Grand jury witch hunts have targeted environmental and animal rights activists during the Green Scare and AETA^[1] prosecutions as well as water protectors and indigenous people at Standing Rock, and more recently were used to intimidate Stop Cop City activists before ultimately returning trumped-up RICO and domestic terrorism indictments against 61 activists. When the people rise up, grand juries are there to try to suppress their movements, sow distrust, and punish dissent.

The federal grand jury is one of the most powerful tools of political repression the government has at its disposal. Throughout its history, CLDC has supported, educated, and represented activists resisting unjust grand jury subpoenas. As repression against anyone daring to resist this fascist administration can only be expected to increase, it is worth revisiting the ways the government wields the power of grand juries.

The United States is one of the only countries in the world that still use grand juries, and only about half the states in the U.S. still use them for criminal prosecutions. Grand juries are secretive investigative bodies controlled by prosecutors and made up of people summoned to jury duty (often pulled from DMV and voter registration databases). In the federal system, between 16 to 23 grand jurors are empaneled, but only 12 are normally required for an indictment to issue (pretty good odds for a prosecutor to indict that ham sandwich — 12 out of 23 people to file felony charges).  According to the State, the purpose of a grand jury is to determine whether there is enough evidence to charge someone with a serious crime. However, the evidence presented is entirely controlled by the prosecution, behind closed doors. Defense lawyers are not present for grand jury testimony, nor are judges. The rules of evidence don’t apply, and prosecutors and grand jurors can essentially ask witnesses anything they want, whether or not it is relevant to a specific alleged crime. Grand juries are also a tool for the government to collect information on political movements to use against them.

In addition to using grand juries to intimidate, harass, and interrogate political activists, the government can also use the power of grand juries as a way to imprison people even when they would not otherwise have enough evidence to charge them with a crime. By serving grand jury subpoenas on activists who the government knows are unlikely to “cooperate” or testify against themselves or their comrades, aka “snitching,” it can then have people locked up for refusing to testify. The government has long done this through the use of civil contempt. Although much less common, the government is also increasingly wielding the weapon of criminal contempt to criminally charge those who refuse to testify after they have been found in civil contempt.

What is the difference between civil and criminal contempt?

Civil contempt is the traditional tool used by the courts when they want to coerce someone into testifying before a grand jury. If you are ordered by a court to testify before a grand jury and you refuse, the court can order you to be held in civil contempt, which means you will be incarcerated until you agree to testify. According to the law, you can only be held in civil contempt until your imprisonment is no longer coercive, and becomes punitive, or until the grand jury term expires (normally a max of 18 months but could be extended for 36), whichever is sooner.

Although it involves incarceration, civil contempt is not technically considered a criminal punishment, because its purpose is to coerce someone into complying with a court order — so the person being incarcerated can earn their release at any time by complying with the subpoena. As the saying goes, you hold the keys to your own jail cell, and if you agree to cooperate, you purge the civil contempt and will be freed. If continued incarceration serves no coercive purpose, there is no legal justification for continuing to hold someone. Civil contemnors are sometimes able to argue for their freedom (in what is called a “Grumbles” motion), by proving to the court that they will never cooperate with the grand jury subpoena, and their confinement is not coercive but is instead punitive.

Criminal contempt, in contrast, is a formal criminal charge for willfully disobeying a court order. There is nothing that legally prevents the government from following up a period of incarceration for civil contempt with an indictment for criminal contempt resulting from the very same refusal to testify. Someone may be held only in civil contempt and then released; may be charged with criminal contempt off the bat without being held in civil contempt; or may be held in civil contempt and then later also be charged with criminal contempt. Between civil and criminal contempt, the government has the power to incarcerate people for extended periods of time simply for refusing to answer questions.

There is also technically no maximum limit to how much prison time a defendant can be sentenced to for criminal contempt, although you are entitled to a jury trial before being sentenced to a period of over six months. Unlike civil contempt, your sentence for criminal contempt is explicitly punitive and you cannot be released by deciding to comply.

Fortunately, criminal contempt charges following civil contempt are rare in environmental and social justice movement cases. To our knowledge, the last time it occurred was in November 2010, when Utah animal rights activist Jordan Halliday was sentenced to ten months in federal prison for criminal contempt after he spent four months for civil contempt. Click here for more on Jordan’s case.

But the threat of criminal contempt is just one more repressive tool used by the government, through the power of the grand jury, to threaten, intimidate, and even imprison activists for their resistance to state power, even when they have not committed a crime. History has long demonstrated that when the people stand together against a repressive regime they are united in a way that makes us stronger and the state’s power weaker. It is more important than ever that political activists continue to resist tools of oppression wielded by this authoritarian government and refuse to bow our heads in subservience or let them divide our movements to our own detriment.

If you or someone you know receives a grand jury subpoena, reach out to CLDC for support. We’ve got your back. Click here for more resources on grand jury resistance.

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[1] AETA is the Animal Enterprise Terrorism Act — a federal law that was bought and paid for by animal-abusing industries.