By Jonathan Turley
Sunday, September 18, 2005
Shawn Gementera must have known that he would face some kind of punishment after a police officer nabbed him and a friend in the act of stealing letters from mailboxes along San Francisco's Fulton Street four years ago. While jail or probation might have crossed Gementera's mind, U.S. District Judge Vaughn R. Walker had a more creative idea. Walker sentenced Gementera to stand outside a post office while wearing a sign that read: "I stole mail. This is my punishment." Where the judge saw a novel way of conveying society displeasure with mail theft, Gementera's lawyers saw a violation of the Constitution's ban on "cruel and unusual punishment." The U.S. Court of Appeals for the 9th Circuit decided, however, that while the humiliating sentence might be unusual, it wasn't cruel.
Lately it hasn't been all that unusual either. The Gementera sentence -- taken last month to the Supreme Court -- is one of a growing number of "creative punishments" being handed down across the country by judges who want to use shame or humiliation to deter people from committing further offenses. As clever as these punishments might seem, judges are not chosen to serve as parents trying to set consequences for wayward children. Law demands not just consequences for wrongdoing, but consistent consequences. Otherwise citizens are left wondering whether they will receive a standard punishment or one improvised to suit a judge's whim.
Shaming punishments were common in the United States before the advent of model criminal codes and the development of constitutional limitations in sentencing. While the scarlet letter made famous by Nathaniel Hawthorne's classic novel about adultery is the best known, it was not the most common. Early sentences often required offenders to endure public displays of guilt by wearing signs or being pilloried in common areas. Adulterers were often required to carry heavy stones around a church or town.
Most shaming punishments were abandoned as either ineffective or unconstitutional. Modern law values the consistent imposition of punishment and frowns upon judges who personally tailor new forms of punishment for particular defendants. What is most dangerous about this recent trend is that, in the name of reforming citizens, judges will impose their own quirky brand of justice by ordering citizens to parade, worship or even marry. Consider a few examples, all from state or local courts:
· In Kentucky, Judge Michael Caperton recently allowed drug and alcohol offenders to skip drug counseling if they agreed to go to 10 church services. A pastor, like a divinely ordained probation officer, signs off on the completion of this obligation.
· In Texas in 2003, Judge Buddie Hahn gave an abusive father a choice between spending 30 nights in jail or 30 nights sleeping in the doghouse where prosecutors alleged the man had forced his 11-year-old stepson to sleep.
· In Georgia last year, Judge Sidney Nation suspended almost all of Brenton Jay Raffensperger's seven-year sentence for cocaine possession and driving under the influence in exchange for his promise to buy a casket and keep it in his home to remind him of the costs of drug addiction.
· In Ohio, a municipal judge, Michael Cicconetti, cut a 120-day jail sentence down to 45 days for two teens who, on Christmas Eve 2002, had defaced a statue of Jesus they stole from a church's nativity scene. In exchange, the pair had to deliver a new statue to the church and march through town with a donkey and a sign reading "Sorry for the Jackass Offense."
· In North Carolina in 2002, Judge James Honeycutt ordered four young offenders who broke into a school and did $60,000 in damage to wear signs around their necks in public that read "I AM A JUVENILE CRIMINAL." One, a 14-year-old girl, appealed and Honeycutt was reversed.
In a newspaper interview last year, Georgia Judge Rusty Carlisle said he often imposes shaming punishments when defendants seem insufficiently chastened. He cited an early case: a person accused of littering whom Carlisle felt was "kind of cocky." So the judge gave him a cup and a butter knife and told him to scrape the gum off the bottoms of the court benches as the judge and others watched.
There's no evidence that creative sentences work better at deterring crime than other punishments. Yet public punishments can be harshest on the most commonly targeted and vulnerable group -- young people.
The recent penchant for customized punishments also undermines efforts to make criminal sentencing more uniform. Creative punishments often reflect the cultural character of a state. While an abusive father was given the choice of sleeping in a doghouse in Texas, domestic abusers were forced to attend meditation classes with herbal teas and scented candles in Santa Fe, N.M.
As elected officials, state judges know that few things please the public as much as hoisting a wretch in public. One Texas state judge, Ted Poe, was known as "The King of Shame" for his signature use of punishments like shoveling manure. Poe said that he liked to humiliate people because "[t]he people I see have too good a self-esteem." Poe was so popular for what he called "Poe-tic Justice" that he literally shamed himself right into Congress and is now serving as a member of the House of Representatives.
In Memphis, Judge Joe Brown became famous for allowing victims of burglaries to go to the homes of the thieves and take something of equal value. When asked about his authority to order judicially supervised burglaries, Brown explained with a hint of amazement that "under Tennessee law it appears to be legal." Brown eventually took his brand of justice to television as the host of his own syndicated court show.
What distinguishes the Gementera case is that it was a federal judge who imposed the shaming punishment. Federal judges have long been viewed as insulated from this trend -- until now. And Judge Walker was upheld by the 9th Circuit Court of Appeals, which noted that "in comparison with the reality of the modern prison, we simply have no reason to conclude that the sanction . . . exceeds the bounds of 'civilized standards' or other 'evolving standards of decency that mark the progress of a maturing society.' "
But the 9th Circuit Court's ruling is more a devolution of standards. These novel sentences threaten the very foundation of a legal system by allowing arbitrary and impulsive decisions by judges. A judge is allowed to weigh guilt and impose sentences. Yet it is the legislature that should define the forms and range of permissible punishment for a crime. That's why it was popular but wrong when North Carolina Judge Marcia Morey recently allowed speeders to send their fines to a charity for hurricane victims rather than to the state. Similarly, Wisconsin Judge Scott Woldt recently ordered Sharon Rosenthal, who stole money from the labor union where she was treasurer, to donate her family's Green Bay Packers seats to his preferred charity, the Make-A-Wish Foundation. Such measures turn courts cases into private charity pledge drives.
As judges vie for notoriety through sentencing, citizens will be increasingly uncertain about the consequences of their actions. Will it be probation or humiliation? Once you allow judges to indulge their own punitive fantasies, defendants become their personal playthings -- freaks on a leash to be paraded at the judges' pleasure.
These cases betray a disturbing convergence of entertainment and justice in the United States. There has been an explosion of faux-court programs like "Judge Judy," "Judge Hatchett" and "Judge Joe Brown." For anyone who knows and values the legal system, these shows are vulgar caricatures that have no more relation to real law than TV's Wrestlemania has to real wrestling. Yet it appears that some judges long for those Judge Judy moments when they can hand out their own idiosyncratic forms of justice.
If states and Congress do not act, we may find ourselves with hundreds of Judge Browns imposing sitcom justice with real citizens as their walk-on characters. In the meantime, as shaming devices become commonplace and therefore less shameful, and as there are more people walking around wearing special signs, jurists will need to dream up new, more demeaning punishments to make an impression on defendants -- leaving both citizens and justice at risk.
The Supreme Court could help reverse this shameful trend with the Gementera case. Of course, even if it does, Judge Walker is unlikely to be seen standing outside the San Francisco courthouse wearing a sandwich board proclaiming "I Was Reversed by the Supreme Court" or "I Imposed Cruel and Unusual Punishment." In some ways, that's a real shame.
Author's e-mail: firstname.lastname@example.org
Jonathan Turley is a professor of public interest law at George Washington University.