"The petitioner . . . carries the key of his prison in his own pocket. He can come out, when he will, by making terms with the court that sent him there. But if he chooses to struggle for a triumph, if nothing will content him but a clean victory or a clean defeat, he cannot expect us to aid him. Our duties are of a widely different kind. They consist in discouraging, as much as in us lies, all such contests with the legal authorities of the country."
So a judge once wrote to justify keeping a man named Passmore Williamson in jail indefinitely, for disobeying an order of the court. least acentury later, these same words describe the frustrating stalemate that has kept Jacqueline Louise Bouknight the Baltimore City Detention Center for nearly seven years, though she is charged with no crime.
Ms. Bouknight is in jail because she has disobeyed a court order to produce her missing son, Maurice, who would now be 8 -- if he is still alive.
It is a case in which the staking out of legal strategies has contributed to delays, making conciliation precarious at best and impossible at worst. It pits the juvenile court's vital interest in a child's safety against his mother's constitutional rights not to be deprived of her liberty without due process of law, and against cruel and unusual punishment.
Because he had been abused at least twice while in her care before he was a year old, the city Department of Social Services was given custody of Maurice, and put him in foster care. A juvenile master later returned the child to Ms. Bouknight, but social workers lost track of him. A missing-persons investigation turned to a homicide inquiry by police, and some authorities to this day believe Ms. Bouknight killed her son.
In court recently, she insisted again that she had given her child to a friend to keep him from going back to foster care, the setting in which she had grown up. Attorneys in the case, and at least one police detective, say they believe her.
They are trying to establish whether Ms. Bouknight knows where her child is now. She claims she does not.
The case went all the way to the U.S. Supreme Court on the issue of whether Ms. Bouknight could be forced to produce the child when to do so might be incriminating, and thus a violation of her Fifth Amendment rights. The highest court in the land ruled that the court could continue to hold her in contempt.
Now, David B. Mitchell, the Baltimore City juvenile court judge who jailed Ms. Bouknight April 28, 1988, must decide whether to grant motions to release Ms. Bouknight be cause she cannot or (( will not lead investigators to Maurice.
For the next three months, the judge has stripped the Baltimore City Department of Social Services of custody of the boy. In return, Ms. Bouknight agreed once again to begin discussions with the court about where Maurice might be found.
Squarely in the middle of this tempest sits Judge Mitchell, on a perch no jurist would envy.
"Contumacy often strikes at the most vulnerable and human qualities of a judge's temperament," then-U.S. Supreme Court Justice Harry A. Blackmun wrote in a 1994 opinion on the contempt power -- referring to the sometimes maddening stubbornness of people who defy courts. Since the case of Passmore Williamson, people have gone to jail regularly rather -- than obey court orders. They have been witnesses reluctant to testify; reporters who refuse to reveal sources. Those who will not give up the whereabouts of a child have tended to stay locked up longest, particularly if the child is believed to be in danger.
So-called civil contempt powers allow judges to hold those who defy them indefinitely, until they give information or show they cannot. As long as the contempt order appears "coercive" -- that that confining the person has a hope of wearing him or her down -- the person can stay imprisoned without being charged with anything.
But once it is determined that jail accomplishes nothing more than punishment, the court must either release the person or find him in criminal contempt of court, which requires a finding of guilt and a definite sentence like any other conviction.
After nearly seven years, Judge Mitchell's decision therefore might sound easy: How could a woman who has held out this long possibly blink now?
But the length of confinement does not, by itself, determine legally the point at which one "wins" a contempt battle.
When Dr. Elizabeth Morgan, a Washington, D.C., plastic surgeon, spent 25 months in jail rather than reveal the whereabouts of her young daughter, Hilary, her supporters persuaded Congress to pass a law limiting to one year the time served for civil contempt in the district. Dr. Morgan claimed that her former husband, Dr. Eric Foretich, had been abusing the girl, and she refused to allow his court-ordered overnight visits with her.