United States v. Dixon Page 16

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Media for United States v. Dixon

Audio Transcription for Oral Argument - December 02, 1992 in United States v. Dixon

James W. Klein:

That's just bad prosecutorial policy, and that's what happened in both of these cases, and that's why these cases I think are something of an oddball.

These were not cases of the court's insisting on vindicating its authority right now.

The record in Foster in particular shows the judge saying, can you reach a settlement, have you talked to the U.S. Attorney's Office about it?

I don't really care about any of that.

So we didn't have the court's viewing the vindication of their authority as requiring immediate action.

I think that when we pull back from this case for a moment the Government is saying, it's easy, just treat contempt as different, but I think the Government is asking the Court to do something quite extraordinary.

John Paul Stevens:

Mr. Bryson was correct.

He missed it by just one section.

It's 3148 of the Bail Reform Act.

It does provide for criminal contempt as one of the sanctions for violating a bail order, which it seems to me gives some added focus to the discussion that we've been having.

James W. Klein:

Just... that's true.

There's always been, at least in the past couple of Federal statutes, a provision for contempt, and there is no tradition... I'm fairly certain of this, Justice Kennedy... no tradition at all of using contempt to violate for new crimes committed while on release.

In fact--

William H. Rehnquist:

Thank you, Mr. Klein.

James W. Klein:

--Thank you, Mr. Chief Justice.

William H. Rehnquist:

Mr. Bryson, you have 4 minutes remaining.

William C. Bryson:

Very briefly, first, with respect to the Young case, I think it's important to remember that Young was a supervisory power case that applied only to the Federal courts.

This problem that we're talking about, particularly the Foster case, which I think is the more widespread problem that this legal issue touches on, is essentially a State law question.

It is no accident that this arises from the local courts in the District of Columbia.

This has been a problem that has come up in the local State courts much more frequently than it has in the Federal courts, and in those courts something like 41 different States have adopted a contempt provision as a means of enforcing civil protection orders.

It is a very important part of the procedures, and it isn't something that can easily be rolled into the criminal prosecution process.

The individuals who are subject to these civil protection orders have already shown themselves not to be some people that are moved by the existence of general criminal liability for assault, and so forth, because when a civil protection order is obtained, it's generally on a showing that there has been an assault, or at least very clear threats of assault already.

They also are not moved, even after the civil protection order, by the fact that there is a civil protection order, because they have violated it, so they need to have some very specific and strong remedy.

That's what contempt is for, and that's why it is so important to not water down the effect of contempt in this setting, and I would add one other point.

David H. Souter:

Mr. Bryson, may I just interrupt you for a minute?

What do you say to the suggestion that criminal contempt can be charged, preventive detention can be imposed in the Foster situation, and prosecution can take place subsequently in the normal course, so that as a practical matter you get the offender away from the victim?

William C. Bryson:

Well, contempt can clearly be charged, but in many States preventive detention is not available for offenses such as simple assault, and in fact I don't believe--

David H. Souter:

If that is so, isn't that the problem of the State, not the problem of the double jeopardy clause?

William C. Bryson:

--Well, I'm not sure the solution to the current problem is to get around the problem by creating the capacity for preventive detention for minor offenses and then using it for long periods of time, such as 6 months.

I think that's really using preventive detention to serve a purpose to get around the problem, that you really are holding him in contempt but you're calling it preventive detention and thereby avoiding the double jeopardy clause.