Earlier this month, the U.S. Court of Appeals for the Ninth Circuit upheld a "shaming" probation condition for a convicted mail thief. The judge required the convict to wear a sign announcing his crime to the world.
The appeals court found the probation condition to be in compliance with both federal statutory and constitutional law. But even the possibility that shaming might be excessively harsh or cruel suggests that we need to seriously reconsider the punishment we routinely impose upon convicts: imprisonment. It is against this punishment, and not in a vacuum, that the legitimacy of alternatives - including "shaming" - ought to be tested.
The Shaming Condition
Shawn Gementera pleaded guilty to mail theft. He was sentenced to two months incarceration and three years of probation, accompanied by several conditions. Following a modification, one probation condition required the defendant to "perform 1 day of 8 total hours of community service during which time he shall either (i) wear a two-sided sandwich board-style sign or (ii) carry a large two sided sign stating, 'I stole mail; this is my punishment,' in front of a San Francisco postal facility identified by the probation officer."
Gementera challenged this "shaming" penalty as violating the Sentencing Reform Act as well as the Eighth Amendment's bar on cruel and unusual punishments.
The question here is, at bottom, whether forcing a person to expose his crime in a very public fashion deliberately and inappropriately inflicts humiliation, in contravention of both rehabilitative statutory goals and constitutional norms of avoiding excessive cruelty.
The U.S. Court of Appeals for the Ninth Circuit, in an opinion by Judge O'Scannlain, said no. The court found plausible the government's account of shaming as rehabilitative, and Judge O'Scannlain asserted that shaming does not categorically violate our nation's punishment norms in its harshness.
In a telling comment toward the end of its opinion, the court said that "particularly in comparison with the reality of the modern prison, we simply have no reason to conclude that the sanction before us exceeds the bounds of 'civilized standards' or other 'evolving standards of decency that mark the progress of a maturing society.'" This language represents the current Eighth Amendment test, as set forth by the Supreme Court.
Prison: The More Typical Punishment
The court's comparison of a challenged probation condition to the reality of modern prisons in this country -- replete, as they are, with abuse, sexual humiliation, and rape -- is not surprising. We cannot fully consider the cruelty of an alternative to the default punishment, after all, without knowing something about the comparative cruelty of that default. And when it is prison in the U.S. that we are discussing, the comparative cruelty is great indeed.
When the photographs from Abu Ghraib first emerged, many were shocked and dismayed to learn of the brutality and sadism with which Americans had been treating their Iraqi prisoners. To those familiar with prison conditions in the United States, however, the photographs were, sadly, not surprising, except in that records of the abuse were so proudly kept by the abusers themselves.
Prison rape in this country is epidemic, and prison guard neglect and abuse of prisoners are known to be widespread. Perhaps these conditions simply reflect human nature. A study conducted at Stanford University in 1971 suggested that placing a person in the role of prison guard is enough to turn a normal, emotionally healthy college student into a sadistic and abusive bully toward his fellow students in a matter of days. It may be that without effective training of guards to head off such behavior, prisons will necessarily be merciless places.
This is the Hobbesian state into which we place our convicts, a state of which we may be ignorant, but only in the sense of turning our heads away when we see an ugly spectacle. We don't know what we don't want to know.
What Probation Conditions Could Be As Cruel as Prison?
In the light of prison realities, then, what probation condition could compete? If prison is okay, then shaming must be too. The dissenter in Gementera's case - Judge Hawkins -- avoids the comparison altogether. He focuses instead on what he views as the evident intention of Judge Vaughn Walker of the Northern District of California to humiliate the defendant. The Sentencing Reform Act, in Judge Hawkins' view, does not permit a shaming probation condition motivated by this purpose.
In addition to opining that the shaming condition should have been rejected on legal grounds, moreover, Judge Hawkins adds that its imposition "is simply bad policy. A fair measure of a civilized society is how its institutions behave in the space between what it may have the power to do and what it should do. The shaming component of the sentence in this case fails that test."
This statement effectively articulates a purist's position: "'When one shames another person, the goal is to degrade the object of shame, to place him lower in the chain of being, to dehumanize him.'" And this position has some appeal: It is in fact unseemly to have Article III judges forcing people to wear a "kick me" sign. But what would the dissent say about prison?
Taking Prison Abuse Seriously: The Need to Address Existing Cruelties
The failure of our legal system to take this question seriously in any systematic way is troubling. There are decisions addressing the fundamental right to procreate, for example, and holding that probation conditions requiring deadbeat dads to stop reproducing are impermissible. But the issue of prison abuse never truly calls our system into question.
So what am I proposing? That we release all state and federal prisoners pending the development of a more humane approach? Of course not. Though incarceration may be horrible, it is currently a (temporarily) effective means of incapacitating violent offenders. And for those offenders, prison reform litigation has led to some improvements and may yet lead to a more complete overhaul.
But for nonviolent individuals (such as mail thieves) who betray the public trust and require some sort of punishment, it may behoove us to take seriously the shaming alternative as well as others that are less cruel, less expensive and less likely to become a crime school, than prison.
Shaming does seem like a cruel way to treat a person, particularly someone who has not humiliated anyone or caused physical injury or terror. But perhaps the openness of a shaming penalty -- the very thing that raises objections -- is a healthy start. It may begun the process of our moving away from an underground system of hideous behavior that we pretend is something other than a sentence of abuse, humiliation and worse.
Sherry F. Colb, a FindLaw columnist, is Professor and Judge Frederick B. Lacey Scholar at Rutgers Law School-Newark. Her earlier columns may be found in the archive of her work on this site.
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