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September 6, 2013

New commentary calls "creative" shaming punishments "terrible" (on curious grounds)

Dameron.png.CROP.rectangle3-largeSlate's crime correspondent, Justin Peters, has this notable new commentary headlined "Dear Judges: Your Creative Punishments Are Hilarious and Also Terrible. Please Stop."  I will reprint below the commentary in full (with original links also reproduced) because I always find these kinds of (purportedly rightous) attacks on creative shaming sentences puzzling and curious:

If there’s one thing Americans love, other than the troubled-restaurant-turnaround stylings of Gordon Ramsay, it’s judges who impose “stunt” sentences on defendants. These sorts of stories crop up a couple of times per year, and they always seem to make the “lighter side” segment on the 10:00 news.  The most recent example of this comes from Cleveland, where Judge Pinkey Carr sentenced a man named Richard Dameron, who threatened a police officer, to stand outside a police station wearing a sign that read “I apologize to Officer Simone and all police officers for being an idiot calling 911 threatening to kill you. I'm sorry and it will never happen again.” To give the sentence a personal touch, the judge hand-lettered the sign herself.  These sorts of “Oh, snap!” sentences are undeniably funny.  But are they actually legal?  Do public humiliations like these constitute cruel and unusual punishments?

Legislatures generally give judges a lot of latitude to freestyle from the bench, as long as they can make the case that their funny punishments serve some sort of rehabilitative purpose.  Federal courts have supported creative sentencing, too. In 2004’s United States v. Gementera, the Ninth Circuit ruled that a district court judge was well within his rights to sentence mail thief Shawn Gementera to, among other things, stand outside a postal facility wearing a sign that read “I stole mail; this is my punishment.” In his opinion, Judge Diarmuid O’Scannlain (!) determined that “the district court imposed the condition for the stated and legitimate statutory purpose of rehabilitation and, to a lesser extent, for general deterrence and for the protection of the public.”

So these sentences, although unusual, are not seen to be unconstitutionally cruel.  And they clearly stem from valid frustration with America’s imperfect criminal justice system, which sends convicted criminals into dangerously overcrowded prisons, fails to rehabilitate them, and then releases them back into society, where they are apt to offend again.  It’s a frustrating cycle, and so you can understand why, rather than send an abusive father to prison, a judge might think it more effective to have him sleep in the same doghouse where he allegedly used to banish his son, or to sentence a burglar to have something valuable stolen from his house.  Call it poetic justice.  Call it common sense.

But as George Washington University law professor Jonathan Turley has written, poetic justice rarely has anything to do with legal justice.  The entire point of a code of laws is to move away from “common sense” justice and its attendant inconsistencies, and to professionalize the process by establishing a standardized list of crimes and punishments that’s valid in all jurisdictions.  The judiciary’s role is to interpret these laws and pass judgment on behalf of the state; judges are theoretically elected or appointed based on their supremely nuanced understanding of these laws, not based on their ability to hand-letter punitive signage.  This doesn’t mean that the system always works.  But it’s meant to ensure that, at the very least, the system proceeds with a measure of fairness and dignity.

Theatrical, cornpone deviations from this standard undermine the judicial system.  A sentencing hearing becomes less about the state passing judgment on a convicted criminal than an individual judge imposing her standards of right and wrong.  Our criminal justice system might not work very well.  But it ought to be fixed in the legislatures, not on an ad hoc basis by grandstanding judges who act as though they won their robes in a raffle. Public shaming is better suited for courtroom reality shows, which, indeed, is where one of stunt sentencing’s most famous practitioners — Judge Joe Brown — ended up. If that’s where Judge Pinkey Carr is bound, then I wish her well, and I hope she gets there soon, because her brand of homespun, alternative justice has no business in a real courtroom.

In short, this commentary recognizes that both the Constitution and legislatures permit shaming sanctions if and when, to quote the Ninth Circuit, they seek to serve the "stated and legitimate statutory purpose of rehabilitation and ... for general deterrence and for the protection of the public." In addition, this commentary seems to acknowledge that in many cases, the traditional punishment of locking someone in a cage often will not effectively or efficiently serve these purposes.  Nevertheless, apparently because a judge's purported role is to "to interpret [criminal] laws and pass judgment on behalf of the state" and because the criminal justice system is to proceed "with a measure of fairness and dignity," then creative shaming punishments somehow "undermine the judicial system." 

Huh?  For me this kind of argument and its fuzzy logic just does not compute.  Perhaps this is fundamentally because I see very little "fairness and dignity" coming from locking humans in cages, but it is also because there is anecdotal evidence that creative shaming sanctions may be significantly more effective than imprisonment in serving the express statutory sentencing purposes set forth by Congress and state legislatures. 

If and when data indicate creative sanctions are less effective than imprisonment at achieving public safety, I will be moved by the notion that such punishments are bad policy.  If and when Congress or state legislatures expressly prohibit shaming sactions because the people's representatives conclude such punishments "undermine the judicial system," then I will support claims they are unlawful.  Until such time, and especially because I also think our traditional punishments "might not work very well," I have a hard time being convinced by reactionary criticisms of seemingly reasonable efforts by seemingly well-meaning judges to try to make the criminal justice system they help administer work just a little better for all of society's benefit.

I sometimes think that what really explains these kinds of criticisms of creative shaming sanctions is the discomfort that the critic feels from having to see on full display and then think seriously about the many ugly realities of crime and punishment in our modern criminal justice systems.  When tens of thousands of defendants are sent away to prison every year in the United States, and thus effectively hidden away from public view (absent hunger strikes or suicides or other dramatic and harmful actions), those who do not regularly encounter many crime victims and/or criminal defendants need not think too much to the ugly modern realities of crime and punishment in our modern criminal justice systems.  But when a just few defendants are given creative shaming sanctions each year by seemingly well-meaning judges who are trying to improve the system, we all must confront the disconcerting reality that these kinds of punishment may actually be a significant improvement over the "traditional" status quo. 

I understand why the notion that creative shaming sanctions are a possible improvement over traditional punishment is a reality that could be deeply disconcerting to those who want to champion (and cling to) high-minded conceptions of the importance of "fairness and dignity" in our criminal justice system.  But attacking judges who are looking for novel sentencing alternatives which could be more effective and efficient than locking humans in cages is, in my view, an example of shooting the messenger because you do not like the real-world news being delivered through these kinds of punishments.

September 6, 2013 at 11:45 AM | Permalink


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I'm curious as to the backstory of these "creative" punishments. Clearly the judges have no problem sentencing people to the holes, since they do that the other 99.9% of the time. What's with these cases?

Is it that the judge is particularly badly inclined towards these defendants, and really want to stick it to them? Or perhaps they're well disposed and use this as a cover for an unusually light sentence? Or is it just a lark?

Posted by: Boffin | Sep 6, 2013 1:11:25 PM

Where is Prof. Dan Markel? This is his area of interest.

I have often repeated, the sole mature, proven and productive aim of the criminal law is incapacitation. The rest is either lawless or unfair. For example, general deterrence punishes the defendant for the speculative future crimes of people unknown to the defendant.

If judges want to innovate and conduct unauthorized experiments on human beings unable to give consent, they may be violating the Helsinki Agreement and international law. If they chose this course, they are obligated to collect data on outcomes, recidivism, cost of punishment, the cost of crimes committed while the defendant is on the street, perhaps in the dozens or hundreds.

I am guessing these penalties are variations on coddling. Criminals have markedly below average ability to feel shame. One variable of outcome measures should be if the criminal feels these sanctions are a joke, never mind the public.

Posted by: Supremacy Claus | Sep 7, 2013 12:05:35 AM

The guy in the picture. Do people see how heinous, disgusting he looks? Put him in the paper or especially on TV, and good looking women will be trying to get a date with him. So a creative penalty that makes the mass media could be highly rewarding. People will find that out, and try to do the same crime he did. So even extremely negative publicity, such as a conviction for being a serial killer, is a powerful aphrodisiac for females, thus potentially highly rewarding for the felon.

Posted by: Supremacy Claus | Sep 7, 2013 3:34:00 AM

There is no data -- and if there ever is, it will be next to useless. This type of thing happens very seldom (or it would not make the evening news). Thus, statistics can't be useful. "Anecdotal evidence" means no evidence.

Posted by: Anne | Sep 7, 2013 7:42:47 AM

Well, Mr. Claus, I don't see any reason You couldn't stand in the street with a confessional sign if you think it will help you get a date. :D

Posted by: Pete | Sep 7, 2013 12:14:20 PM

I don't know the answer. I know it is a crime to lie to a government official. However, it is not a crime for a government official to lie to the public. We are, after all, inhabiting the lawyer Twilight Zone.

So I make a sign.

I apologize to 5 police officers I beat up, and to the police mare I raped. It is always rape however much the mare enjoyed it, because the mare can never give consent.

I am on TV. Now small groups of young, good looking women are gathering, just staring at me, at the police stable, holding up this false sign.

Fact pattern for the law students, at Harvard Law only. Has a crime been committed? What is it called? What should be its penalty? Same facts, but the mare has been trained to tap its hoof once for yes, twice for no. There is a video recording of her tapping her hoof once, repeatedly, at each step of the sexual encounter, including a request to record the encounter. Discuss.

Posted by: Supremacy Claus | Sep 8, 2013 6:28:07 PM

good one SC of course i think it's bullshit.

If the govt has the right to lie to me. then it fallows since they last time i looked based on the CONSTITUTION get their authority from ME then I must have it too. Otherwise how the fuck could i give it to them.

Kind of hard to give something you DON'T HAVE!

Posted by: rodsmith | Sep 9, 2013 6:59:53 PM

RS: Settled law, from many Supreme Court decisions. Police can lie, government officials can lie. No effect on conviction. "Your partner next door has told us everything, is making a deal to sell you out, and to save himself."

Citizen commits crime lying to the FBI. Martha Stewart did not go to prison for insider trading, for lying to the FBI, about stupid phone records.

Servants can lie. Owner of law gets hammered if he tries the same.

Posted by: Supremacy Claus | Sep 10, 2013 6:10:43 AM

I know this is poor form in a debate.

But does anyone know who else used shaming as a creative sentencing tool? The Nazis.

They did not invent the Yellow Star of David. Edward I did, Longshanks in the movie Braveheart. His portrait hangs in the House of Representatives Gallery of Great Law Givers.

Posted by: Supremacy Claus | Sep 11, 2013 9:40:25 AM

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