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Wednesday, February 15, 2006

Update on Gementera

Judge Walker denied Gementera's petition today to eliminate the shaming condition.  The order was unpersuasive, to my mind.  Earlier in the case, Judge Walker had said he would reconsider the shaming condition if there was evidence that "this condition would likely impose upon defendant psychological harm or effect or result in unwarranted risk of harm to" the defendant.  The court's order relied upon language in the expert's report, which I discussed earlier today, stating that the defendant would not likely experience "permanent psychic maiming." It was essentially upon this slim reed that Walker leaned. For Walker's order mentions nothing about the expert's conclusions that the sandwich board condition will redouble Gementera's cycle of depression, self-loathing and substance abuse; that it had no rehabilitative value; and that it will only "strengthen his pathology and promote an already weakened and humiliated man to behave rashly."  I guess the judge's reasoning is that because those effects fall short of "permanent psychic maiming," they're not worth replacing with an alternative.

I wish Walker would have articulated earlier that his standard for revisiting the condition would be so forbidding.  After all, the Ninth Circuit relied in part on the notion that this supervised release condition would be rehabilitative and that Walker said he would reconsider the condition in light of evidence of harm or potential harm.  Well, now you have an expert saying this condition will serve no rehabilitative purpose and this will cause harm.  Alas.

Posted by Administrators on February 15, 2006 at 06:35 PM in Dan Markel | Permalink


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I have to admit this has a ring of curiosity about it. I disagree about the harmful effects of shame punishment if we use the many safeguards listed in Gementera, however, I certainly respect the well-considered views of others who believe these punishments are a dreadful thing. What is curious about this is the fact that seemingly everyone critical of this order makes no mention of its alternative (save, perhaps David above): a year in prison. Arguably, if we're all genuinely worried about shame and humiliation of offenders, sending them to prison is a bad idea, indeed. And that's without a consideration of the risks of sexual assault to them (and teh lasting damage), too. If the loss of dignity or the fact of humiliation/stigmatization were all there was to it, then no one would defend shame punishment *or* prison.

That said, again, I am not sure shame punishment (a la Gementera) is as bad as it has been made out. I have a paper myself perhaps worth mentioning--- http://ssrn.com/abstract=889702 It discusses Gementera as well as Martha Nussbaum's views against shame punishment. I argue that Gementera should be acceptable to her.

Of course, in the end, Gementera stole post again. In a way. He was found with a letter addressed to his property with a different name (with a credit card inside). He then finally was sentenced to one year in prison. Shame punishment was an attempt to instill guilt in a person who didn't recognize his wrongdoing. In this one attempt, it failed. Nussbaum and many others remind us that shame and guilt have a strong connection. If we can help induce guilt without degrading the dignity of offenders (and avoid prison), we should do so. To not shame Gementera was to imprison him. I'm glad he had a chance to avoid a sentence.

Posted by: Thom Brooks | Jul 24, 2006 12:30:21 PM

"Coddling," huh? Have you ever been inside a prison? That's not how I'd describe it.

But doesn't that undermine the argument against this punishment? After all, this mere eight hours of sign holding was in lieu of spending more time in prison.

Isn't a better question whether this new witness is an "expert" by any scientific standard?

Posted by: David Nieporent | Feb 19, 2006 9:40:37 PM

"Coddling," huh? Have you ever been inside a prison? That's not how I'd describe it.

As for Gementera, Judge Walker's "permanent psychic maiming" flip-flop is the real shame - if he didn't intend to honor his earlier standard, he shouldn't have offered it.

Posted by: Scott | Feb 17, 2006 9:30:26 AM

Don't you think that the courts have coddled the criminals enough as it is. A little public humiliation is more than fair for most criminals... Criminals have been protected far too long and given far too many rights, especially if you look to see what happens to their victims. Take a look at this story.

Posted by: Dan | Feb 16, 2006 10:32:53 AM

There was, as far as I can tell, no other expert challenging the testimony brought by the defense's expert, who has done lots of expert work for the court, probation office and district attorney on prior occasions.

Posted by: Dan Markel | Feb 15, 2006 11:37:38 PM

Is that expert an expert hired by the defense? If so, that seems worth noting.

Posted by: thelawgal | Feb 15, 2006 10:17:26 PM

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