Kim Davis, the clerk of Rowan County, KY, was jailed for 5 days last September for failing to comply with a federal court order requiring her to issue marriage licenses to same-sex couples. I am not interested in debating the merits (or lack thereof) of her position on the marriage issue. Instead, I want to explore whether jailing someone for civil contempt is a useful method to coerce compliance with a court order.
In Ms. Davis’s case, when she was released from jail, “she and her lawyer would not say whether she would continue to defy court orders and try to block the licenses.” Ultimately, she did not block the issuance of marriage licenses, but neither did she allow the licenses to bear her name, title, or Rowan County. So, was the time spent in jail effective in obtaining compliance? It appears not. (Interestingly, the couples who sued Kim Davis did not seek jail time as a contempt sanction; they asked that she be fined.) One article also noted that jail time and fines were not the only options for the judge; instead, the judge could have forbidden Davis from issuing any marriage licenses at all. In that case, that responsibility would have fallen to a Rowan County judge, who had said that he was willing to issue licenses equally.
In one extreme case, a Pennsylvania lawyer spent more than 14 years in jail for civil contempt. That lawyer, in his own contentious divorce, failed to comply with an order to put $2.5 million into a court-controlled account. The court believed that the lawyer was hiding the money, but the lawyer claimed that he lost the money in bad investments. After 14 years (and multiple appeals), the court determined that, even if he had the money, he was unlikely to comply with the order. Because there was little chance of compliance, there was little reason to continue to confine him.
(I should note that in Michigan, a statute limits jail time for contempt to a maximum of 93 days. The court must release the contemnor when the contempt is cured or the 93-day period expires. The court also may impose a $7,500 fine.)
So, if neither five days nor 14 years in jail results in compliance with a court order, is it a useful tool? Even if jail time results in compliance in many cases, is it generally more just to impose a fine? Are there some cases that are so egregious that jail is the best option? To be sure, a court must have some methods at its disposal to enforce its orders. What I am not sure of, however, is that taking away someone’s liberty is the most appropriate option.
For more about contempt of court in Michigan, take a look at chapter 24 of Michigan Law of Damages and Other Remedies.