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November 30, 2005

The real shame about shaming punishments

Because Dan Markel was involved in the Gementera shaming case (background here and here and here), I understand why he viewed the Supreme Court's denial of cert to be a shame.  But, after reading this AP story and this CNN story about the cert denial, I think the real shame is that a little case like Gementera gets so much attention from the media and others, while issues of much broader sentencing significance — like the imposition of a mandatory life sentence on a small-time drug user or the Supreme Court's failure to address Booker's retroactivity or the continued reliance on uncharged (and unproven?) conduct to increase sentences or the prospect of new (irresponsible?) crime legislation — get so little attention.

What really got me worked up was a quote at the end of the AP story:

Gementera's attorney, Arthur K. Wachtel, said he was disappointed by the Supreme Court's decision to dismiss the case without comment. "It's pretty rare that the Supreme Court has an opportunity to review a case involving appropriate punishment," Wachtel said.

HUH?!?!?  Even before Blakely and Booker, SCOTUS surely got hundreds (perhaps thousands) of cert petitions each year asking them to "review a case involving appropriate punishment."  In the wake of Blakely and Booker, the Court now likely receives hundreds (perhaps thousands) of such petitions each month.  But, because so little attention is paid to these cases, even some criminal defense lawyers are unaware of the many sad realities of our criminal justice system.

November 30, 2005 at 11:48 AM | Permalink


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Respectfully, your "huh" seems a bit misplaced. Taken in context, isn't it most reasonable to assume that Wachtel, rather than being oblivious to "sad realities," meant only that the Court doesn't often get cases dealing with appropriate FORMS of punishment -- the issue presented by his client's case, rather than appropriate punishments generally -- ?

Posted by: anon | Nov 30, 2005 1:24:10 PM

Reasonable point, anon, though aren't many capital cases (such as Roper) about appropriate forms of punishment? And how about all the cases challenging particular terms of supervised release or probation/parole? Or challenging residency restrictions or felon disenfranchisement or other collateral consequences? Or challenging the conditions of confinement in prison?

Thus, even his is quote is amended as you suggest, I would still answer with "Huh?"

Now, I suppose it is accurate to say the Supreme Court rarely has a chance to review a shaming punishment, but that's in part because such punishments are so rare (despite the attention such punishments receive). And the very rarity of shaming punishment serves to reinforce my point about the undue attention given to small (and silly?) issues, when there are much bigger issues that should be the subject of everyone's concern.

Posted by: Doug B. | Nov 30, 2005 1:37:05 PM

What world is this lawyer living in? Rare?
"Huh?" is right.

Posted by: Y. W. | Nov 30, 2005 9:39:18 PM

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