Split Created: What crime is neither a felony nor a misdemeanor?

Per United States v. Cohn, 2009 WL 3110775 (11th Cir. Sept. 30, 2009)

Criminal contempt. In a well-reasoned and short per curiam, the Eleventh declares that criminal contempt, 18 U.S.C. § 401, is a new category of crime, neither felony nor misdemeanor. The new category: sui generis.

Equity certainly favors the Eleventh's position, but the law does not.

Here's the statutory scheme. 18 U.S.C. § 401 criminalizes contempt of court (misbehavior, disobediance, resistance, et c.), but does not provide a maximum punishment or classification for the offense. 18 U.S.C. § 3559(a) states that an unclassified offense with the potential for life imprisonment is a Class A felony. So it would seem like criminal conspiracy is a class A felony, since it lacks a maximum term.

The problem is that contempts can be trivial, whereas Class A felonies are always serious. So the Eleventh hangs its hat on stray Supreme Court language declaring the offense "sui generis," and affirmatively holds (for what I imagine is the first time in recent history) that a crime can be neither a felony nor a misdemeanor.

The CA11 splits from the CA9, the only other circuit to have confronted the classification of contempt in a published opinion. The Ninth Circuit had previously held that contempt was a class A misdemeanor based on the Guideline term for obstruction of justice, the most analogous offense. As to this, the Eleventh reasons the Ninth's "method does not address how to classify criminal contempt if a sufficiently analogous guideline is absent. More importantly, maximum penalties are established by statute, not the Sentencing Guidelines."

Much though I like this result (and the opinion), I have to disagree with the reasoning. Congress gets to create and classify crimes. If the legislature decided to make entering a quarantine area without permission (42 U.S.C. §271(a)) a Class A felony, it could do so and courts would be obligated to comply despite stray Supreme Court language stating that regulatory offenses are generally minor.

Here, contempt clearly falls within 18 U.S.C. § 3559(a)'s definition of Class A felony, and there is no statutory exception. The best way to achieve equity, while not overly stretching the law, would be for courts to rely on the factors in 18 U.S.C. § 3553 to account for trivial contempts, and for Congress to fix the problem, i.e., itself declare contempt sui generis.