Crazy Uncle Joe Arpaio was officially charged Tuesday with criminal contempt of court when a federal judge affixed her signature to a Rule 42 order to show cause. Maricopa County Sheriff Joe Arpaio officially charged with criminal contempt:
Maricopa County Sheriff Joe Arpaio was officially charged Tuesday with criminal contempt of court when a federal judge affixed her signature, a formality that throws the lawman’s political and personal future into a level of crisis never before seen in his 23 years in office.
Criminal-contempt charges have loomed over Arpaio since 2015. A criminal trial was the worst-case scenario for the sheriff after he admitted to violating a federal judge’s order to stop enforcing civil immigration laws.
A trial is set for Dec. 6 in U.S. District Court in Phoenix. If he’s convicted, the 84-year-old sheriff could face up to six months in jail.
While symbolic, the order does little to illuminate the case’s potential outcomes.
It remains unclear whether the charge against Arpaio is a misdemeanor or felony. If convicted of a felony, under state law, the sheriff would have to resign his office, which could cost the sheriff his job even if he is re-elected.
Bolton’s filing walks through five years of the sheriff’s resistance to her colleague, U.S. District Court Judge G. Murray Snow, who has presided over the long racial-profiling case out of which the criminal-contempt charge grew.
The document alleges Arpaio was more interested in maintaining his famed tough-on-immigration persona than following Snow’s orders.
His deputies continued to arrest and deliver undocumented immigrants to federal authorities when there were no state charges against them, long after Snow banned the practice.
“Judge Snow concluded that Sheriff Arpaio did so based on the notoriety he received for, and the campaign donations he received because of, his immigration enforcement activity,” Bolton wrote.
Bolton bolsters the allegation with testimony from last year’s hearings. The practice, she notes, continued even after Arpaio’s attorneys advised him to stop. The sheriff at various points told his attorneys they would revise their protocol or, falsely, that the Sheriff’s Office was already in compliance.
“After exhausting ‘all of its other methods to obtain compliance,’ Judge Snow referred Sheriff Arpaio’s intentional and continuing non-compliance … to another Judge to determine whether he should be held in criminal contempt,” Bolton concludes.
On Tuesday, neither prosecutors nor defense attorneys could say for certain whether the contempt charge was a felony or a misdemeanor.
Bolton has previously implied the latter, agreeing that a maximum penalty of six months in jail would be appropriate for Arpaio if he were convicted.
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Peter Carr, a spokesman for the Department of Justice, said Judge Bolton would be the one to make that call. Although Justice Department attorneys are prosecuting the case, the official charge is leveled by the court.
This uncertainty regarding civil versus criminal contempt has long been inherent in contempt of court proceedings. For a legal article explaining federal contempt of court by Joel Androphy and Keith Byers, see Federal Contempt of Court (excerpt):
The distinction between criminal and civil contempt has been one of the most confusing and problematic areas of contempt jurisprudence. Some of this confusion results from the fact that criminal contempt can occur in either a criminal or civil proceeding, just as civil contempt can occur in either a criminal or civil proceeding. Moreover, single acts of contempt can result in both criminal and civil contempt sanctions in some cases. Despite the difficulty in categorizing acts of contempt, the ability to distinguish between civil and criminal contempt is of vital importance. This importance originates from the fact that different rules, procedures, and constitutional safeguards (which will be discussed throughout this article) apply to the two types of contempt.
The U.S. Supreme Court struggled with the distinction between civil and criminal contempt as early as 1911. Although Gompers v. Buck’s Stove & Range Co. continues to be the most influential case, the court has revisited this complex issue on several occasions. In Gompers, the court first acknowledged the difficulty in distinguishing between criminal and civil contempt.
In an attempt to draw a distinction between the two types of contempt, the court focused on the “character and purpose” of the sanction imposed. The court reasoned that a contempt sanction should be considered to be civil in nature it if is remedial and intended to benefit the complainant. The court, for instance, explained that a contempt sanction is civil if it is “intended to be remedial by coercing the defendant to do what he had refused to do.” Additionally,
[i]f the relief provided is a fine, it is remedial when it is paid to the complainant, and punitive when it is paid to the court, though a fine that would be payable to the court is also remedial when the defendant can avoid paying the fine simply by performing the affirmative act required by the court’s order.
In contrast with the purpose of a civil contempt sanction, the purpose of a criminal contempt sanction (e.g., an unconditional and determinate period of imprisonment or a fixed monetary fine) is to punish the contemnor and vindicate the authority of the court. Consequently, criminal contempt is punitive in character.
In Gompers, the court also articulated a mandatory-prohibitory test to assist in determining whether a civil or criminal contempt sanction is appropriate. Basically, the court opined that civil contempt is appropriate for coercing future compliance with a previously violated mandatory court order (e.g., one that said “Do X”), while criminal contempt is appropriate for punishing a past violation of a prohibitory court order (e.g., one that said “Don’t do X”).
In United States v. United Mine Workers, the Supreme Court applied the Gompers analysis to contempt fines. This opinion, however, only served to muddle the already confusing distinction between civil and criminal contempt. By equating the coercive use of fines with the coercive use of imprisonment, new confusion arose as the court approved of the use of fines as a method for coercing compliance with court orders. As a direct result, “the court made it possible for courts to set out prospective fine schemes and then levy fixed fines in subsequent civil, rather than criminal contempt proceedings.” Thereafter, lower courts basically saw this as an opportunity to punish future acts of contempt with prospectively affixed sanctions – but without the procedural requirements of a criminal contempt proceeding.
Despite the original distinctions between criminal and civil contempt offered by the Supreme Court, distinguishing between civil and criminal contempt still poses a considerable challenge. In part, this results from the fact that in many respects all contempt proceedings contain both coercive and punitive elements. For example, even a fixed sentence of confinement imposed as punishment will also coerce subsequent compliance with present, as well as future court orders.
Because of the fine line between coercion and punishment, there is always the possibility that a civil/coercive contempt sanction might evolve into a criminal sanction. This possibility exists in cases where a civil contemnor is subjected to continued “coercive” confinement despite the fact that there is “no realistic possibility or no substantial likelihood that additional confinement will coerce.” [For example, if Joe Arpaio is no longer in office after election day.] In such cases, the sanction should lose its civil status essentially because a coercive purpose no longer justifies continued confinement. This scenario is especially problematic because the incarcerated and uncoercible contemnor finds him or herself the victim of criminal confinement without having received the benefits of the required criminal procedural Protections. As a result, the presiding judge is required to make a “conscientious effort” to ensure that the contemnor is not subjected to further civil confinement in the absence of an ongoing and realistic possibility of coercing compliance.
Besides recognizing problems with the coercive/punitive distinction, the Supreme Court has also acknowledged problems with the mandatory-prohibitory test. This second test does nothing more than focus on the semantics of the violated court order: for example, “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.” Subsequently, this sort of distinction should not be determinative of the degree of due process and constitutional Protections that an accused contemnor receives in “borderline cases [where] injunctive provisions containing essentially the same command can be phrased either in mandatory or prohibitory terms.” The distinction between mandatory and prohibitory order violations is best and most easily “applied in the classic contempt scenario, where contempt sanctions are used to enforce orders compelling or forbidding a single, discrete act,” as opposed to a complex contempt scenario involving multiple court orders.
In recognition of the ever-growing confusion surrounding the characteristics of criminal and civil contempt, the Supreme Court further refined the analysis used to determine whether a contemnor is entitled to the heightened Protections of a criminal contempt proceeding or the less stringent Protections of a civil contempt proceeding. The revised analysis adheres to the following premise: if the contemnor is given the opportunity to purge him or herself of the contempt by complying with the violated court order, then only the Protections of a civil proceeding are required; or, in other words, if the contemnor “carries the keys to the jail in his own pocket,” then a civil contempt proceeding is appropriate.” Even before the above-mentioned refinement, the court already had ruled that “[w]here a fine is not compensatory, it is civil only if the contemnor is afforded an opportunity to purge.”
Most recently in 1994, in International Union, United Mine Workers v. Bagwell, the Supreme Court once again considered the distinction between civil and criminal contempt. The court’s review of this case potentially was linked to the growing tendency of the lower federal courts to liberally use civil contempt proceedings to impose determinative fines. Not too surprising in light of this trend, Bagwell involved the review of a trial court’s decision to levy a total of $64 million in contempt fines against the United Mineworkers for 400 separate violations of an injunction prohibiting unlawful strike activity. During its review, the court focused on the lower court’s decision to classify the fines as civil, which thereby seemingly enabled the court to avoid the jury trial requirement that otherwise would have been required if the fines had been labeled as criminal contempt sanctions. Disapproving of the lower court’s decision, the court ruled that “out-of-court violations of complex injunctions” require criminal procedural Protections. Even more significantly, the court “decline[d] to conclude that the mere fact that the sanctions were announced in advance rendered them coercive and civil as a matter of constitutional law.”
Despite the basic guidelines that the court has provided, judges and attorneys still face a difficult task distinguishing between criminal and civil contempt.
As the Republic reporting makes clear, Judge Bolton will be the one to make that call at the conclusion of the trial that begins on December 6.