Published September 26, 2006
He 'refuses' to produce $2.5 million that may not exist. If he were in the federal system, the maximum penalty for contempt would be 18 months. As it is, Chadwick -- who has never been convicted of a crime or faced a jury -- is indefinitely imprisoned without possibility of parole.
Has Chadwick fallen through a crack in the legal system or is he proof that family courts are out-of-control, especially regarding 'contempt of court' power?
The 'legal crack' theory immediately confronts a problem. According to the Chicago Tribune, the case has produced a "dozen pleas to the county courts, nine to state appeals courts, nine to the Pennsylvania Supreme Court, six to the nearby federal court, four to the Third Circuit Court of Appeals and two to the U.S. Supreme Court."
That's one massive and meticulously sustained 'crack.'
The 'out-of-control' theory immediately confronts a question: what act of contempt could possibly elicit such draconian punishment?
The answer begins in 1977 when Chadwick (then 39 years old) married the former Barbara Jean Crowther. She filed for divorce in late 1992. Depending on which account is credited, Chadwick is either the victim of a vindictive wife or he is domineering husband who vowed that his wife would never see a penny.
In 1994, Barbara Chadwick informed the court that her husband had wired $2.5 million out of the country. The judge ordered Chadwick to retrieve the funds and place them in a court-controlled account until the divorce was settled. Chadwick claimed that most of the money had been lost in a foreign business deal gone bad; however, a small fraction of the money showed up in a U.S. bank under Chadwick's name. The judge ordered his imprisonment on civil contempt until the funds were produced.
In civil proceedings, such as divorce, a charge of contempt usually occurs in two circumstances. First, a failure to attend court proceedings despite a subpoena. Second, the failure to comply with a court order. If imprisonment is ordered, the 'sentence' can last as long as the disobedience continues or until the 'contempt limitation' of the particular court system is reached; some courts have no limit. Since the prisoner is considered to 'hold the key' to his own freedom, his constitutional right to due process is not seen to apply.
Chadwick was imprisoned in April 1995.
Traditionally, contempt of court 'sentences' continue only as long as there is a reasonable expectation of coercing compliance. Otherwise, the imprisonment becomes a punishment, which is a criminal sanction beyond the authority of civil courts.
A 1974 New Jersey Supreme Court case finding (Catena v. Seidl) is often cited regarding civil contempt. "It is abhorrent to our concept of personal freedom that the process of civil contempt can be used to jail a person indefinitely, possibly for life, even though he or she refuses to comply with the courts order….[C]ontinued imprisonment may reach a point where it becomes more punitive than coercive and thereby defeats the purpose of the commitment."
In 2002, U.S. District Court Judge Norma Shapiro agreed with New Jersey and ordered Chadwick's release on the grounds that continued imprisonment would not produce the money. Judge Samuel Alito -- now of the Supreme Court but then with the Third U.S. Circuit Court of Appeals -- overturned Shapiro and found instead that Chadwick's incarceration should continue as long as the courts believed he was able to pay.
His ability to do so was called into question last year. A. Leo Sereni, a former president judge in Pennsylvania, was appointed to track Chadwick's money. Eighteen months and two accounting firms later, Sereni reported no trace beyond what had been discovered a decade before. Money had been transferred to Europe and a small fraction had reappeared in U.S. accounts. Sereni concluded, "most of it...nowhere."
He recommended Chadwick's release, stating, "My God -- if he had stolen $2 million, he would have been out a couple of years ago." In February 2006, the court ruled that Sereni had "overstepped his bounds," and Chadwick's incarceration continued.
The ex-wife's attorney, to whom much of any materializing money would go, has produced recent correspondence from Chadwick to a friend about setting up a numbered bank account in the Cayman Islands. Chadwick claims such an account would merely protect assets -- e.g. his future social security checks.
At this point…does it matter?
Chadwick has been imprisoned for over a decade without trial or being found guilty of a crime. That fact alone should bring into question whether imprisoning people for contempt is an appropriate court power.
The power is rooted in British common law.
Legal systems that do not share a common law background, which constitute the majority of countries in the world, do not typically grant this authority to a judge.
Indeed, the ability to summarily imprison is one of the reasons that the U.S. judiciary is so politically powerful. It allows even civil court judges to bypass the Constitution.
I believe that the power of imprisonment without due process should be stripped from judges. At minimum, any person imprisoned on contempt should -- at some well-defined point -- have the right to stand before a jury that considers two questions of fact. Is the person able to comply? Does a continuing sanction serve a legally valid purpose?
Ask yourself: what purpose does Chadwick's imprisonment serve?
Wendy McElroy is the editor of ifeminists.com and a research fellow for The Independent Institute in Oakland, Calif. She is the author and editor of many books and articles, including the new book, "Liberty for Women: Freedom and Feminism in the 21st Century" (Ivan R. Dee/Independent Institute, 2002). She lives with her husband in Canada.