Corporations, Criminal Contempt and the Constitution: Do Corporations Have a Sixth Amendment Right to Trial By Jury in Criminal Contempt Actions and, if so, Under What Circumstances?

Wednesday, January 1st, 1997 at 12:00 am by F. Joseph Warin and Michael D. Bopp
F. Joseph Warin and Michael D. Bopp, Corporations, Criminal Contempt and the Constitution: Do Corporations Have a Sixth Amendment Right to Trial By Jury in Criminal Contempt Actions and, if so, Under What Circumstances?, 1997 Colum. Bus. L. Rev. 1

One often-overlooked weapon in the government lawyer’s arsenal is the consent decree. Although many corporations are unfamiliar with these devices, those that have been parties to consent decrees understand their potential to avoid broader conflagrations over regulatory disputes with the federal government. Those that have violated the terms of these agreements understand that the consequences are often severe. Consent decrees have become commonplace for a broad spectrum of regulatory agencies. Through a consent decree, a federal enforcement agency can demand that a corporation promise to initiate certain programmatic practices, institute new and costly policies, cease other business approaches, and/or limit corporate undertakings to those granted government approval. In exchange, a corporation is freed from the burdens of further litigating the issues in dispute. Consent decrees are frequently employed in part because of their potency. Among the newest provisions they contain are requirements that a company submit regular reports to a government agency and permit ongoing inspection of company operations and financial records. Frequently, government enforcement authorities impose decrees that contain no expiration dates or remain in effect for a minimum of five years before sunsetting. Despite their potency, consent decrees are repeatedly underestimated by both outside and general counsels, who often dismiss decrees as hollow, meaningless tributes to the government. This rush to judgment often overlooks the potentially explosive problems that could arise if, during the decree’s life, the government initiates a criminal contempt proceeding against the corporation. Criminal contempt proceedings can cost a corporation both cash and reputation. The question of who adjudicates such proceedings is thus of natural concern to corporate officers. Nevertheless, the issue of whether an accused contemnor has the right to demand that proceedings be heard by a jury has received insufficient attention. In this article, we undertake an analysis of two leading and conflicting cases regarding the right of a corporation to a jury trial in a criminal contempt proceeding. We explore the historic and constitutional roots of the right to a jury trial, reviewing old and recent Supreme Court decisions on jury trial rights afforded to those charged with a criminal offense. We believe that the more compelling and constitutionally correct decision holds that a corporation is entitled to a jury’s verdict when confronting a “serious” criminal contempt. Thus, we urge Congress to legislate a line dividing petty and serious criminal contempt sanctions.

Author Information

Warin is a partner in the Washintgon, D.C. Office of gibson Dunn & Crutcher. Bopp is currently Counsel to the Permanent Subcommittee on Investigations of the United States Senate