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Wednesday, February 15, 2006

Shaming many by shaming one?

As the resident shame-watcher here at Prawfs, I now bring you further news of the Gementera case.  Shawn Gementera, you might recall, was the guy who stole mail; the 9th Cir. upheld (over dissent by Judge Hawkins) the supervised release condition by Judge Walker in NDCal, which requires Gementera to stand for eight hours outside a San Fran post office in a sandwich board sign that says, "I stole mail; this is my punishment."  Unless Judge Walker modifies his position on the supervised release condition, it appears that tomorrow's the day that Gementera will have to walk the streets.  According to the defendant's application for a modification (a copy of which I've received), the Probation Office is handling the publicity, and "a cadre of armed postal police" has been assigned to protect the defendant and keep the peace.  But it might not happen.  Why?

The judge earlier left an "out," namely, if there was evidence the condition was going to cause pyschological harm or unwarranted risk of harm, then that might be a basis for revisiting the imposition of the condition.  Turns out in the last six months the defendant has had much anxiety about the impending shaming, and now expert testimony from a shrink shows that shaming is inappropriate here because Gementera's criminal history is a function more of his substance abuse problems than any "arrogance" or sense of entitlement.  Dr. Korpi, the expert in question, says that it's likely the sandwich board condition will redouble the cycle of depression, self-loathing and substance abuse.  It will only "strengthen his pathology and promote an already weakened and humiliated man to behave rashly."

In light of the situation, it might be that Judge Walker will delete the condition of shaming, and instead impose further community service obligations upon the defendant.  Otherwise, there will be a small media circus tomorrow.  Which raises the question: if you shame one, sure it seems likely to generate a bunch of publicity and maybe some general deterrence.  But if all similarly situated offenders are going to be wearing sandwich boards on the streets, pretty soon it'll be a common-place, and, at least in a place like San Francisco, unlikely to raise too many eyebrows.

If you're interested in the shaming issue, I urge you to read this and this.

Posted by Administrators on February 15, 2006 at 07:28 AM in Criminal Law, Current Affairs, Dan Markel | Permalink


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Bravo Scott:

I'll take it one step further. Even if it is allowed under the 8th and 13th Amendments the judge still needs specific authorization for this sentence by the state penal code. That is basic Fifth Amendment Due Process. No punishment without law. Judges cannot impose sentences based on their own whimsy. It is the State's burden to demonstrate the legitimacy of the sentence in the first instance and not the defendant's to prove psychological harm and a deleterious effect on rehabilitation.

Posted by: nk | Feb 15, 2006 11:22:21 AM

The defendant's "criminal history is a function more of his substance abuse problems than any 'arrogance' or sense of entitlement."

So was drug treatment part of his probation conditions, or just the shaming? If not, it seems like the judge was motivated more by mean-spiritedness and revenge than improving public safety by preventing more crimes by Mr. Gementera.

Posted by: Scott | Feb 15, 2006 8:28:05 AM

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