ROBERTS, C. J., DISSENTING
ROBERTSON V. UNITED STATES EX REL. WATSON
560 U. S. ____ (2010)
SUPREME COURT OF THE UNITED STATES
NO. 08-6261
JOHN ROBERTSON, PETITIONER
v. UNITED
STATES ex rel. WYKENNA WATSON
on writ of certiorari to the district of columbia
court of appeals
[May 24, 2010]
Chief Justice Roberts, with whom
Justice Scalia, Justice Kennedy, and Justice Sotomayor join,
dissenting.
This is a complicated case, but
it raises a straightforward and important threshold issue. When we
granted certiorari, we rephrased the question presented to focus on
that issue: “Whether an action for criminal contempt in a
congressionally created court may constitutionally be brought in
the name and pursuant to the power of a private person, rather than
in the name and pursuant to the power of the United States.” 558 U.
S.___ (2009). The answer to that question is no. 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. The court below held
otherwise, relying on a
dissenting opinion in one of our
cases, and on the litigating position of the United States, which
the Solicitor General has properly abandoned in this Court. See
Brief for United States as
Amicus Curiae 12–13, n. 3.
We should correct the lower court’s error and return the case to
that court to resolve the remaining questions.
I
In March 1999, Wykenna Watson was
assaulted by her then-boyfriend, John Robertson. App. 40. Watson
sought and secured a civil protective order against Robertson,
prohibiting him from approaching within 100 feet of her and from
assaulting, threatening, harassing, physically abusing, or
contacting her.
Id., at 20. At the same time, the United
States Attorney’s Office (USAO) was independently pursuing criminal
charges against Robertson arising from the assault.
On June 26, Robertson violated
the protective order by again violently assaulting Watson. On July
8, he was indicted for the previous March incident; shortly
thereafter, the USAO offered, and Robertson accepted, a plea
agreement resolving those charges.
Id., at 26–30. At the
top of the boilerplate plea form, the Assistant U. S. Attorney
added in longhand: “In exchange for Mr. Robertson’s plea of guilty
to attempt[ed] aggravated assault, the gov’t agrees to: DISMISS the
[remaining] charges[,] [and] [n]ot pursue any charges concerning an
incident on 6-26-99.”
Id., at 28. The Superior Court
accepted Robertson’s plea and sentenced him to 1 to 3 years’
imprisonment.
Id., at 30, 46, 53.
A few months later, Watson filed a motion to
initiate criminal contempt proceedings against Robertson for
violating the civil protective order, based on the June 26 assault.
See D. C. Code §16–1005(f) (2009 Supp.); D. C. Super. Ct.
Domestic Violence Rule 12(d) (Lexis 2010);
In re
Robertson, 940 A. 2d 1050, 1053 (D. C. 2008). After
a 2-day bench trial, the court found Robertson guilty on three
counts of criminal contempt and sentenced him to three consecutive
180-day terms of imprisonment, suspending execution of the last in
favor of five years’ probation. The court also ordered Robertson to
pay Watson roughly $10,000 in restitution. App. 2, 63–64. Robertson
filed a motion to vacate the judgment, which the court denied.
Robertson appealed. Criminal contempt
prosecutions, he argued, “are between the public and the
defendant,” and thus could “only be brought in the name of the
relevant sovereign, … the United States.” Brief for Petitioner 8,
10 (quoting Brief for Appellant in No. 00–FM–1269 etc.
(D. C.), pp. 20–21, and 940 A. 2d, at 1057; internal
quotation marks omitted). So viewed, the prosecution based on the
June 26 incident could not be brought, because the plea agreement
barred the “gov[ernmen]t” from pursuing any charges arising from
that incident.
The Court of Appeals rejected Robertson’s
arguments, in a two-step holding. Step one: “the criminal contempt
prosecution in this case was conducted as a private action brought
in the name and interest of Ms. Watson, not as a public action
brought in the name and interest of the United States or any other
governmental entity.” 940 A. 2d, at 1057–1058 (internal
quotation marks and brackets omitted). Step two: because the
criminal contempt prosecution was brought as an exercise of private
power, that prosecution did not implicate a plea agreement that
bound only the government.
Id., at 1059–1060.
We granted certiorari to review the first step
of that holding.
II
A
Our decision in
United
States v.
Dixon,
509 U. S. 688 (1993),
provides the answer to the question presented here. The question in
Dixon was one of double jeopardy—whether a private party’s
prosecution for criminal contempt barred the Government’s
subsequent prosecution for the “same criminal offense.”
Id., at 696. The private prosecution in that case was
brought under the same D. C. contempt law at issue here.
Id., at 692 (citing D. C. Code §16–1005 (1989)).
We thought it “obvious” in
Dixon that double jeopardy protections barred the
Government’s subsequent prosecution. 509 U. S., at 696. The Double
Jeopardy Clause, of course, bars the second prosecution for the
same offense only if that prosecution is brought by the same
sovereign as the first. See
Heath v.
Alabama,
474 U. S. 82,
88–89 (1985). Thus, the only possible way the Government’s
second prosecution could have offended the Double Jeopardy
Clause is if the Court understood the criminal contempt prosecution
to be the Government’s
first prosecution—
i.e.,
one brought
on behalf of the Government. See
United
States v.
Halper,
490 U. S. 435, 451
(1989) (“The protections of the Double Jeopardy Clause are not
triggered by litigation between private parties”), overruled on
other grounds by
Hudson v.
United States,
522 U. S. 93
(1997).
That we treated the criminal contempt
prosecution in
Dixon as an exercise of government power
should not be surprising. More than two centuries ago, Blackstone
wrote that the king is “the proper person to prosecute for all
public offenses and breaches of the peace, being the person injured
in the eye of the law.” 1 W. Blackstone, Commentaries *268.
Blackstone repeated that principle throughout his fourth book. See,
e.g., 4
id., at *2, *8, *177. Not long after
Blackstone, then-Representative John Marshall agreed, stating on
the House floor that “administer[ing] criminal judgment … is a duty
to be performed at the demand of the nation, and with which the
nation has a right to dispense. If judgment … is to be pronounced,
it must be at the prosecution of the nation.” 10 Annals of Cong.
615 (1800).
This principle has deep historical roots. See,
e.g., 1 F. Wharton, Criminal Law §10, p. 11 (9th ed. 1885)
(“Penal justice … is a distinctive prerogative of the State, to be
exercised in the service [of] the State”); see also J. Locke,
Second Treatise of Civil Government §88, pp. 43–44 (J. Gough ed.
1947) (“[E]very man who has entered into civil society, and is
become a member of any commonwealth, has thereby quitted his power
to punish offences against the law of nature in prosecution of his
own private judgment[.] … [H]e has given a right to the
commonwealth to employ his force for the execution of the judgments
of the commonwealth” (footnote omitted)). As this Court has said
before, “[c]rimes and offenses against the laws of any State can
only be defined, prosecuted and pardoned by the sovereign authority
of that State.”
Huntington v.
Attrill,
146 U. S. 657, 669
(1892); see also
Heath,
supra, at 88 (“The dual
sovereignty doctrine [of the Double Jeopardy Clause] is founded on
the common-law conception of crime as an offense against the
sovereignty of the government”).
These core principles are embodied in the
Constitution. The protections our Bill of Rights affords those
facing criminal prosecution apply to “
any person,”
“
any criminal case,” and “
all criminal
prosecutions.” Amdts. 5, 6 (emphasis added). But those protections
apply only against
the government; “[i]ndividual
invasion of individual rights” is not covered.
Civil Rights
Cases,
109 U. S.
3, 11 (1883) (Fourteenth Amendment). If the safeguards of the
Bill of Rights are to be available in “all criminal prosecutions,”
then any such prosecution must be considered to be one on behalf of
the government—otherwise the constitutional limits do not apply.
“The Constitution constrains governmental action ‘by whatever
instruments or in whatever modes that action may be taken,’ ”
Lebron v.
National Railroad Passenger
Corporation,
513 U. S. 374, 392
(1995) (quoting
Ex parte Virginia,
100 U. S. 339, 346–347
(1880)), but the action still must be
governmental
action.
The court below, however, rejected this
understanding, concluding that Watson’s “criminal contempt
prosecution” was not “a public action” but “a private action,” such
that it was not covered by an agreement binding the government. 940
A. 2d, at 1057–1058 (internal quotation marks omitted). But as
we have explained, “[t]he purpose of a criminal court is not to
provide a forum for the ascertainment of private rights. Rather it
is to vindicate the public interest in the enforcement of the
criminal law while at the same time safeguarding the rights of the
individual defendant.”
Standefer v.
United
States,
447 U.
S. 10, 25 (1980) (internal quotation marks omitted).
The holding below gives rise to a broad array
of unsettling questions. Take the Due Process Clause. It guarantees
particular rights in criminal prosecutions because the prosecutor
is a state actor, carrying out a “duty
on the part of the
Government.”
Kyles v.
Whitley,
514 U. S. 419, 433
(1995) (emphasis added). But if the criminal prosecution is instead
viewed as “a private action,” not an exercise of sovereign power,
how would those rights attach? Cf.
DeShaney v.
Winnebago County Dept. of Social Servs.,
489 U. S. 189, 195–196
(1989). What about
Brady v.
Maryland,
373 U. S. 83 (1963)? The
private prosecutor is likely to have evidence pertinent to the
proceeding—particularly if, as here, the private prosecutor is also
the victim of the crime. But if the prosecutor is not exercising
governmental authority, what would be the constitutional basis for
any
Brady obligations? May the private prosecutor
interview the defendant without
Miranda warnings, since
she is not acting on behalf of any sovereign but only in a private
capacity? See
Miranda v.
Arizona, 384 U. S. 436
(1966).
Our entire criminal justice system is premised
on the notion that a criminal prosecution pits the government
against the governed, not one private citizen against another. The
ruling below is a startling repudiation of that basic
understanding.
B
Despite the foregoing, the Court
of Appeals determined that Watson brought this criminal prosecution
under her authority as a private citizen. 940 A. 2d, at 1058.
To reach that conclusion, the court relied on Justice Blackmun’s
separate opinion in
Dixon. See 940 A. 2d, at 1057
(“As Justice Blackmun said in
United States v.
Dixon, criminal contempt is ‘a special situation.’
[
Dixon, 509 U. S., at 742 (opinion concurring in judgment
in part and dissenting in part)]. … ‘[T]he purpose of contempt is
not to punish an offense against the community at large but rather
to punish the specific offense of disobeying a court order.’
[
Ibid.]” (citation omitted)). In fact, the court quoted
from Justice Blackmun’s separate opinion no fewer than four times.
Id., at 1057.
Justice Blackmun’s opinion,
however, was a partial concurrence in the judgment and partial
dissent, and it garnered only one vote. Moreover, the portion of
the opinion relied upon by the court below was the
dissenting part. A majority of the Court squarely rejected
Justice Blackmun’s view, and did so in plain terms. See
Dixon, 509 U. S., at 699–701 (opinion of Scalia, J.,
joined by Kennedy, J.); see
id., at 720 (White, J., joined
by Stevens and Souter, JJ., concurring in judgment in part and
dissenting in part).
Before this Court, Watson understandably
retreats from Justice Blackmun’s dissenting opinion. Instead, she
argues that “[i]n England and in America at the time of the
Founding, prosecutions by victims of crime and their families were
the rule, not the exception.” Brief for Respondent 38–39. But such
prosecutions, though brought by a private party, were commonly
understood as an exercise of sovereign power—the private party
acting on behalf of the sovereign, seeking to vindicate a public
wrong.
In England, for example, private parties could
initiate criminal prosecutions, but the Crown—entrusted with the
constitutional responsibility for law enforcement—could enter a
nolle prosequi to halt the prosecution. See,
e.g.,
King v.
Guerchy, 1 Black W. 545,
96 Eng. Rep. 315 (K. B. 1765);
King v.
Fielding, 2 Burr. 719, 720, 97 Eng. Rep. 531 (K. B.
1759); see also
King v.
State, 43 Fla. 211, 223,
31 So. 254, 257 (1901) (Private prosecutions in England were
understood to be “conducted on behalf of the crown by the privately
retained counsel of private prosecutors”); P. Devlin, The
Criminal Prosecution in England 21 (1958).
Watson’s arguments based on American precedent
fail largely for the same reason: To say that private parties could
(and still can, in some places) exercise some control over criminal
prosecutions says nothing to rebut the widely accepted principle
that those private parties necessarily acted (and now act) on
behalf of the sovereign. See,
e.g.,
Cronan ex rel.
State v.
Cronan, 774 A. 2d 866, 877 (R. I.
2001) (“[A]ttorneys conducting private prosecutions stand in the
shoes of the state”);
State v.
Westbrook, 279
N. C. 18, 36, 181 S. E. 2d 572, 583 (1971) (“The
prosecuting attorney, whether the solicitor or privately employed
counsel, represents the State”); Sidman, The Outmoded Concept of
Private Prosecution, 25 Am. U. L. Rev. 754, 774 (1976) (“[T]he
privately retained attorney becomes, in effect, a temporary public
prosecutor”). Indeed, many of the state court authorities Watson
herself cites expressly recognize this fundamental point. See,
e.g.,
Katz v.
Commonwealth, 379 Mass.
305, 312, 399 N. E. 2d 1055, 1060 (1979) (“[I]t is clear with
respect to the criminal aspects of the present case that the
Commonwealth … is the adverse party”).
We have no need to take issue with that
proposition, but this case is different. The whole point of the
ruling below was that this was not a “public action” that happened
to be litigated by a private party, but “a private action brought
in the name and interest of [Ms.] Watson.” 940 A. 2d, at
1057–1058. That holding was critical in explaining why Watson’s
criminal action was not barred by a plea agreement that bound the
government.
Moving beyond criminal prosecutions generally,
Watson next contends that contempt prosecutions are unique, and
thus should be exempt from the general rule. See Brief for
Respondent 24. If Watson means to argue that modern criminal
contempts are not “crimes,” that view was squarely rejected by this
Court in
Bloom v.
Illinois,
391 U. S. 194 (1968).
See
id., at 199–200 (holding that a criminal contempt
prosecution is a criminal prosecution for the purposes of the Sixth
Amendment); see also
id., at 201 (“Criminal contempt is a
crime in the ordinary sense”);
United States v.
Providence Journal Co.,
485 U. S. 693, 700
(1988) (“The fact that the allegedly criminal conduct concerns the
violation of a court order instead of common law or a statutory
prohibition does not render the prosecution any less an exercise of
the sovereign power of the United States”).
In any event, even if contempt prosecutions
might not always count as “crimes,” this one undoubtedly does, as
Watson herself concedes. Brief for Respondent 34 (“[T]his case was
clearly a criminal contempt proceeding from beginning to end”).
That concession is well taken, given that whether a particular
punishment is criminal or civil is “a matter of statutory
construction,”
Hudson, 522 U. S., at 99, and that the
relevant provisions here make clear that contempt proceedings like
this one are criminal, see D. C. Code §16–1005(f) (“[C]riminal
contempt shall be punished by a fine not exceeding $1,000 or
imprisonment for not more than 180 days, or both”); see also
D. C. Super. Ct. Domestic Violence Rule 12(d) (labeled “Motion
to adjudicate criminal contempt,” and describing the violation as
“criminal contempt”). As Justice Holmes put it for the Court:
“These contempts are infractions of the law, visited with
punishment as such. If such acts are not criminal, we are in error
as to the most fundamental characteristic of crimes as that word
has been understood in English speech.”
Gompers v.
United States,
233 U. S. 604, 610
(1914).
The United States bears some responsibility
for leading the court below astray. In that court, the Government
argued that the criminal contempt prosecution was “ ‘a private
action brought in the name and interest of [Ms.] Watson, not … a
public action brought in the name and interest of the United States
or any other governmental entity.’ ” 940 A. 2d, at 1056
(quoting Brief for United States in No. 00–FM–925 etc.
(D. C.)). The court below quoted that precise language in
stating its conclusion. See 940 A. 2d, at 1057–1058
(same).
Before this Court, the Solicitor General has
properly abandoned that position, and does not defend the lower
court’s decision on this issue. See Brief for United States as
Amicus Curiae 12–13, n. 3 (“[T]he United States no
longer believes the contempt prosecution at issue can be understood
as a purely ‘private action’ ”). We should do our part and
correct the ruling of the court below.
III
The ultimate issue in this case,
of course, is whether the criminal contempt prosecution Watson
initiated in January 2000 violated the plea agreement Robertson
signed with the USAO in July 1999. The Court of Appeals said “no,”
based solely on its determination that Watson was exercising
private—not sovereign—power. With that determination in hand, the
ultimate plea agreement question was straightforward: If Watson was
wielding purely private power, a plea agreement that by its terms
bound only the “gov[ernmen]t” would not bind her.
With a proper view of Watson’s
role in this case, however, the plea agreement question becomes
significantly more difficult. The Solicitor General argues that the
agreement does not bar the contempt prosecution, even if that
prosecution is correctly viewed as on behalf of the sovereign.
Id., at 29–32. The difficult aspects of that legal issue,
however, should not cause us to shy away from answering the
fundamental threshold question whether a criminal prosecution may
be brought on behalf and in the interest of a private party. Having
decided that threshold question in favor of Robertson, I would
remand to the court below to consider the plea agreement from the
proper starting point.
In light of all the foregoing, it is worth
stressing that the majority’s determination not to decide that
question “carries with it no implication whatever regarding the
Court’s views on the merits.”
Maryland v.
Baltimore
Radio Show, Inc.,
338 U. S. 912, 919
(1950) (Frankfurter, J., respecting denial of certiorari).
* * *
Allegorical depictions of the law
frequently show a figure wielding a sword—the sword of justice, to
be used to smite those who violate the criminal laws. Indeed,
outside our own courthouse you will find a statue of more than 30
tons, Authority of Law, which portrays a male figure with such a
sword. According to the sculptor, James Earle Fraser (who also
designed the buffalo nickel), the figure sits “wait[ing] with
concentrated attention, holding in his left hand the tablet of
laws, backed by the sheathed sword, symbolic of enforcement through
law.” Supreme Court of the United States, Office of the Curator,
Contemplation of Justice and Authority of Law Information Sheet 2
(2009) (available in Clerk of Court’s case file). A basic step in
organizing a civilized society is to take that sword out of private
hands and turn it over to an organized government, acting on behalf
of all the people. Indeed, “[t]he … power a man has in the state of
nature is the power to punish the crimes committed against that
law. [But this] he gives up when he joins [a] … political society,
and incorporates into [a] commonwealth.” Locke, Second Treatise,
§128, at 64.
The ruling below contravenes that
fundamental proposition, and should not be allowed to stand. At the
very least, we should do what we decided to do when we granted
certiorari, and took the unusual step of rephrasing the question
presented: answer it.
I respectfully dissent from the Court’s
belated determination not to answer that question.
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