When Does Jail Fail to Scare?

Dave Hoffman

Dave Hoffman is the Murray Shusterman Professor of Transactional and Business Law at Temple Law School. He specializes in law and psychology, contracts, and quantitative analysis of civil procedure. He currently teaches contracts, civil procedure, corporations, and law and economics.

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17 Responses

  1. Jack says:

    “…even civil law must be obeyed”

    but not at the pain of incarceration and due process. Ever heard of a debtor’s prison while clerking for your fancy judge in your ivory tower?

  2. larry says:

    Jack is right: this isn’t much different than having a debtor’s prison. In history classes 19th century governments in England and the US are condemned for maintaining Dickensian debtor’s prisons, and act as if this sort of thing no longer exists in this enlightened era, but it does.

    You can fashion a clever argument that this isn’t true, but it still comes down to imprisoning someone for not coming up with money a court determines he owes.

  3. Mark says:

    The feminist (man bad, woman good) family court is not a safe place for a man and or a father.

    Though unique, H. Beatty Chadwick judgment is one of many examples of the injustices toward men.

    For example during my wife’s divorce from me, I observed men jailed for money, but never a woman for visitation.

    Men lose the kids, eighteen (18) years of income, assets, and liberties, in America’s unilateral divorce.

  4. Jim says:

    Unbelievable…a person spends 12 years in jail for owing money, and we stand idly by and let it happen? No criminal trial…no judgment by his peers…simply a judge. How can this be in the USA?

    Let him out or put him before a jury. This isn’t China.

  5. Deadbeat says:

    The only way to alter the system of divorce and child support and reduce attorney’s parasitical role is by socializing child support. The current system is set up to atomize child support — especially fathers. This places a huge burden on individuals and makes the entire burden of raising children regressive. This is why divorced men feel so isolated. That is by designed and is designed to increase the level of exploitation upon fathers.

    The author conclusion thereby seeks to protect as well as maintain the status quo by using civil courts as a way to atomize this particular father into a individual “case” rather than allow us to see that this individual case is all part of the socialized exploitation of father’s labor that benefits the systems rather than families.

    The only solution to this issue of paternal pecuniary is the complete socialization of child rearing.

    Interestingly enough notice that feminist group do not advocate socializing child rearing as they desire to increase the exploitation of fathers to build up their membership through misanthropy.

  6. Deadbeat says:

    The only way to alter the system of divorce and child support and reduce attorney’s parasitical role is by socializing child support. The current system is set up to atomize child support — especially fathers. This places a huge burden on individuals and makes the entire burden of raising children regressive. This is why divorced men feel so isolated. That is by designed and is designed to increase the level of exploitation upon fathers.

    The author conclusion thereby seeks to protect as well as maintain the status quo by using civil courts as a way to atomize this particular father into a individual “case” rather than allow us to see that this individual case is all part of the socialized exploitation of father’s labor that benefits the systems rather than families.

    The only solution to this issue of paternal pecuniary is the complete socialization of child rearing.

    Interestingly enough notice that feminist group do not advocate socializing child rearing as they desire to increase the exploitation of fathers to build up their membership through misanthropy.

  7. Fugazi says:

    Even if you agree with Alito’s opinion, surely we can consider the age and health of the contemnor? He’s 71 years old and has Non-Hodgkins lymphoma.

  8. Anonymous says:

    As in far too many appellate opinions these days the Alito opinion completely mis-cites Bagwell, 512 U.S. at 828, 114 S.Ct. 2552 (1994). Bagwell was about a fine, not imprisonment, and the fine was determined to be a criminal sanction. So the length of permissible incarceration was never at issue.

    Even more important, a crucial part of the paragraph Alito cites to in Bagwell was omitted from his opinion. The full Bagwell paragraph states:

    “The paradigmatic coercive, civil contempt sanction, as set forth in Gompers, involves confining a contemnor indefinitely until he complies with an affirmative command such as an order “to pay alimony, or to surrender property ordered to be turned over to a receiver, or to make a conveyance.” 221 U. S., at 442; see also McCrone v. United States, 307 U. S. 61, 64 (1939) (failure to testify). Imprisonment for a fixed term similarly is coercive when the contemnor is given the option of earlier release if he complies. Shillitani v. United States, 384 U. S. 364, 370, n. 6 (1966) (upholding as civil “a determinate [2-year] sentence which includes a purge clause”). In these circumstances, the contemnor is able to purge the contempt and obtain his release by committing an affirmative act, and thus ” ‘carries the keys of his prison in his own pocket.’ ” Gompers, 221 U. S., at 442, quoting In re Nevitt,117 Fed. 448, 451 (CA8 1902).

    Bagwell 512 US at 828″

    The two cases above paragraph, McCrone and Shillitani are missing from the Alito cite to the Bagwell paragraph and involve incarceration for the commonest form of contempt, involving a witness who refuses to testify. Congress has clearly legislated the issue of a maximum period of contempt incarceration (18 months) in 28 USC 1826. No one would seriously contend that the Supreme Court was intending to repeal section 1826 (which was passed after the above two cited cases and long before Bagwell was issued). The full Bagwell paragraph was in the context of a general discussion of distinctions between civil and criminal sanctions.

    In fact, civil contempt is a scourge of basic constitutional rights. Although, in theory, it is to be conducted in a manner that preserves rights, in practice it has become license to suspend those rights. Human nature axiomatically declares that when given absolute power (a throwback to the middle ages here) a person (even a judge!) will ultimately abuse that power. To paraphrase the great biographer of human nature, Friedrich August von Hayek, “who watches the watchers?”

  9. I was once imprisoned for three weeks for allegedly failing to comply with Family Court orders, while in that time the Court ordered that my daughter was to go on access to her mother and I was denied any contact during that time with her.

    The Court held that I breached its Court orders by failing to allow access of the child to the mother.

    My issue was that I had Supreme Court orders and those orders stipulated certain access regime with which I complied. I refused to recognise the validity of the Family court orders. Also, I pursued, with medical evidence, that my daughter (then 9) was being sexual abuse during access times, as had been her sister who lived with the mother in regard of which Children Court orders were issued against the mother’s then husband. I took the case to the High Court of Australia (1994) and the judge made clear that there was no need for transfer of application from the Supreme Court to the Family Court as by the Cross Vesting Act it (The Family Court) had legal powers. This I contested to be so. In 1999 the High Court in another case Wakim HCA 27 of 1999 then held the Cross Vesting Act was unconstitutional. Faced with the fact that I was clearly unconstitutionally imprisoned, and so others had been wrongly dealt with, the Parliament then (unconstitutionally) legislated retrospectively that all invalid Court orders were deemed to be valid in law!

    While my daughter was forced on access (while I was imprisoned) my daughter was again sexual abused!

    She is now an adult but continue to blame herself, regardless that I keep explaining to her it was not her fault, that had she not complained about being sexual abused I would never have been imprisoned.

    As a “CONSTITUTIONALIST” I now fight for others for their constitutional rights. See also my blog at http://au.360.yahoo.com/profile-ijpxwMQ4dbXm0BMADq1lv8AYHknTV_QH

    .

    In my view, judges have far too much powers they can wiled regardless how wrong they might be. In my view, CONTEMPT OF COURT for any judge to impose should be ( perhaps – if at all) no more then 1 year maximum and if the judge then consider that the alleged offender still ought to be continued to be incarcerated then he should pursue within legislative provisions to have the alleged offender formally charged under criminal provisions.

    If this were to have applied to CHADWICK then I view it would be, so to say, a totally different ballgame as then ordinary criminal provisions would apply.

    We must never forget that JUDGES are judicial officers and should not have the powers to be, so to say, “judge and jury” without any right to appeal such an injustice.

    With the CHADWICK case it appears to me that the judges can, so to say, freely roaming about imprisoning any person they hold in contempt forever in the day, as such are exceeding their JUDICIAL powers. The separation of powers was provided so that JUDICIAL POWERS is apart of the executive and legislative powers, but with this kind of CONTEMPT the judiciary has taken it all.

    .

    The issue is not if I agree or disagree with the facts of the case relating to CHADWICK, rather then that I view, CONTEMPT OF COURT ought to be a CRIMINAL OFFENCE and let the legislators provide guidelines as to what might be an appropriate punishment. That was provided for in my case in the legislation, if it hadn’t I could perhaps have faced a CHADWICK kind of imprisonment, regardless that constitutionally I was in the right!

  10. Lexi says:

    If one prinicipal of our legal system is to let 10 guilty men go free rather than to convict an innocent one, then what should we say about holding a person who has been convicted of nothing? Yes, civil law needs to be obeyed but what does such draconian punishment (er, coercion?) say about our civility, no humanity… as a nation?

  11. Mike says:

    This guy is not in jail for being unable to pay a debt. This guy is in jail for saying “Ha ha, look at me … I am perfectly able to pay my debt, but SCREW YOU judge, I refuse to do so!!!” That’s different, and he deserves to be in jail. Otherwise, asset protection lawyers (myself included) will help everyone who can afford to pay our fees avoid all their debts, leaving honest people to get screwed. That would not be good. But this case is a good outcome and good for society.

  12. Rexette says:

    Asset protection lawyers? How about money grubbing slimeballs? Is anybody listening to the facts? The local judge assigned a retired judge to investigate whether or not Mr. chadwick had the funds they have been looking for all these years. 18 months later and 2 outside agencies hired to investigate, the retired judge submitted his report to the local court and advised that Mr. Chadwick did NOT have the money and that his incarceration should end immediately. How did the local judge respond? He threw out the report because it did not agree with his opinion.

    I am a Pennsylvania resident who goes to work everyday and I pay my taxes to help keep this system running smoothly. Meanwhile, the ex-wife is remarried and living out of state and I would like to know whether she pays any taxes to Pennsylvania? Seems to me, if she wants to keep him in jail, she should move back to the area and help pay for his upkeep instead of retaining lawyers to intervene on everything Mr. Chadwick does or attempts to do. I understand her attorneys have run up over a million dollars in attorney fees that they expect Mr. Chadwick to pay. Why don’t they make the ex-wife pay her own attorney fees since they work for her? I had to pay my own attorney fees when I got divorced, didn’t you?

    Perhaps the ex-Mrs. Chadwick wants to keep Mr. Chadwick behind bars because she has the money and doesn’t want to share with Mr. Chadwick. From what I understand, it was his money when she married him so why should he have to give her half when she did nothing to earn it. Could that be why all the judges and lawyers bow to her wishes???

    Something to think about, huh?

    Let him out; it’s the right thing to do.

  13. Jack says:

    “This guy is not in jail for being unable to pay a debt. This guy is in jail for saying “Ha ha, look at me … I am perfectly able to pay my debt, but SCREW YOU judge, I refuse to do so!!!” That’s different, and he deserves to be in jail. Otherwise, asset protection lawyers (myself included) will help everyone who can afford to pay our fees avoid all their debts, leaving honest people to get screwed. That would not be good. But this case is a good outcome and good for society.”

    Posted by: Mike at August 22, 2007 03:02 AM

    But isn’t that what the common criminal is saying also, not just to the judge but to society as a whole. The point: he gets a trial. How do you claim to be a lawyer and reconcile this case with a criminal slimeball who can kill & get 7 years while this guy rots for 13? Ever hear of proportionality of punishment? Be real, if this guy goes to jail because he didn’t use you as an asset attorney… then you should be in the next cell for doing him one step better -on multiple counts- for every file in your cabinet.

  14. Lesa Dyer Kitching says:

    Does this count even if his ex-wife was my rotten neighbor for seven years (2000-2007) of hell? People know she and her new husband caused misery to me, my family other neighbors and the town we live. Ive posted this before and sent all the information in, regarding Barbara Applegate Vs. Carl, Lesa, and Adam Kitching to Beatty’s Lawyer. Does the public want to know what she sued us for? Christmas lights, hanging red Christmas bows on our fence, saying we stold her land the list goes on and on. She used the Thomaston PD and Rockland District and Superior Court as a means of manipulation in hopes she would rule us, get us to move, put us in jail and wanted MONEY! We have lived in Thomaston for 26 years and NEVER had our land or our being good town citizens ever questioned or damned as such Applegate and Frazer has done to us. Her false alligations toward us did her and her husband in. Her many attempts to have the police arrest us on the spot for hanging red Christmas bows on our fence, our outside light she said was “chasing her through the house,” Applegate stated my family and I caused her irreversible emotional damage. Every time it was time for Court, Barbara Applegate would never show. She stated…”I didn’t get my papers, and I didn’t pick my mail up!” Lies. She used the Judicial Systems,Lawyers and Police to turn them against us and my family and I looked like wicked people. However the town, the Police and our excellent Lawyer figured Applegate and her odd Husband out. In October of 2003 because of the strange behavior of Applegate, Fraser and then (suing us for things that belong in a good joke book), we were concerned about our well-being. One day my neighbor brought over a Bangor Daily Newspaper and Applgates name was in it in regard to a long ongoing nasty divorce case to her husband H.Beatty Chadwick. Next I contacted Beatty ‘s Lawyer to get permission to write him and explained my reasons. In October of 2003 through the mail my husband, and I wrote Mr.Chadwick. He helped us so much giving us advice and emotional support while we were going through that bad time. We have been writing back in forth ever since…to date January 2008. We have never met Beatty but we have found him to be a wonderful warm, kind, and caring person. My husband and I want to meet him in person and we’d like to scream out to the world and tell them our horror story about “OUR NEIGHBORS FROM HELL!” I’d also like to yell out ‘PLEASE FREE BEATTY!” I’m praying everyday for Beatty, we would like to go meet him, but for the past 13 years my husband has battled cancer and other medical problems. I could try traveling to the PA by myself, but finances and I can’t leave my husband alone. These are the things that hold us back from seeing our dear friend who we love so much who is rotting away in Jail because the Judges have thrown away the key. I only wish a miracle would happen to see H.Beatty Chadwick get freed it’s up to GOD now, he is above all Judges. Hopefully 2008 will be the year Beatty gets his freedom. Oh and Barbara and Howard are no longer our neighbors, they knew their EVIL GAMES couldn’t go on any more…so now their in a new playground call Bristol Maine looking for victims to bully and make their lives hell. Anyone who read this and could share some ideas to help us and Beatty we’d love to hear from you.

    Carl and Lesa Kitching

    Thomaston, Maine

    azizeh2006@yahoo.com

  15. Clifford Krause says:

    If someone is in jail for 12 years (or in fact, 12 minutes, or 12 seconds), why shouldn’t they have the right to a jury trial and due process? Under Civil Contempt, they have no such rights.

    If Mr. Chadwick had the money, where is it? Why doesn’t the court simply take it, as they have the power to do?

    As I recall, in this particular case, a panel of 3 former Pennsylvania judges did a study and found Mr. Chadwick did not in fact have the money. This was ignored by the court.

    Innocent unless proven guilty has been turned upside down in America’s Civil system.

    Very troubling indeed. America has the world’s highest rate of incarceration. Higher than Iran, higher than China.

    Could you imagine the uproar if Mr. Chadwick was in fact Mrs. Chadwick?

    I think both Messrs. Hoffman and Alito need to experience jail time without due process before making any further decisions on the lives of Americans.

  16. Kevin Park says:

    This might as well be a court of the 3rd Reich, this is ultimate Fascism They jail the man without any due process, the right to a trial by jury.

    It is the best example there is of the abuse of judical power in the good ole usa. They say he is supposed to prove he doesn’t have the money? They need to prove he has the money! The Burden of proof is on them to prove he has the money, which they cannot do.

    This is good proof of how the American Justice system a joke, which the Family Court system is!

    These judges are nothing but absolute tyrants.

    Obviously, they fear the jury trial, no jury would put up with this Bull Crap!

  17. Lesa Dyer Kitching says:

    ANYONE WHO WANTs to buy A ‘FREE BEATTY CHADWICK,’ BUMPER STICKER GO TO MY ZAZZLE ADDRESS. http://www.zazzle.com/ladk123

    thanks! Lesa