Ain't that a shame

The Ninth Circuit rendered an interesting (non-Blakely!) sentencing decision on Monday: in US v. Gementera, Ninth Circuit Judge Diarmuid O'Scannlain (joined by Sixth Circuit Judge Eugene Siler Jr., sitting by designation) upheld a sentence by US District Judge Vaughn Walker which, as a condiction of supervised release, required convicted mail thief Gementera "to spend a day standing outside a post office wearing a signboard stating, 'I stole mail. This is my punishment.'"

The defendant argued that the "sandwich board condition violates the Sentencing Reform Act," as well as the First, Fifth, Eighth, and Fourteenth Amendments. In a wide-ranging opinion that broadly addresses theories of punishment and academic literature on shaming sanctions, Judge O'Scannlain rejected all of the defendant's complaints. Here's a key concluding paragraph:

[W]e hold that the condition imposed upon Gementera [is] reasonably related to the legitimate statutory objective of rehabilitation. In so holding, we are careful not to articulate a principle broader than that presented by the facts of this case. With care and specificity, the district court outlined a sensible logic underlying its conclusion that a set of conditions, including the signboard provision, but also including reintegrative provisions, would better promote this defendant’s rehabilitation and amendment of life than would a lengthier term of incarceration. By contrast, a per se rule that the mandatory public airing of one’s offense can never assist an offender to reassume his duty of obedience to the law would impose a narrow penological orthodoxy not contemplated by the Guidelines’ express approval of "any other condition [the district court] considers to be appropriate."

Ninth Circuit Judge Michael Hawkins filed a passionate dissent which asserted that "public humiliation or shaming has no proper place in our system of justice." The opinion cited this interesting article on the theory of shaming punishments, by Dan Markel.

The opinions in Gementera are thoughtful and provocative, and they cover both theortical, academic and caselaw highlights concerning shaming sanctions. I am already thinking about using the case in my sentencing class this fall, if only to break up the Blakely discussion. However, I cannot help but consider even this decision in the light of Blakely for two reasons:

(1) the concepts and doctrines of supervised release — which were created by the Sentencing Reform Act and are the focal point of debate in Gementera — are legal in doubt if the entire federal guidelines/SRA scheme is deemed unconstitutional after Blakely. (Recall, though, that the Ninth Circuit in Ameline decided that the unconstitutional portions of the guidelines were severable from the rest of the system);

(2) the opinions in Gementera reveal how thoughtful — and yet perhaps how indeterminate — appellate review of sentences can be when appeals courts are only required to explore "whether the sentencing judge imposed [a sentencing term] for permissible purposes, and ... whether [that term is] reasonably related to the purposes." Many urging a move to a true "guideline" system after Blakely contend that appellate review would still be viable and valuable within such a discretionary system. The opinions in Gementera could arguably support, and yet also arguably refute, claims about the value of appellate review within discretionary sentencing systems.