Prosecuting Criminal Contempt: How Far is Too Far?

There may be several reasons for the interest in this David-versus-Goliath story, but in this article, we will focus on the US district court’s decision to hold Donziger in civil contempt and ultimately to have him prosecuted for criminal contempt, a step many observers have viewed as an extraordinary use of the criminal contempt power.

The court’s contempt power is broad and amorphous and, therefore, subject to abuse. This article examines the framework for contempt, reviews the history of the Donziger case, and considers some of the concerns with criminal contempt proceedings that are highlighted by the Donziger prosecution.

What Is Contempt?

The contempt power dates back to English law of the 12th century, when it was used to punish disobedience to the king. Kaley Ree Jaslow, Life in Jail for Misbehavior: Criminal Contempt and the Consequence of Improper Classification, 71 Fla L. Rev. 599, 602 (2019). In the United States, the contempt power has always been a part of the justice system. In 1788, Eleazer Oswald, an anti-Federalist printer, was imprisoned for one month for contempt after he published an article calling into question the impartiality of the judges who heard a case brought against him for libel. Respublica v. Oswald, 1 U.S. 319 (1788). The next year, in The Judiciary Act of 1789, the first U.S. Congress granted courts the “power to impose and administer all necessary oaths or affirmations, and to punish by fine or imprisonment, at the discretion of said courts, all contempts of authority in any cause or hearing before the same.” Judiciary Act of 1789, ch. 20, sec. 17, 1 Stat. 73, 83 (1789); see also Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 815 (1987). In 1841, Congress granted the Supreme Court the power to establish criminal contempt procedures, leading to the enactment of Rule 42 of the Federal Rules of Criminal Procedure. Jaslow, supra, at 602–03.

The Supreme Court has found the contempt power (both civil and criminal) to be an inherent power of the judiciary: “The Courts of the United States, when called into existence and vested with jurisdiction over any subject, at once became possessed with the power.” Michaelson v. United States ex rel Chicago, St. P., M., & O.R. Co., 266 U.S. 42, 65–66 (1924). According to the Supreme Court, the courts’ ability to punish disobedience of their orders is necessary to the judiciary’s ability to exercise independent authority. See Young, 481 U.S. at 796.

Congress codified the contempt power in 18 U.S.C. § 401 in 1948. The statute is broad, leaving significant discretion to the judiciary. Under section 401:

A court of the United States shall have power to punish by fine or imprisonment, or both, at its discretion, such contempt of its authority, and none other, as—

(1) Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice;

(2) Misbehavior of any of its officers in their official transactions;

(3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command.

Id.

The first two prongs of the statute allow courts to punish “misbehavior” in the presence of or adjacent to the court—often referred to as “direct contempt”—as well as misbehavior by officers of the court. “Misbehavior” is a broad term, and courts have noted that it can cover a range of conduct, including insult and disrespect. United States v. Marshall, 371 F.3d 42, 48 (2d Cir. 2004) (“Although the line between insult and obstruction is difficult to discern, there is a point at which mere words are so offensive and so unnecessary that their very utterance creates a delay which is an obstruction of justice.”); see also United States v. Seale, 461 F.2d 345, 370 (7th Cir. 1972) (stating that “at some point disrespect and insult become actual and material obstruction” and that “the very delay of the proceedings occasioned by a disrespectful outburst or other misbehavior may be sufficient to constitute a material obstruction”).

Donziger was prosecuted under the third prong of the statute, which relates to failure to abide by a lawful order of the court. “To secure a conviction for criminal contempt of a court order, the Government must prove (1) the issuance of the order, (2) the defendant’s disobedience or disregard of the order, and (3) the defendant’s knowledge and willfulness in disobeying the order.” United States v. Vezina, 165 F.3d 176, 178 (2d Cir. 1999). “Criminal contempt generally ‘requires a specific intent to consciously disregard an order of the court.’” United States v. Cutler, 58 F.3d 825, 837 (2d Cir. 1995) (quoting United States v. Berardelli, 565 F.2d 24, 30 (2d Cir. 1977)).

In addition to the mens rea, the primary difference between criminal and civil contempt relates to the “character and purpose” of the sanction involved. “[A] contempt sanction is considered civil if it ‘is remedial, and for the benefit of the complainant. But if it is for criminal contempt the sentence is punitive, to vindicate the authority of the court.’” Int’l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 827–28 (1994) (quoting Gompers v. Buck’s Stove & Range Co., 221 U.S. 418, 440 (1911)). In other words, civil contempt sanctions are designed to compel future compliance with a court order and are considered coercive; accordingly, they can be avoided by curing the contempt. Criminal contempt sanctions, on the other hand, vindicate the authority of the court and have a punitive aspect to them. Even where someone cures the contempt, the court may impose criminal sanctions.

Section 401 does not include a maximum fine or maximum sentence of incarceration. It simply grants the judiciary broad authority to punish “by fine or imprisonment” “contempt of its authority.” Though the contempt sanction is largely in the hands of the judiciary, that doesn’t mean it is entirely unbounded. Defendants prosecuted for criminal contempt must be afforded constitutionally required protections, such as notice of charges, assistance of counsel, privilege against self-incrimination, and right to proof beyond a reasonable doubt. Bagwell, 512 U.S. at 826. “For ‘serious’ criminal contempts involving imprisonment of more than six months, these protections include the right to jury trial.” Id. at 826–27.

The procedures for prosecuting a criminal contempt are outlined in Federal Rules of Criminal Procedure 42, which requires adequate notice of the essential facts, as well as the right to a jury trial in any case in which federal law so provides (meaning “serious” cases with possible imprisonment of more than six months). In addition, Rule 42 prohibits a judge from overseeing a contempt charge that involved disrespect or criticism of that judge. Finally, Rule 42 includes a special carve-out that allows the court to “summarily punish a person who commits criminal contempt in its presence if the judge saw or heard the contemptuous conduct and so certifies.”

How Did Donziger End Up in Contempt of Court?

The case against Donziger stems from what the criminal contempt court later described as “over twenty-five years of fierce litigation . . . regarding oil pollution in the Orienté region of the Ecuadorian Amazon.” Findings of Facts & Conclusion of Law at 5, United States v. Donziger, No. 19-CR-561; No. 19-CV-691 (S.D.N.Y. July 26, 2021), ECF No. 346. Donziger served as one of the lead plaintiffs’ lawyers in a lawsuit on behalf of a group of Ecuadorian people, which alleged that Texaco, later bought by Chevron, contaminated the Ecuadorian Amazon with millions of gallons of toxic wastewater and left toxic sludge behind when their operations in the area were concluded. Ian Austen & Clifford Krauss, Court Says Chevron Can Be Pursued in Canada over Ecuadorean Damage, N.Y. Times (Sept. 4, 2015). The case was originally brought in the United States but was ultimately tried in Ecuador. In 2011, the Ecuadorian court ruled in favor of the plaintiffs, initially with a judgment of almost $18 billion, which was later reduced to $8.6 billion (the Ecuadorian Judgment). Chevron Corp. v. Donziger, 37 F. Supp. 3d 653, 655 (S.D.N.Y. 2014). Under a January 2011 retainer agreement, Donziger was entitled to 6.3% of the money collected on the judgment. ECF No. 346 at 22 n.67.

Shortly after the judgment in Ecuador was issued, Chevron filed a civil Racketeer Influenced and Corrupt Organizations Act (RICO) case against Donziger, alleging that Donziger secured the verdict in the Ecuadorian case through fraud and corruption. Chevron Corp. v. Donziger, 974 F. Supp. 2d 362 (S.D.N.Y. 2014). After years of litigation and an extensive trial, the court in the Southern District of New York, the Honorable Lewis A. Kaplan, ruled in favor of Chevron. The court found that Donziger and his team engaged in a number of improper acts in the case against Chevron, including, for example, submitting false evidence, paying a consulting firm to ghostwrite a purportedly independent expert report, and bribing the Ecuadorian judge. The RICO judgment against Donziger enjoined Donziger from enforcing the Ecuadorian Judgment in any U.S. court and awarded equitable relief to Chevron, including a constructive trust on Donziger’s right to a contingent fee based on the January 2011 retainer agreement, his shares in Amazonia Recovery Limited (a Gibraltar-based company created by Donziger for the purpose of receiving and distributing funds from the Ecuadorian Judgment), and any other property traceable to the judgment. ECF No. 346 at 20. The court also ordered Donziger to provide Chevron with post-judgment discovery, including a list of all devices in his possession, and to provide those devices to a third-party expert for imaging.

Donziger largely refused to comply with the various orders issued by Judge Kaplan. Though the details are important to the court’s finding of criminal contempt, for purposes of this article, it is sufficient to note that Donziger refused to transfer his shares in the judgment to Chevron and later entered a second contingency agreement, which he also refused to transfer to Chevron. Between 2018 and 2019, Judge Kaplan issued multiple directives to Donziger to comply with the court order. Judge Kaplan twice found Donziger in civil contempt and twice ordered coercive civil sanctions, both of which had the intended effect of forcing Donziger to comply. Judge Kaplan also ordered Donziger to surrender his passport, which he refused to do.

On July 30, 2019, Judge Kaplan issued an Order to Show Cause, identifying six counts of criminal contempt of court stemming from Donziger’s failure to provide a list of his devices and to provide the devices for imaging, failure to surrender his passport, and failure to transfer his interests in the Ecuadorian Judgment and shares of Amazonia to Chevron. Order to Show Cause, Chevron Corp. v. Donziger, No. 11-cv-00691 (S.D.N.Y. July 31, 2019), ECF No. 2276. Judge Kaplan did not try the criminal contempt himself; but instead of submitting the case to the random assignment system usually used by the Southern District, Judge Kaplan’s Order to Show Cause directed Donziger “to show cause at a trial beginning at 9:30 a.m. on September 23, 2019 or such later date as the Court may fix, before the Honorable Loretta A. Preska, District Judge.” Id. The same day Judge Kaplan issued the show cause order and assigned the case to Judge Preska, he also issued an Order of Appointment, ordering that Rita M. Glavin, Brian Maloney, and Sareen Armani be “appointed to prosecute Steven Donziger on the charges of criminal contempt of court set forth in the Order to Show Cause.” Order of Appointment, United States v. Steven Donziger, No. 11-cv-00691 (S.D.N.Y. July 31, 2019), ECF No. 2277. In the Order of Appointment, Judge Kaplan explained that he had previously tendered the prosecution for criminal contempt to the U.S. Attorney’s Office and the office “respectfully decline[d] on the ground that the matter would require resources that we do not readily have available.” Id.

Following an initial appearance on August 6, 2019, Judge Preska immediately put Donziger on home confinement with electronic monitoring, where he stayed throughout the entire criminal contempt process, which took two years. On July 26, 2021, following a bench trial, Judge Preska found Donziger guilty of all six charges of criminal contempt. Donziger requested that the court use its discretion to decline to impose criminal sanctions based on the Supreme Court’s observation in Young that “authority must be restrained by the principle that only the least possible power adequate to the end proposed should be used in contempt cases.” ECF No. 346 at 238 (citing Young, 481 U.S. at 801 (emphasis added)). The court denied that request, holding that “[a] court’s vindicating its authority by punishing past violations of its orders is such a permissible end” and finding that the contempt charges were aimed at Donziger’s past violations of Judge Kaplan’s orders and were not limited to securing future compliance with those orders. Id. at 238–39.

On October 1, 2021, the court sentenced Donziger to six months of incarceration. Judgment, United States v. Donziger, No. 19-cr-00561 (S.D.N.Y Oct. 1, 2021), ECF No. 385. Donziger’s motion for new trial was denied. Mem. & Order, United States v. Donziger, No. 19-cr-00561 (Aug. 23, 2021), ECF No. 362 at 18. Donziger appealed his conviction, and his appeal was argued in the Second Circuit on Nov. 30, 2021. But his motion for release on bail pending appeal was denied, and he began his sentence on Oct. 27, 2021. Order, United States v. Donziger, No. 21-02486 (2d Cir. Oct. 26, 2021), ECF No. 43. After one-and-a-half months in prison, Donziger was released to home confinement for the remainder of his sentence due to the COVID-19 pandemic.

How Can Courts Prevent Abuse When Using the Contempt Power?

“The court has long recognized the potential for abuse in exercising the summary power to imprison for contempt—it is an ‘arbitrary’ power which is ‘liable to abuse.’” Bloom v. State of Ill., 391 U.S. 194, 202 (1968). Because criminal contempt is a broad power and is prosecuted without many of the structural protections that are afforded to most defendants—such as presentment of charges to a grand jury and in some cases the right to a jury trial—courts must be careful in how they exercise their power to ensure that prosecutions are conducted fairly and without the perception of bias (either against the defendant or in favor of the court).

Many aspects of criminal contempt prosecutions are ripe for abuse. Courts are permitted to appoint special prosecutors to bring criminal contempt proceedings, even after government prosecutors decline to pursue a case—but it is not always clear who those prosecutors report to and the appointment could raise concerns that the prosecutions are being directed by the courts, who must serve as neutral arbiters. Courts are also permitted to try the cases without a jury, even though the criminal contempt statute contains no statutory maximum penalty. And the court has significant discretion to impose significant sentences of imprisonment.

The lack of oversight and deference to the judiciary likely stem from a recognition that the judiciary must be able to enforce its orders without needing to defer to or depend on the executive branch. A requirement that courts prosecute all assaults on their authority through the executive branch could result in abuse by the executive branch. And the Supreme Court has said that the ability to use private attorneys to prosecute contempt actions reflects the principle that the judiciary must have “a means to vindicate its own authority without complete dependence on other Branches,” concluding that “courts have long had, and must continue to have, the authority to appoint private attorneys to initiate such proceedings when the need arises.” Young, 481 U.S. at 796, 800–01.

However, because of the broad authority given to the judiciary and the relative lack of constitutional protections, if courts are not careful with how they use their awesome criminal contempt power, the risk for abuse is severe. In particular, criminal contempt prosecuted without adequate checks and balances could create a perception that the courts are acting as interested parties in the criminal prosecutions rather than the neutral adjudicators of disputes. Below we discuss three different areas of potential abuse—or perceived abuse—and offer suggestions on how courts should approach these issues.

Use of Special Prosecutors

Criminal contempt does not have to be, but can be, prosecuted by private attorneys rather than by attorneys from the U.S. Attorney’s Office. In Donziger’s case, the criminal contempt was prosecuted by private lawyers from the law firm of Seward & Kissel LLP after the U.S. Attorney declined to prosecute the case. Though courts clearly have the authority to appoint a special prosecutor under the rules—and there are good reasons for the courts to have such a power—the use of special prosecutors appointed by the judiciary raises serious concerns regarding the loyalties of the special prosecutors.

In his pending appeal, Donziger argued that “[t]he prosecution of offenses against the criminal laws of the United States is an executive function that does not shift to the judicial branch when, as here, the U.S. Attorney declines to prosecute.” Appellant Br. at 30, United States v. Donziger, No. 21-02486 (Oct. 4, 2021). Donziger argued that, as an executive function, the court-appointed prosecutors must be supervised and directed by an executive officer accountable to the president. The special prosecutor in Donziger’s case initially took the position that she was exercising “the judiciary’s inherent power” following the declination to prosecute by the executive branch. Id. at 28. However, under the United States’ constitutional system, “the judicial power is the power to decide, in accordance with law, who should prevail in a case or controversy. . . . [That power] does not include the power to seek out law violators in order to punish them—which would be quite incompatible with the task of neutral adjudication.” Young, 481 U.S. at 816 (Scalia, J., concurring in the judgment).

The use of special prosecutors is clearly contemplated by Federal Rule of Criminal Procedure 42, which says, “The court must request that the contempt be prosecuted by an attorney for the government, unless the interest of justice requires the appointment of another attorney. If the government declines the request, the court must appoint another attorney to prosecute the contempt.” Fed. R. Crim. P. 42(a)(2) (emphasis added). And the Supreme Court has said that Rule 42 acknowledges the long-settled principle “that courts possess inherent authority to initiate contempt proceedings for disobedience to their orders, authority which necessarily encompasses the ability to appoint a private attorney to prosecute the contempt.” Young, 481 U.S. at 793. Moreover, one can imagine situations involving criminal contempt in which it would be inappropriate to defer to the executive branch’s decision about whether to prosecute, most notably a situation where the contempt was committed by the prosecutor’s office.

But just because the judiciary has the power to enforce its orders by appointing special prosecutors to investigate and prosecute cases does not mean that those prosecutors should work for the judiciary. As Chief Justice Roberts noted in dissent, “The terrifying force of the criminal justice system may only be brought to bear against an individual by society as a whole, through a prosecution brought on behalf of the government.” Robertson v. United States ex rel. Watson, 560 U.S. 272, 273 (2010) (Roberts, C.J., dissentint). As Judge Preska recognized in the Donziger proceedings, “what the Supreme Court thought critical [in Young and other cases] was federal courts’ authority to initiate criminal contempt proceedings, not to prosecute them.” ECF No. 346 at 145. Indeed, a prosecution that is supervised by the judiciary raises questions about the independence of the judiciary and the judiciary’s ability to fairly adjudicate the complaint. Thus, it is important that the appointed prosecutor “exercises considerable discretion in matters . . . outside the supervision of the court.” Id.

In order to avoid a perception of bias or even vindictiveness, courts should think carefully about whether to appoint a special prosecutor in situations where the executive branch is not involved in the alleged misconduct. In addition, rather than ordering a special prosecutor to prosecute a case, a preferred course may be for the court to appoint a special prosecutor to investigate particular conduct and decide whether to bring criminal charges, just as the government would. That was the approach taken by Judge Emmet Sullivan in the contempt proceedings stemming from the prosecution of U.S. Senator Ted Stevens. In that case, a special prosecutor was appointed because the misconduct was allegedly committed by the prosecutors in the case. However, Judge Sullivan did not direct the special prosecutor to bring charges but rather ordered him “to investigate and prosecute such criminal contempt proceedings as may be appropriate” against the government attorneys responsible for the case. United States v. Stevens, No. 1:09-mc-00198-EGS (Apr. 17, 2009), ECF No. 1-1. The special prosecutor took years to investigate the possible contempt and ultimately drafted a 500-plus-page report. The report found that the attorneys willfully withheld Brady and Giglio material from the defense but found there was not a clear and unequivocal order of the court that the prosecutors violated. Thus, under the standards articulated in the U.S. Attorney’s Manual, the special prosecutor recommended not prosecuting the attorneys for violations of 18 U.S.C. § 401. Notice of Filing of Report to Hon. Emmett G. Sullivan of Investigation Conducted Pursuant to the Court’s Order dated Apr. 7, 2009 at 502–03, United States v. Stevens, No. 1:09-mc-00198-EGS (D.D.C. Mar. 15, 2012), ECF No. 84.

Use of a Bench Trial

Donziger’s trial was a five-day bench trial in front of Judge Preska. Donziger had sought a jury trial on multiple occasions. The court denied the first motion because “contempt defendants charged under 18 U.S.C. Section 401 are not entitled to a jury trial when the possible punishment does not exceed six-months’ incarceration or a $5,000 fine. There is no reason to depart from that rule here.” Order at 9, United States v. Donziger, No. 19-cr-00561 (S.D.N.Y. May 7, 2020), ECF No. 68 (internal citations omitted). Though the contempt statute does not include a statutory maximum, as discussed below, the court said that if before trial it determined that it would not impose a sentence of more than six months’ incarceration, then a bench trial was sufficient. Id. at 9–10. In a second motion, Donziger also argued that, because Counts I and II (related to the failure to provide lists of his devices and to offer the devices for imaging) also constituted obstruction of justice, a jury trial was required under 18 U.S.C. § 3691, which mandates a jury trial for contempts that “also constitute a criminal offense.” Id. The court found that Donziger’s conduct did not constitute obstruction of justice under 18 U.S.C. § 1503 because he did not operate with corrupt intent. Order at 3, 5, United States v. Donziger, No. 19-cr-00561 (S.D.N.Y. Sept. 3, 2020), ECF No. 163.

Typically, when determining whether an offense is a serious offense for purposes of requiring a trial by jury, courts look to the maximum authorized punishment. The Supreme Court has said that “[i]n deciding whether an offense is ‘petty,’ we have sought objective criteria reflecting the seriousness with which society regards the offense, and we have found the most relevant such criteria in the severity of the maximum authorized penalty.” Baldwin v. New York, 399 U.S. 66, 68 (1970) (internal citations omitted). The court has concluded that a statute that limits the maximum possible sentence to under six months is sufficiently short to permit the classification of the offense as petty, but “no offense can be deemed ‘petty’ for purposes of the right to trial by jury where imprisonment for more than six months is authorized.” Id.

However, criminal contempt prosecutions are treated differently. Criminal contempt has no statutory maximum sentence, and as discussed below, defendants have received sentences significantly longer than six months. Under the general rule, contempt prosecutions would thus traditionally require trial by jury. However, the Supreme Court has said that for criminal contempt prosecution, “we are to look to the penalty actually imposed as the best evidence of the seriousness of the offense.” Bloom, 391 U.S. at 211. The Court in Bloom looked at the two-year sentence imposed and found that a jury trial was required, but since then, courts have done the reverse and have preemptively said that if they will not impose a sentence of more than six months, then a jury trial is not required.

This principle is now settled law, but it may nevertheless be wise for the courts to err on the side of providing a jury trial in contempt cases. Because criminal contempt is supposed to vindicate the authority of the court, allowing a judge to hold onto the case simply by agreeing not to impose a sentence over six months could create a perception of bias. That perception that the judge is seeking to influence the outcome of the proceeding is heightened in situations where the judge does not recuse or where, as in Donziger’s case, the judge hearing the case is hand-selected by the judge whose order was violated.

Sentencing

As discussed above, 18. U.S.C. § 401 does not include a statutory maximum penalty. Some courts have interpreted that to mean that “the statutory maximum for criminal contempt is life.” United States v. Ashqar, 582 F.3d 819, 825 (7th Cir. 2009). Others have concluded that “[i]t would be unreasonable to conclude that by authorizing an open-ended range of punishments to enable courts to address even the most egregious contempts appropriately, Congress meant to brand all contempts as serious and all contemnors as felons.” United States v. Broussard, 611 F.3d 1069, 1072 (9th Cir. 2010).

The Sentencing Guidelines do not include guidelines for contempt. In the application notes, the Sentencing Commission says, “Because misconduct constituting contempt varies significantly and the nature of the contemptuous conduct, the circumstances under which the contempt was committed, the effect the misconduct had on the administration of justice, and the need to vindicate the authority of the court are highly context-dependent, the Commission has not provided a specific guideline for this offense.” U.S.S.G. § 2J1.1 (stating that if the offense is sufficiently analogous to obstruction of justice, § 2J1.2 may apply); see also U.S.S.G. § 2X5.1 (stating that if no guideline is promulgated, apply the most analogous offense guideline).

The combination of the lack of a statutory maximum and the lack of a sentencing guideline provision gives broad discretion to courts to punish contempt as they see fit. And some sentences can be quite harsh. In United States v. Trudeau, 812 F.3d 578, 581 (7th Cir. 2016), author Kevin Trudeau was convicted of criminal contempt and was sentenced to 10 years’ imprisonment for violation of a federal court order. See Press Release, FBI, Weight Loss Infomerical Pitchman Kevin Trudeau Convicted of Criminal Contempt (Nov. 12, 2013). Trudeau was sued by the Federal Trade Commission (FTC) on multiple occasions for violating consumer-protection laws with fraudulent infomercials. To resolve one such lawsuit, he entered into a consent decree, which initially prohibited him from marketing any products without approval by the FTC and was later amended to allow him to appear in infomercials for his books so long as the infomercials did not misrepresent the content of his books. Trudeau, 812 F.3d at 581. In 2007, Trudeau published “The Weight Loss Cure ‘They’ Don’t Want You to Know About” and produced three infomercials to promote the book. Id. The FTC sued Trudeau for violating the consent order, and the district court found that the infomercials misrepresented the content of the book. Id. The court held Trudeau in civil contempt and entered a $37.6 million judgment, the gross revenue from the book sales through the infomercials. Id. at 582. The district court also issued a show cause order for criminal contempt, originally limiting the sentence to a maximum of six months. Id. The U.S. Attorney’s office agreed to prosecute Trudeau. Id. After the case was moved to a new judge, that judge granted the prosecution’s petition to lift the six-month sentence cap due to the seriousness of the contempt and Trudeau’s history of violating orders. Id. at 583. After a jury trial, Trudeau’s 10-year sentence was upheld by the Seventh Circuit. Id. at 593–94 and n.6. Even though the sentence was deemed lawful, many would view a 10-year prison sentence for violating an order in a civil case extraordinary.

Donziger’s sentence was the maximum possible sentence the judge could impose while keeping the prosecution as a bench trial. In addition, though his sentence was six months of incarceration, by the time he began his prison sentence, Donziger had served more than 800 days of home confinement. On August 6, 2019, at Donziger’s initial appearance before Judge Preska, the court ordered home confinement as part of Donziger’s pretrial conditions of release. Transcript of Hearing at 27:4–28:6, United States v. Donziger, No. 19-cr-00561 (S.D.N.Y Aug. 5, 2019), ECF No. 18. Donziger sought modification or elimination of the home confinement five times, which Judge Preska rejected each time, “finding that Mr. Donziger was a flight risk based, inter alia, on his extensive ties to Ecuador and the possibility that he faced imprisonment for the first time.” ECF No. 346 at 130. Donziger appealed these rejections twice, and in both instances the court of appeals affirmed the home confinement order. Id. at 130–31.

In September 2021, the United Nations Working Group on Arbitrary Detention, in a unanimous decision by a five-member panel, found that the home confinement of Donziger violated the International Covenant on Civil and Political Rights. Human Rights Council, Opinions adopted by the working Group on Arbitrary Detition at its 91st session: Opinion No. 24/2021, H.R. Doc. A/HRC/WGAD/2021/24 (Sept. 17, 2021). The Working Group noted that house arrest has been found to constitute a deprivation of liberty, and that “the maximum penalty for the crime Mr. Donziger is accused of is 6 months imprisonment, which means Mr. Donziger, having been under house arrest since 6 August 2019, has already served the maximum possible penalty some four times over. In this regard the Working Group recalls that the Human Rights Committee has argued that ‘[I]f the length of time that the defendant has been detained reaches the length of the longest sentence that could be imposed for the crimes charged, the defendant should be released.’” Id. ¶ 76. The panel also expressed concerns about the bias of Judge Kaplan and the denial of a jury trial. The panel concluded that “the appropriate remedy would be to release Mr. Steven Donziger immediately and accord him an enforceable right to compensation and other reparations, in accordance with international law.” Id. ¶ 90.

As with the discussions of the special prosecutors and use of bench trials, judges have significant discretion in sentencing for criminal contempt, which leaves significant room for abuse. Though the court in Donziger limited its sentence to six months when it denied Donziger’s motions for a trial by jury, it still detained Donziger for multiple years through home confinement.

Conclusion

The criminal contempt power affords the judiciary significant authority to not only serve as neutral adjudicators but also to define the scope of the crime, oversee or otherwise impact the prosecution of the case through the appointment of special prosecutors, and determine punishment. Though there is a recognized need for the judiciary to have this authority, the broad and largely unstructured scope of the authority creates risk of abuse, particularly given the relative lack of constitutional protections in the criminal contempt context. Without proper safeguards, the criminal contempt power risks damaging perception of the judiciary as neutral and objective adjudicators of the facts. Courts should therefore be mindful of those risks and take steps to ensure the risks are properly mitigated.