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Wednesday, April 06, 2005

Shaming, Redux

From the I-told-you-so files.

Last August, the Ninth Circuit (the federal appeals court out West) released its Gementera decision.  That case upheld, over a dissent by my former boss (Judge Hawkins), the lower court's imposition of a scarlet letter punishment.  The defendant was required to wear a sign outside a post office that said "I stole mail. This is my punishment."

Shortly thereafter, I had a brief piece in the New Republic, commenting on the case and making the wild and crazy prediction that the imprimatur of the federal appeals court would embolden other government officials around the country to engage in similar tactics of branding and stigmatization. 

Well, according to this very recent story, Assistant U.S. Attorney William Welch sought to have a  convict wear a sandwich board that said: "I STOLE $10,000 FROM THE SCHOOL DEPARTMENT. THIS IS A SERIOUS CRIME. THIS IS PART OF MY PUNISHMENT."  Surprised?  The prosecutor acknowledged the Ninth Circuit decision as his inspiration for this punitive condition. 

Importantly, the district court denied the imposition of this condition, but left open the possibility that it could be imposed in the future.  District Court Judge Ponsor said, "I don't think it's out of the question in an appropriate case."

As it turns out, the Ninth Circuit has not yet put this question to rest.  After the Gementera decision was issued, the defendant filed a petition for rehearing and rehearing en banc.  Additionally, I represented a group of law professors seeking, in an amici curiae brief, grant of the petition for rehearing, on the grounds that the shaming condition violated various provisions of the Sentencing Reform Act and the Constitution.  As of a month ago, the court had ordered the government to respond to the briefs, which is a sign that the briefs (including the amici brief available here) may yet have some traction.   Stay tuned for developments.   

(Hat tip to CrimProfBlog.)

Posted by Administrators on April 6, 2005 at 01:17 AM in Criminal Law | Permalink


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you make some important points that standards of review do matter. But for the reasons we articulated in the brief, getting the law wrong does constitute an abuse of discretion. And the court got the law wrong at the trial level. Additionally, the Kahan and Posner and Garvey (Garvey signed our amici brief) pieces do not provide empirical support for the statement that shaming serves as a deterrent. They merely posit it (not that there's anything wrong with that; it's very hard to measure deterrence effectively). Finally, the Ninth Circuit based its opinion largely on the rehabilitation rationale, and for that, there is no evidence, nor authority. As I recall, the precedent relied upon discussed the use of apologies, which is very different than stigmatic public debasement imposed before and with the help of the public. Moreover, there is precedent in the 9th that excoriates the kind of ritual spectacles of potential offenders. So the issue is a bit more open-textured. Anyway, I appreciate your comments. The court has its work cut out for it.

Posted by: Dan | Apr 6, 2005 5:22:15 PM

I did read the brief, and I'm unpersuaded that it offers grounds to overturn the trial court on appeal.

First, the standard of review for a supervised release condition is abuse of discretion - a very high hurdle to overcome on appeal, so just disagreeing with the trial court is woefully not enough to overturn its decision.

Second, the trial court stated on the record that its purpose in imposing the condition was rehabilitation, deterrence and protection of the public; you don’t have to agree with it, but you can’t say that a punitive justification was the only justification that the court presented - it expressly stated rehabilitation and deterrence, and to a lesser degree protection of the public.

Third, you can’t say that the appellate court had “no evidence” that shaming is a more effective deterrent or that there is “no evidence” that shaming serves a rehabilitative purpose. The Kahn & Posner and Garvey articles make exactly this claim (to varying degrees) and the appellate court cites to two cases holding that it does. Even if there was indisputable evidence that some other punishment is more effective, that does not mean that the trial court is obligated to prefer it, or that a court of appeals may reverse under the abuse of discretion standard because the trial court didn’t pick the most effective condition of release. Standards of review matter.

You also wholly ignore that the trial court explicitly stated that deterrence and protection of the public were other justifications for imposing the conditions. Deterrence is clearly a legitimate purpose for imposing sentencing conditions, rehabilitation need not be considered at all.

With all due respect, you seem to just ignore evidence you don’t want to see. I haven’t looked closely at the Eighth Amendment arguments, though after the three-strikes cases of a few years ago it seems to me to be a very uphill climb.

Resepectfully yours,

Posted by: MJ | Apr 6, 2005 4:55:46 PM

The condition in the Gementera case was handed down as a supervised release condition, for which the law distinctly prohibits imposition of conditions that are for punitive (retributive) purposes. The trial court, like the appellate court, had no evidence of shaming as a marginally more effective deterrent; nor was there any evidence that shaming serves a rehabilitative purpose. If anything, the evidence goes the other way. There's also the more general question of whether any condition that degrades human dignity as its purpose is compatible with the 8th Amendment jurisprudence. Read the brief if you're interested in this more.

Posted by: Dan | Apr 6, 2005 3:24:15 PM

The SRA says punishments must be aimed at one or more of three goals: deterrence and/or rehabilitation and/or public protection. The trial judge found that the sign could serve as a deterrent and/or rehabilitate the defendant. There is at least as much sociological evidence for shaming as against it, thus the idea of shaming is as supported as it is refuted.

What is a reviewing court supposed to do, just look out over the sociological evidence, pick out the evidence it likes, then ignore the competing evidence? All Judge Hawkins is really stating is that he doesn't agree with the trial court. Is it a silly idea? Maybe. Was it within the permissible constitutional/statutory bounds? Looks like yes. A reviewing court then has no business overturning a trial court's decision on a sentence. Were the case not in the 9th Circuit, there would be little chance of en banc review. Even in the 9th Circuit, this shouldn't be a close call.

Posted by: MJ | Apr 6, 2005 2:52:56 PM

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