Friday, January 15, 2010

Shame on Whom?


Shaming sentences . . . shame on the offender or shame on society for imposing such sentences? This post is just a quick bit of musing. Recently on the Sentencing Law and Policy Blog by Professor Berman, there was a post regarding a shaming sentence in Florida. See http://sentencing.typepad.com/ (Jan. 13 post). A twenty-four-year-old student had to hold a sign saying she had battered a police officer.

This post follows on the heels of my reviewing United States v. Gementera, 379 F.3d 596 (9th Cir. 2004), which involved some alternatives to incarceration in a mail theft case. The sentence was 2 months of custody plus three years of supervised release with certain, non-standard conditions. At first, one condition was wearing a sandwich board outside a post office proclaiming the offender had stolen mail. Upon motion by the defense, this condition was changed to one requiring the offender to deliver lectures at high schools, write apology letters to victims, and spend 24 hours at postal facilities with lost-mail windows, so the defendant could observe postal patrons who had to inquire about lost or stolen mail. The sandwich-board condition was kept, but in a modified form. The defendant appealed the conditions. The 9th Circuit affirmed.

The dissent found the sandwich-board condition to be an abuse of discretion---that its sole function was to humiliate.

This case law and these punishments also raise questions about the purposes of sex-offender registration and DNA collection. Are they not, in some way, a form of shaming punishment? Is having a publicly accessible database of sex offenders on the Internet a form of shaming punishment? One that may have no end for some individuals. . . . What about the stigma of having ones DNA held in perpetuity in a law-enforcement database?

Just some Friday musings. . . .

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