Appellate Practice
Sep. 15, 2004
Criminal Justice System Regresses Under 'Gementera'
Forum Column - By Erwin Chemerinsky - A recent 9th U.S. Circuit Court of Appeals ruling upholding punishments imposed solely for the purpose of shaming a criminal defendant returns the criminal justice system to the discredited practices of centuries ago.
Erwin Chemerinsky
Dean and Jesse H. Choper Distinguished Professor of Law, UC Berkeley School of Law
Erwin's most recent book is "Worse Than Nothing: The Dangerous Fallacy of Originalism." He is also the author of "Closing the Courthouse," (Yale University Press 2017).
By Erwin Chemerinsky
A recent 9th U.S. Circuit Court of Appeals ruling upholding punishments imposed solely for the purpose of shaming a criminal defendant returns the criminal justice system to the discredited practices of centuries ago. In United States v. Gementera, 2004 DJDAR 9775 (Aug. 9, 2004), the 9th Circuit affirmed a federal judge's sentence that included requiring a convicted mail thief to spend a day standing outside a post office wearing a signboard stating, "I stole mail. This is my punishment."
In a 2-1 decision, with the majority opinion by Judge Diarmuid F. O'Scannlain, the court concluded that the sentence was within the federal sentencing guidelines and did not constitute cruel and unusual punishment. Such shaming punishments rarely have been imposed in the federal system, and thus the opinion in Gementera sets an important precedent. For exactly this reason, either the 9th Circuit, en banc, or the U.S. Supreme Court should grant review and hold that punishments imposed only to shame and humiliate have no place in the American system of justice.
Shawn Gementera was caught stealing letters from a mailbox in San Francisco. Gementera pleaded guilty, and Judge Vaughn Walker in the U.S. District Court for the Northern District imposed a sentence of two months' incarceration and three years of supervised release. One condition of the supervised release, and the sentence, was that Gementera stand outside a post office for a day wearing a sandwich board or carry a sign saying that he stole mail.
All punishments, of course, impose a degree of shame and humiliation on those convicted. Being arrested and tried certainly involves shame and humiliation, as does imprisonment. But there is an enormous constitutional difference between government actions taken for legitimate reasons that have the secondary effect of inflicting shame and a punishment that is imposed with the sole intent of humiliating.
The 9th Circuit's decision upholding shaming violates the Supreme Court's command that "[t]he basic concept underlying the Eighth Amendment was nothing less than the dignity of man." Trop v. Dulles, 356 U.S. 86 (1958). Punishments imposed for no purpose other than inflicting shame and humiliation are inconsistent with a constitutional requirement that penalties, even for heinous crimes, must be consistent with human dignity. Long ago, in Weems v. United States, 217 U.S. 349 (1910), the Supreme Court explained that the prohibition on cruel and unusual punishment "is not fastened to the obsolete, but may acquire meaning as public opinion becomes enlightened by a humane justice."
Neither the Supreme Court nor the 9th Circuit ever before considered the constitutionality of punishments imposed solely for the purpose of shaming and humiliating a convicted defendant. But both courts clearly have indicated their disapproval of such punishments. For example, last year, in Smith v. Doe, 538 U.S. 84 (2003), in upholding an Alaska law requiring sex offenders to register, the Supreme Court stressed that it was not adopted with the sole goal of shaming violators. The court said that the Alaska law mandating registration of sex offenders was different from punishments designed to humiliate because "the stigma of Alaska's Megan's Law results not from public display for ridicule and shaming but from the dissemination of accurate information about a criminal record, most of which is already public." The court concluded that "[o]ur system does not treat dissemination of truthful information in furtherance of a legitimate governmental objective as punishment."
The 9th Circuit, also, has indicated that punishments for the sole purpose of shaming constitute cruel and unusual punishment in violation of the Eighth Amendment. For example, in Demery v. Arpaio, 378 F.3d 1020 (9th Cir. 2004), the 9th Circuit found unconstitutional a sheriff's policy of broadcasting pretrial detainees on a webcam. The court explained that "[p]lacing arrestees on public display in the stocks is a part of our distant past and shocks the modern conscience. ... Although a regulation that has the incidental effect of shaming may not be a form of punishment, we have no doubt that when the government acts with the purpose of shaming an unconvicted detainee, it most definitely is committing an act of punishment in violation of the Fourteenth Amendment's Due Process Clause."
Similarly, in upholding a state's community notification law for sex offenders, the 9th Circuit court expressly contrasted it to public shaming. Russell v. Gregoire, 124 F.3d 1079 (9th Cir. 1997). The court explained, "Public shaming, humiliation and banishment all involve more than the dissemination of information. ... [T]he potential ostracism and opprobrium that may result from notification is not inevitable as it was with the person whipped, pilloried, or branded in public."
Forcing Gementera to stand outside a post office wearing a signboard stating that he stole mail serves absolutely no purpose other than to shame and humiliate him. The 9th Circuit decided that this was permissible because, "[a]side from a single case presenting concerns not at issue here, we are aware of no case holding that contemporary shaming sanctions violate our Constitution's prohibition of cruel and unusual punishment." Almost no federal-court decisions concern shaming punishments because such sanctions have virtually never been used in the federal courts.
Moreover, contrary to the 9th Circuit's assertion, courts across the country have found that punishments imposed for the sole purpose of inflicting shame are unreasonable and impermissible. For example, in People v. Meyer, 680 N.E.2d 315 (Ill. 1997), the Illinois Supreme Court held that the defendant, as a condition of probation, could not be required to post a sign outside the family farm reading, "Warning! A violent felon lives here. Enter at your own risk!" The court found such a shaming punishment impermissible and declared, "[W]e conclude that the trial court exceeded its authority and abused its discretion under section ... when it ordered the defendant to place the violent felon sign at the entrance to his farm. This condition was not reasonable."
Similarly, the Tennessee Supreme Court in State v. Burdin, 924 S.W.2d 82 (Tenn. 1996), considered and rejected a comparable "shaming sign," finding that it was unreasonable. The court found impermissible a condition of probation requiring the defendant to erect a sign in his front yard that read, "Warning, all children. [Defendant] is an admitted and convicted child molester. Parents beware."
In People v. Letterlough, 86 N.Y.2d 259 (1995), the court found impermissible a condition of probation that required the defendant to affix a fluorescent sign reading "convicted dwi" to the license plate of any vehicle he drove. Similarly, in People v. Johnson, 528 N.E.2d 1360 (4th Dist. Ill. App. Ct. 1988), the Illinois Appellate Court overturned a sentence that ordered the defendant convicted of driving while intoxicated to place an advertisement in the local daily newspaper, which contained her booking picture and an apology.
In People v. Hacker, 13 Cal.App.4th 1049 (Cal. App. 5th Dist. 1993), the 5th District Court of Appeal found impermissible a sentence that required a shoplifting offender to wear a court-approved T-shirt whenever he left the house that read, "My record plus two six-packs equals four years" on the front and "I am on felony probation for theft" on the back. The court concluded that such a shaming punishment was not reasonable. Likewise, in Williams v. Georgia, 234 Ga. 37 (1998), the Georgia Supreme Court found that it was cruel and unusual punishment in violation of the Eighth Amendment to force a man to wear a placard stating "High Crime Area."
In all of these cases, the courts found shaming punishments unreasonable, even if they did not all reach the constitutional issue of whether they constitute cruel and unusual punishment. Although some courts have upheld shaming punishments, the weight of authority against them certainly indicates that the evolving standards of decency, which are the basis for Eighth Amendment analysis, disapproves of punishments that are imposed for no purpose other than shaming a person.
Moreover, a strong argument says that the shaming punishment is inconsistent with the federal sentencing guidelines. Judge Michael Daly Hawkins, in dissent in Gementera, made exactly this point: "Clearly, the shaming punishment at issue in this case was intended to humiliate Gementera. And that is all it will do. Any attempt to classify the goal of the punishment as anything other than humiliation would be disingenuous. Because humiliation is not one of the three proper goals under the Sentencing Reform Act, I would hold that the district court abused its discretion in imposing the condition."
Shaming punishments were abandoned in the 19th century. Now, they seem to be making an unfortunate comeback. A petition for en banc review and ultimately a request for review in the United States Supreme Court are likely in Gementera. This will give these courts a chance to clarify the law and emphatically hold that sentences imposed solely to shame and humiliate are impermissible. Hawkins explained, "To affirm the imposition of such punishments recalls a time in our history when pillories and stocks were the order of the day. To sanction such use of power runs the very great risk that by doing so we instill a sense of disrespect for the criminal justice system itself."
Erwin Chemerinsky is Alston & Bird Professor of Law at Duke Law School.
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