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784. Least Possible Power Rule

In a contempt proceeding, the court must exercise the least possible power to obtain the desired result. This rule requires that the trial judge expressly consider the feasibility of obtaining acceptable relief through the imposition of civil contempt before resorting to criminal contempt. Although such a consideration is required, the judge need not in fact impose civil penalties prior to the imposition of criminal penalties. See United States v. Wilson, 421 U.S. 309 (1975); Shillitani v. United States, 384 U.S. 364 (1966); NLRB v. A-Plus Roofing, Inc., 39 F.3d 1410 (9th Cir. 1994); Baker v. Eisenstadt, 456 F.2d 382 (1st Cir.), cert. denied, 409 U.S. 846 (1972). Furthermore, this rule requires that summary punishment be reserved for "exceptional circumstances." Harris v. United States, 382 U.S. 162, 164 (1965). But see United States v. Wilson, 421 U.S. 309.

[cited in JM 9-39.000]

Updated January 21, 2020