compensation or presented any evidence regarding their injuries, never moved to intervene in the suit, and never actively defended the fines imposed. The issue before us accordingly is limited to whether these fines, despite their noncompensatory character, are coercive civil or criminal sanctions.
The parties propose two independent tests for determining whether the fines are civil or criminal. Petitioners argue that because the injunction primarily prohibited certain conduct rather than mandated affirmative acts, the sanctions are criminal. Respondents in turn urge that because the trial court established a prospective fine schedule that
Neither theory satisfactorily identifies those contempt fines that are criminal and thus must be imposed through the criminal process. Petitioners correctly note that Gompers suggests a possible dichotomy “between refusing to do an act commanded,—remedied by imprisonment until the party performs the required act; and doing an act forbidden,—punished by imprisonment for a definite term.” 221 U. S., at 443. The distinction between mandatory and prohibitory orders is easily applied in the classic contempt scenario, where contempt sanctions are used to enforce orders compelling or forbidding a single, discrete act. In such cases, orders commanding an affirmative act simply designate those actions that are capable of being coerced.
But the distinction between coercion of affirmative acts and punishment of prohibited conduct is difficult to apply when conduct that can recur is involved, or when an injunction contains both mandatory and prohibitory provisions. Moreover, in borderline cases injunctive provisions containing essentially the same command can be phrased either in mandatory or prohibitory terms. Under a literal application of petitioners’ theory, an injunction ordering the union: “Do not strike,” would appear to be prohibitory and criminal, while an injunction ordering the union: “Continue working,” would be mandatory and civil. See Tr. of Oral Arg. 8–9; Dobbs, Contempt of Court: A Survey, 56 Cornell L. Rev. 183, 239 (1971). In enforcing the present injunction, the trial court imposed fines without regard to the mandatory or prohibitory nature of the clause violated. Accordingly, even though a parsing of the injunction‘s various provisions might support the classification of contempts such as rock throwing and placing tire-damaging “jackrocks” on roads as criminal and the refusal to place supervisors at picket sites as civil, the parties have not asked us to review the order in that manner. In a case like this involving an injunction that pre
Despite respondents’ urging, we also are not persuaded that dispositive significance should be accorded to the fact that the trial court prospectively announced the sanctions it would impose. Had the trial court simply levied the fines after finding the union guilty of contempt, the resulting “determinate and unconditional” fines would be considered “solely and exclusively punitive.” Id., at 632–633 (internal quotation marks omitted); see also Penfield Co. of Cal. v. SEC, 330 U. S. 585 (1947). Respondents nevertheless contend that the trial court‘s announcement of a prospective fine schedule allowed the union to “avoid paying the fine[s] simply by performing the ... act required by the court‘s order,” Hicks, 485 U. S., at 632, and thus transformed these fines into coercive, civil ones. Respondents maintain here, as the Virginia Supreme Court held below, that the trial court could have imposed a daily civil fine to coerce the union into compliance, and that a prospective fine schedule is indistinguishable from such a sanction.
Respondents’ argument highlights the difficulties encountered in parsing coercive civil and criminal contempt fines. The fines imposed here concededly are difficult to distinguish either from determinate, punitive fines or from initially suspended, civil fines. Ultimately, however, the fact that the trial court announced the fines before the contumacy, rather than after the fact, does not in itself justify respondents’ conclusion that the fines are civil or meaningfully distinguish these penalties from the ordinary criminal law. Due process traditionally requires that criminal laws provide prior notice both of the conduct to be prohibited and of the sanction to be imposed. The trial court here simply announced the pen
Other considerations convince us that the fines challenged here are criminal. The union‘s sanctionable conduct did not occur in the court‘s presence or otherwise implicate the court‘s ability to maintain order and adjudicate the proceedings before it. Nor did the union‘s contumacy involve simple, affirmative acts, such as the paradigmatic civil contempts examined in Gompers. Instead, the Virginia trial court levied contempt fines for widespread, ongoing, out-of-court violations of a complex injunction. In so doing, the court effectively policed petitioners’ compliance with an entire code of conduct that the court itself had imposed. The union‘s contumacy lasted many months and spanned a substantial portion of the State. The fines assessed were serious, totaling over $52 million.5 Under such circumstances,
In reaching this conclusion, we recognize that this Court generally has deferred to a legislature‘s determination whether a sanction is civil or criminal, see, e. g., United States v. Ward, 448 U. S. 242, 248 (1980); Helvering v. Mitchell, 303 U. S. 391 (1938), and that “[w]hen a State‘s proceedings are involved, state law provides strong guidance about whether or not the State is exercising its authority ‘in a nonpunitive, noncriminal manner.‘” Hicks, 485 U. S., at 631, quoting Allen v. Illinois, 478 U. S. 364, 368 (1986). We do not deviate from either tradition today. Where a single judge, rather than a legislature, declares a particular sanction to be civil or criminal, such deference is less appropriate. Cf. Madsen v. Women‘s Health Center, Inc., ante, p. 753. Moreover, this Court has recognized that even for state proceedings, the label affixed to a contempt ultimately “will not be allowed to defeat the applicable protections of federal constitutional law.” Hicks v. Feiock, 485 U. S., at 631. We conclude that the serious contempt fines imposed here were criminal and constitutionally could not be imposed absent a jury trial.
III
Our decision concededly imposes some procedural burdens on courts’ ability to sanction widespread, indirect contempts of complex injunctions through noncompensatory fines. Our holding, however, leaves unaltered the longstanding authority of judges to adjudicate direct contempts summarily, and to enter broad compensatory awards for all contempts through civil proceedings. See, e. g., Sheet Metal Workers v. EEOC, 478 U. S. 421 (1986). Because the right to trial by
Ultimately, whatever slight burden our holding may impose on the judicial contempt power cannot be controlling. The Court recognized more than a quarter century ago:
“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 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 administration of the law through those institutionalized procedures which have been worked out over the centuries.” Bloom, 391 U. S., at 208.
Where, as here, “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.” Id., at 209.
The judgment of the Supreme Court of Virginia is reversed.
It is so ordered.
JUSTICE SCALIA, concurring.
I join the Court‘s opinion classifying the $52 million in contempt fines levied against petitioners as criminal. As the Court‘s opinion demonstrates, our cases have employed a variety of not easily reconcilable tests for differentiating between civil and criminal contempts. Since all of those tests
That one and the same person should be able to make the rule, to adjudicate its violation, and to assess its penalty is out of accord with our usual notions of fairness and separation of powers. See ante, at 831; Green v. United States, 356 U. S. 165, 198–199 (1958) (Black, J., dissenting); cf. Bloom v. Illinois, 391 U. S. 194, 202 (1968); Cooke v. United States, 267 U. S. 517, 539 (1925). And it is worse still for that person to conduct the adjudication without affording the protections usually given in criminal trials. Only the clearest of historical practice could establish that such a departure from the procedures that the Constitution normally requires is not a denial of due process of law. See Burnham v. Superior Court of Cal., County of Marin, 495 U. S. 604, 623–625 (1990); cf. Honda Motor Co. v. Oberg, ante, at 430–431.
At common law, contempts were divided into criminal contempts, in which a litigant was punished for an affront to the court by a fixed fine or period of incarceration; and civil contempts, in which an uncooperative litigant was incarcerated (and, in later cases, fined*) until he complied with a specific order of the court. See Gompers v. Bucks Stove & Range Co., 221 U. S. 418, 441–444 (1911). Incarceration until compliance was a distinctive sanction, and sheds light upon the nature of the decrees enforced by civil contempt. That sanction makes sense only if the order requires performance
As one would expect from this, the orders that underlay civil contempt fines or incarceration were usually mandatory rather than prohibitory, see Gompers, supra, at 442, directing litigants to perform acts that would further the litigation (for example, turning over a document), or give effect to the court‘s judgment (for example, executing a deed of conveyance). The latter category of order was particularly common, since the jurisdiction of equity courts was generally in personam rather than in rem, and the relief they decreed would almost always be a directive to an individual to perform an act with regard to property at issue. See 4 J. Pomeroy, Equity Jurisprudence § 1433, pp. 3386–3388 (4th ed. 1919). The mandatory injunctions issued upon termination of litigation usually required “a single simple act.” H. McClintock, Principles of Equity § 15, pp. 32–33 (2d ed. 1948). Indeed, there was a “historical prejudice of the court of chancery against rendering decrees which called for more than a single affirmative act.” Id., § 61, at 160. And where specific performance of contracts was sought, it was the categorical rule that no decree would issue that required ongoing supervision. See, e. g., Marble Co. v. Ripley, 10 Wall. 339, 358–359 (1870); see also McClintock, supra, § 61, at 160–161; 1 J. Story, Commentaries on Equity Jurisprudence § 778b, p. 782 (Redfield ed.; 10th ed. 1870). Compliance with these “single act” mandates could, in addition to being simple, be
Even equitable decrees that were prohibitory rather than mandatory were, in earlier times, much less sweeping than their modern counterparts. Prior to the labor injunctions of the late 1800‘s, injunctions were issued primarily in relatively narrow disputes over property. See, e. g., W. Kerr, Law and Practice of Injunctions *7 (2d Am. Ed. 1880); see also F. Frankfurter & N. Greene, The Labor Injunction 23–24, 87–88 (1930).
Contemporary courts have abandoned these earlier limitations upon the scope of their mandatory and injunctive decrees. See G. McDowell, Equity and the Constitution 4, 9 (1982). They routinely issue complex decrees which involve them in extended disputes and place them in continuing supervisory roles over parties and institutions. See, e. g., Missouri v. Jenkins, 495 U. S. 33, 56–58 (1990); Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U. S. 1, 16 (1971). Professor Chayes has described the extent of the transformation:
“[The modern decree] differs in almost every relevant characteristic from relief in the traditional model of adjudication, not the least in that it is the centerpiece.... It provides for a complex, on-going regime of performance rather than a simple, one-shot, one-way transfer. Finally, it prolongs and deepens, rather than terminates, the court‘s involvement with the dispute.” Chayes, The
Role of the Judge in Public Law Litigation, 89 Harv. L. Rev. 1281, 1298 (1976).
The consequences of this change for the point under discussion here are obvious: When an order governs many aspects of a litigant‘s activities, rather than just a discrete act, determining compliance becomes much more difficult. Credibility issues arise, for which the factfinding protections of the criminal law (including jury trial) become much more important. And when continuing prohibitions or obligations are imposed, the order cannot be complied with (and the contempt “purged“) in a single act; it continues to govern the party‘s behavior, on pain of punishment—not unlike the criminal law.
The order at issue here provides a relatively tame example of the modern, complex decree. The amended injunction prohibited, inter alia, rock throwing, the puncturing of tires, threatening, following or interfering with respondents’ employees, placing pickets in other than specified locations, and roving picketing; and it required, inter alia, that petitioners provide a list of names of designated supervisors. App. to Pet. for Cert. 113a–116a. Although it would seem quite in accord with historical practice to enforce, by conditional incarceration or per diem fines, compliance with the last provision—a discrete command, observance of which is readily ascertained—using that same means to enforce the remainder of the order would be a novelty.
*
*
*
The use of a civil process for contempt sanctions “makes no sense except as a consequence of historical practice.” Weiss v. United States, 510 U. S. 163, 198 (1994) (SCALIA, J., concurring in part and concurring in judgment). As the scope of injunctions has expanded, they have lost some of the distinctive features that made enforcement through civil process acceptable. It is not that the times, or our perceptions of fairness, have changed (that is in my view no basis
JUSTICE GINSBURG, with whom THE CHIEF JUSTICE joins, concurring in part and concurring in the judgment.
The issue in this case is whether the contempt proceedings brought against the petitioner unions are to be classified as “civil” or “criminal.” As the Court explains, if those proceedings were “criminal,” then the unions were entitled under our precedents to a jury trial, and the disputed fines, imposed in bench proceedings, could not stand. See ante, at 826–827.
I
Gompers v. Bucks Stove & Range Co., 221 U. S. 418 (1911), as the Court notes, see ante, at 827–828, is a pathmarking case in this area. The civil contempt sanction, Gompers instructs, is designed “to coerce the defendant to do the thing required by the order for the benefit of the complainant,” rather than “to vindicate the authority of the law.” 221 U. S., at 442. The sanction operates coercively because it applies continuously until the defendant performs the discrete, “affirmative act” required by the court‘s order, for example, production of a document or presentation of testimony. Ibid. The civil contemnor thus “‘carries the keys of his prison in his own pocket‘“: At any moment, “[h]e can end the sentence and discharge himself ... by doing what he had previously refused to do.” Ibid., quoting In re Nevitt, 117 F. 448, 461 (CA8 1902).
Even as it outlined these civil and criminal contempt prototypes, however, the Court in Gompers acknowledged that the categories, when filled by actual cases, are not altogether neat and tidy. Civil contempt proceedings, although primarily remedial, also “vindicat[e] ... the court‘s authority“; and criminal contempt proceedings, although designed “to vindicate the authority of the law,” may bestow “some incidental benefit” upon the complainant, because “such punishment tends to prevent a repetition of the disobedience.” Id., at 443.
II
The classifications described in Gompers have come under strong criticism, particularly from scholars. Many have observed, as did the Court in Gompers itself, that the categories, “civil” and “criminal” contempt, are unstable in theory and problematic in practice. See ante, at 827, n. 3 (citing scholarly criticism); see also Dudley, Getting Beyond the Civil/Criminal Distinction: A New Approach to the Regulation of Indirect Contempts, 79 Va. L. Rev. 1025, 1025, n. 1 (1993) (citing additional scholarly criticism).
Two considerations persuade me that the contempt proceedings in this case should be classified as “criminal” rather than “civil.” First, were we to accept the logic of Bagwell‘s argument that the fines here were civil, because “conditional” and “coercive,” no fine would elude that categorization. The fines in this case were “conditional,” Bagwell says, because they would not have been imposed if the unions had complied with the injunction. The fines would have been “conditional” in this sense, however, even if the court had not supplemented the injunction with its fines schedule; indeed, any fine is “conditional” upon compliance or noncompliance before its imposition. Cf. ante, at 837 (the unions’ ability to avoid imposition of the fines was “indistinguishable from the ability of any ordinary citizen to avoid a criminal sanction by conforming his behavior to the law“). Furthermore, while the fines were “coercive,” in the sense that one of their purposes was to encourage union compliance with the injunction, criminal contempt sanctions may also “coerce” in this same sense, for they, too, “ten[d] to prevent a repetition of the disobedience.” Gompers, 221 U. S., at 443. Bagwell‘s thesis that the fines were civil, because “condi
Second, the Virginia courts’ refusal to vacate the fines, despite the parties’ settlement and joint motion, see ante, at 825–826, is characteristic of criminal, not civil, proceedings. In explaining why the fines outlived the underlying civil dispute, the Supreme Court of Virginia stated: “Courts of the Commonwealth must have the authority to enforce their orders by employing coercive, civil sanctions if the dignity of the law and public respect for the judiciary are to be maintained.” 244 Va. at 478, 423 S. E. 2d at 358. The Virginia court‘s references to upholding public authority and maintaining “the dignity of the law” reflect the very purposes Gompers ranked on the criminal contempt side. See supra, at 844–845. Moreover, with the private complainant gone from the scene, and an official appointed by the Commonwealth to collect the fines for the Commonwealth‘s coffers, it is implausible to invoke the justification of benefiting the civil complainant. The Commonwealth here pursues the fines on its own account, not as the agent of a private party, and without tying the exactions exclusively to a claim for compensation. Cf. Hicks, 485 U. S., at 632 (“[A] fine ... [is] punitive when it is paid to the court,” but “remedial” or “civil” “when the defendant can avoid paying the fine simply by performing the affirmative act required by the court‘s order.“). If, as the trial court declared, the proceedings
*
*
*
Concluding that the fines at issue “are more closely analogous to ... criminal fines” than to civil fines, ante, at 837, I join the Court‘s judgment and all but Part II–B of its opinion.