When a defendant skips court-ordered jail time in Mississippi, is that civil or criminal contempt, and can the judge order them locked up right away?

Plain-English summary

A municipal court judge wrote in with a real-world sentencing problem: when a defendant misses a previously ordered schedule of jail incarceration (skipping a weekend in jail or failing to report to serve a sentence), is that civil contempt or criminal contempt, and can the court send the defendant straight to jail to make up the missed time?

The AG could not give a categorical answer. Whether a particular contempt is civil or criminal is what the Mississippi Supreme Court calls a mixed question of fact and law, and the AG by statute (§ 7-5-25) cannot make factual determinations by official opinion. So the AG laid out the framework and pointed the judge to controlling case law.

The framework comes from Donaldson v. Cotton, 336 So. 3d 1099 (Miss. 2022). The court has repeatedly noted that "[c]ontempts are neither wholly civil nor altogether criminal," and one act can have characteristics of both. The classification turns on the "primary purpose of the contempt order." The court looks at the character of the sanction, not the intent of the judge imposing it.

The Donaldson opinion lays it out plainly: if the primary purpose is to enforce the rights of private litigants or compliance with a court order, the contempt is civil. The contemnor can be jailed or fined for civil contempt, but must be released when they perform the required act. Criminal contempt is designed to punish past offenses and does not end when the contemnor complies. Conduct directed against the court's dignity and authority (the "in your face" disrespect contempt) is criminal.

For the practical jailing question, the AG pointed to Masonite Corp. v. International Woodworkers of America, AFL-CIO, 206 So. 2d 171, 179 (Miss. 1967). The Mississippi Supreme Court there said the court's power "to imprison in a civil contempt in order to coerce the performance of a decree is without limit because . . . the contemnor himself may end the sentence by performing the decree or by declaring his willingness to perform it." That is the famous "the contemnor carries the keys to the jailhouse in his own pocket" doctrine: there is no statutory or constitutional cap on civil contempt incarceration because compliance unlocks the cell.

So the answer to the judge: whether the missed jail time is civil or criminal contempt is a mixed question of fact and law the court itself must decide using the Donaldson primary-purpose test. The opinion adds, for the second question, the Masonite rule that the power to imprison for civil contempt to coerce performance "is without limit" because the contemnor can end the sentence by performing or declaring a willingness to perform.

What this means for you

If you are a Mississippi municipal, county, or circuit court judge sentencing for missed jail time

Under the opinion, whether the missed jail time is civil or criminal contempt is a mixed question of fact and law that you must determine; the AG cannot decide it by official opinion. The Donaldson framework the opinion quotes turns on the "primary purpose of the contempt order," focusing on "the character of the sanction itself and not the intent of the court." If the primary purpose is to enforce compliance, the contempt is civil, and the contemnor "must be relieved of the penalty when he performs the required act"; if it is to punish past offenses, it is criminal. For the coercive-imprisonment question, the opinion quotes Masonite that the power to imprison for civil contempt to coerce performance is "without limit."

If you are a defense attorney representing someone facing a court-ordered detention schedule

The opinion holds the civil/criminal classification turns on the primary purpose of the contempt order (Donaldson). Under the Donaldson language it quotes, a contemnor jailed for civil contempt "must be relieved of the penalty when he performs the required act," while criminal contempt penalties "do not end when the contemnor has complied." The opinion also quotes Masonite that civil-contempt imprisonment to coerce performance is "without limit" because the contemnor can end it by performing or declaring a willingness to perform.

If you are a defendant who has been ordered to serve scheduled jail time in Mississippi

The opinion describes contempt for failing to serve ordered jail time as potentially civil or criminal, a question the court decides. Under the Masonite rule it quotes, if the contempt is civil, the court's power to imprison to coerce performance is "without limit," because you can end the sentence by performing the order (here, serving the missed time) or declaring a willingness to perform it.

If you are a prosecutor

Under the opinion, the civil/criminal classification turns on the primary purpose of the contempt order (Donaldson), looking at the character of the sanction rather than the court's intent. Civil contempt is coercive, with the contemnor relieved of the penalty on performance; criminal contempt is punitive and does not end on compliance.

If you are a court administrator or jail administrator

The opinion distinguishes civil contempt (coercive; the contemnor "must be relieved of the penalty when he performs the required act," and the power to imprison to coerce performance is "without limit") from criminal contempt (punitive; the penalty "do[es] not end when the contemnor has complied with the court order").

Common questions

Q: Is failing to serve ordered jail time civil or criminal contempt?
A: The opinion holds that is a mixed question of fact and law the court must determine, and the AG cannot decide it by official opinion. The court applies the Donaldson "primary purpose" test, looking at the character of the sanction.

Q: How long can civil contempt incarceration last?
A: The opinion quotes Masonite Corp. (1967) that the power to imprison for civil contempt to coerce performance "is without limit because... the contemnor himself may end the sentence by performing the decree or by declaring his willingness to perform it."

Q: What is the difference between civil and criminal contempt under the opinion?
A: Quoting Donaldson, the opinion says if the primary purpose is to enforce private parties' rights or compliance with a court order, the contempt is civil and the contemnor "must be relieved of the penalty when he performs the required act"; criminal contempt penalties "are designed to punish for past offenses" and "do not end when the contemnor has complied."

Q: Why couldn't the AG just answer whether this is civil or criminal contempt?
A: The opinion explains that under § 7-5-25 the AG answers prospective questions of state law only and may not make factual determinations, and that classifying a particular contempt is a mixed question of fact and law outside that authority.

Q: Does this analysis apply to municipal courts?
A: The request came from a municipal court judge, and the opinion answers using the Mississippi Supreme Court's general contempt framework (Donaldson and Masonite) without limiting it to a particular court level.

Background and statutory framework

§ 7-5-25 limits the AG to questions of state law and prohibits factual determinations by official opinion. Mixed questions of fact and law (like classifying a particular contempt as civil or criminal) fall outside the AG's authority.

Mississippi contempt doctrine flows from common law and a body of Supreme Court decisions. The Donaldson v. Cotton, 336 So. 3d 1099 (Miss. 2022) framework is the current statement: classification turns on the primary purpose of the contempt order, looking at the character of the sanction rather than the judge's intent.

The Masonite Corp. v. International Woodworkers of America, AFL-CIO, 206 So. 2d 171 (Miss. 1967) "no limit" doctrine for civil contempt incarceration is the rule the opinion relies on for the second question. The contemnor's continued ability to comply (and thereby end the sanction) is the doctrinal hook the opinion quotes for the open-ended duration. The opinion does not cite or apply any other authority beyond Donaldson, Masonite, and § 7-5-25.

Citations

• Miss. Code Ann. § 7-5-25 (limits on AG opinion authority)
• Donaldson v. Cotton, 336 So. 3d 1099 (Miss. 2022) (civil/criminal contempt framework)
• Masonite Corp. v. International Woodworkers of America, AFL-CIO, 206 So. 2d 171 (Miss. 1967) (civil contempt incarceration without time limit)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2023/01/A.Nowak-January-24-2023-Authority-to-Incarcerate-for-Failure-to-Comply-with-Court-Ordered-Detention.pdf

Original opinion text

January 24, 2023
The Honorable Anthony Nowak
Municipal Court Judge, City of Hernando
Post Office Box 346
Hernando, Mississippi 38632
Re:

Authority to Incarcerate for Failure to Comply with Court Ordered Detention

Dear Judge Nowak:
The Office of the Attorney General has received your request for an official opinion.

Questions Presented

1. Does a defendant's failure to comply with a previously ordered schedule of incarceration
   constitute an act of civil contempt or would it be constructive criminal contempt?
2. If the response to question one is that it is a matter of civil contempt, may the court then
   immediately incarcerate the defendant for the period of jail time he/she failed to serve?
   Brief Response
3. The purpose of civil contempt is to compel compliance with a court's orders, admonitions,
   and instructions, while the purpose of criminal contempt is to punish. Whether a certain
   matter constitutes civil or criminal contempt is a mixed question of fact and law that this
   office may not determine by official opinion.
4. Even though we cannot answer your second question definitively because it requires a
   determination of the type of contempt, the Mississippi Supreme Court has said, "[t]he
   power of the court to imprison in a civil contempt in order to coerce the performance of a
   decree is without limit because, as already said, the contemnor himself may end the
   sentence by performing the decree or by declaring his willingness to perform it, -and being
   released he proceeds so to do with costs, if within his power." Masonite Corp. v.
   International Woodworkers of America, AFL-CIO, 206 So. 2d 171, 179 (Miss. 1967).

Applicable Law and Discussion
Pursuant to Mississippi Code Annotated Section 7-5-25, this office is authorized to answer
prospective questions of state law only and is not permitted to make factual determinations.
Because your first question is a mixed question of fact and law, we are unable to answer it by
official opinion. For general guidance, the Mississippi Supreme Court has repeatedly held that
"[c]ontempts are neither wholly civil nor altogether criminal. And 'it may not always be easy to
classify a particular act as belonging to either one of these two classes. It may partake of the
characteristics of both.'" Donaldson v. Cotton, 336 So. 3d 1099, 1109 (Miss. 2022) (internal
citations omitted). The type of contempt is determined "by looking at the primary purpose of the
contempt order. . . ." Id. at 1110 (internal citations and quotation marks omitted). In determining
a contempt's purpose, the court "should focus on the character of the sanction itself and not the
intent of the court imposing the sanction." Id. at 1108 (internal citations and quotation marks
omitted). The court further stated:
If the primary purpose is to enforce the rights of private party litigants or to enforce
compliance with a court order, the contempt is civil. One may be jailed or fined for
civil contempt[;] however, the contemnor must be relieved of the penalty when he
performs the required act. Criminal contempt penalties are designed to punish for
past offenses[,] and they do not end when the contemnor has complied with the
court order. Conduct directed against the court's dignity and authority is criminal
contempt. It involves an act "which tends to bring the court into disrepute or
disrespect."
Id. (internal citations omitted). Ultimately, "[t]he purpose of civil contempt is to compel
compliance with the court's orders, admonitions, and instructions, while the purpose of criminal
contempt is to punish." Id. at 1109 (internal citations and quotation marks omitted). Again, the
type of contempt is a mixed question of fact and law that the court must determine on its own.
While we are unable by official opinion to determine whether the contempt about which you ask
is civil or criminal, we refer you to the Mississippi Supreme Court's position regarding
imprisonment in civil contempt: "[t]he power of the court to imprison in a civil contempt in order
to coerce the performance of a decree is without limit because, as already said, the contemnor
himself may end the sentence by performing the decree or by declaring his willingness to perform
it, -and being released he proceeds so to do with costs, if within his power." Masonite Corp., 206
So. 2d 171, 179 (Miss. 1967).
If this office may be of any further assistance to you, please do not hesitate to contact us.
Sincerely,
LYNN FITCH, ATTORNEY GENERAL
By:

/s/ Abigail C. Overby
Abigail C. Overby
Special Assistant Attorney General