From Prison Legal News/ by David M. Reutter
Punishments intended to shame offenders for wrongdoing, popular throughout history, are once again on the rise – particularly as penalties imposed by judges who enjoy seeing their names in the newspaper or on television due to their “creative” sentencing practices.
Whether judges hand down sentences that humiliate defendants for the purpose of entertainment, self-aggrandizement or as a unique way of deterring crime with a “punishment that fits” is subject to debate. The only certainty is that most sanctions designed to shame offenders are legal, so long as judges do not go too far.
Shaming criminals has long been an integral part of America’s criminal justice system, and public whipping and the stocks were commonly used in Puritan and colonial times. During that era, imprisonment was reserved for debtors and those awaiting trial; upon conviction, a judge could order an offender to be executed, flogged, banished or shamed.
“While the sentences recognize hope for the individual, they can also be dehumanizing,” said Professor Mark Osler of the St. Thomas University of Law.
Indeed, that was the intent of one colonial judge who sentenced a man convicted of stealing a pair of pants. The judge ordered him to sit in the stocks with “a pair of breeches about his necke.” Public shaming sentences began to fade around the time of the American Revolution, though some shaming punishments, such as the pillory and branding for horse thieves, continued into the 1800s.
Urbanization and migration, say historians, undermined the use of public shaming because people no longer feared the condemnation of their communities. Imprisonment became the punishment of choice, yet states like Pennsylvania and Massachusetts still tried to shame prisoners by allowing the public to watch them “as if in a zoo.”
Some argue that the current system of incarcerating criminals and then releasing them on parole, or placing them on probation, is nothing more than a modern version of shaming. Critics of the criminal justice system contend that, like a yoke around the neck, criminal records follow former offenders forever, often preventing them from obtaining suitable employment, housing and public services.
“The purpose of incarceration ironically is to make someone feel ashamed at the end,” said Peter Moskos, an associate professor of law and political science at the City University of New York, in a debate on shaming punishments that aired on National Public Radio (NPR) in August 2013. “We just have this horrible middle process to get someone there and we want people to feel shame and see what they did was wrong.”
Moskos, who authored the book In Defense of Flogging, said the idea of humiliating punishments is to give people convicted of minor offenses an alternative to prison. “It’s not that I want to see people whipped, but … if you’re sentenced to five years in prison for whatever you did or didn’t do, and the judge gave you the choice of ten lashes, what would you pick?
“Almost everyone would choose the lashes, but we don’t allow that because we consider it cruel and unusual. But if it’s better than prison, what does that say about the system we have?” he concluded.
Jonathan Turley, a professor of public interest law at George Washington University Law School, said during the NPR debate that he agrees that the current prison system is in need of reform but disagrees about shaming punishments.
“Let’s reform our prisons. Let’s focus on that,” he stated. “But to say that we should go to a Singapore flogging system is breathtaking. We did that. We were there. We had flogging posts in [and] around our cities and towns. It was an extremely dark and medieval period.”
Shaming punishments “have really undermined the quality and character of justice in this country,” Turley added. “That is, it allows judges to become little Caesars that make citizens perform demeaning acts and shaming acts.”
However, at least one state lawmaker thinks there’s merit in public flogging. Montana Rep. Jerry O’Neil said he crafted legislation that would give convicted offenders the ability to choose between prison or the “infliction of physical pain.”
“Ten years in prison or you could take 20 lashes, perhaps two lashes a year? What would you choose?” Rep. O’Neil said.
“It is actually more moral than we do now,” he added. “I think it’s immoral to put someone in prison for a long time, to take them away from their family, and force that family to go on welfare.”
The idea was widely criticized by other Montana lawmakers and the American Civil Liberties Union, and O’Neil’s bill, LC1452, died in committee in April 2013.
The advent of mass media that seeks to entertain more than inform has contributed to the growing popularity of public shaming, and has helped some judges – who garner attention by imposing such sentences – become so popular that they have their own TV shows. For example, a Memphis judge allowed the victims of a theft to enter the thief’s house and take anything they wanted as neighbors watched. The notoriety of that shaming sentence helped make Judge Joe Brown a household name for those who watch reality court TV.
The “King of Shame,” Harris County, Texas state judge Ted Poe, felt “people have too good a self-esteem.” To bring defendants who appeared in his court down a rung, he would order them to do such things as shovel manure. While those punishments had little to do with justice, they did help Poe secure a Congressional seat in 2004, and he remains in Congress today.
While studies show that shaming sentences are a poor deterrent to crime, the publicity surrounding such punishments makes them popular choices for judges who thrive on public attention. Then there are judges, such as Georgia’s Russell “Rusty” Carlisle, who apparently enjoy humiliating people. When a littering defendant seemed “kind of cocky,” Carlisle ordered him to use a butter knife to scrape gum off courtroom benches.
“The shaming punishments that we have seen are comical. They are ludicrous,” Professor Turley noted. He said some judges ignore valid sentencing alternatives in order to seek notoriety. “It is a corruptive element in our judicial system and from what we’ve seen from judges is it’s completely corrupting in terms of their own judgment and their own conduct,” he stated. “They get worse and worse to get into the headlines.”
Judges have imposed a variety of shaming sentences in recent years, including:
• In November 2012, Shena Hardin, who was caught on camera passing a school bus by driving on a sidewalk, was ordered by Cleveland, Ohio Municipal Court Judge Pinkey Carr to stand at an intersection wearing a sign that read, “Only an idiot would drive on the sidewalk to avoid a school bus.” Similarly, in March 2013, Carr sentenced another defendant, Richard Dameron, who had threatened police officers, to stand outside a police station for three hours a day for one week with a sign apologizing to the officers and stating “I was being an idiot and it will never happen again.” Dameron failed to show up to hold the sign and was sentenced to 90 days in jail.
• In April 2014, Ohio Municipal Court Judge Gayle Williams-Byer ordered defendant Edmond Aviv to remain on a street corner for five hours with a sign that read, “I AM A BULLY! I pick on children that are disabled, and I am intolerant of those that are different from myself. My actions do not reflect an appreciation for the diverse South Euclid community that I live in.” Aviv had pleaded no contest to disorderly conduct for harassing a neighboring family. “This isn’t fair at all,” he complained.
• A Georgia judge gave Natasha Freeman, 38, a choice of spending four weekends in jail or wearing a sign to resolve charges related to her boarding a school bus to assault her 11-year-old cousin. Freeman chose to wear a sign that said, “I made a fool out of myself on a Bibb County Public Schools bus” for one week, starting on December 10, 2012.
• In 2008, Cleveland, Ohio Housing Court Judge Ray Pianka ordered landlord Nicholas Dionisopoulos to live in one of his own rental properties for six months after he was found in violation of multiple building codes. He also had to pay a $100,000 fine.
• In May 2012, a judge in Utah imposed the same punishment on two girls, 11 and 13, that they had inflicted on a 3-year-old girl they befriended at McDonald’s. The older girls cut the little girl’s hair into a bob with a pair of dollar store scissors. The judge sentenced the 13-year-old to detention and 276 hours of community service, but gave her the option to reduce the community service by more than half if she had her hair cut in the courtroom. She agreed. The 11-year-old was ordered to have her hair cut short at a salon.
• Two days before Christmas in 2013, Montana District Judge G. Todd Baugh ordered Pace Anthony Ferguson, 27, to write “Boys do not hit girls” 5,000 times as part of his punishment for punching his girlfriend. Ferguson was also ordered to serve six months in jail and pay $3,800 in medical bills for fracturing the woman’s face in three places.
• In Pennsylvania, a prosecutor told two women to submit to public humiliation or face charges for stealing from a child. Evelyn Border, 55, and her daughter, Tina Griekspoor, 35, were caught taking a gift card from a girl at Wal-Mart in 2009. They chose to stand in front of the courthouse holding signs that read, “I stole from a 9-year-old on her birthday! Don’t steal or this could happen to you.” The girl, Marissa Holland, reportedly said, “I think it’s pretty fair. They deserved it. I want them to feel sorry.”
• Daniel and Eloise Mireles, convicted of stealing from a victims’ fund in Harris County, Texas in 2010, were sentenced to a lengthy humiliating sentence. Along with jail terms, community service and restitution, the Mireleses were ordered by Judge Kevin Fine to hold signs saying “I am a thief” at a busy intersection every weekend for six years. They also were required to post a sign in front of their house that included their names and said they were convicted thieves.
• A Wisconsin man who crashed his car into the gates of a wastewater treatment plant while drunk in 2008 was forced to choose between 20 days in jail for criminal damage to property or to stand at the plant for eight hours with a sign that said, “I was stupid.” He chose the sign.
• After Jonathan Tarase pleaded no contest to DUI in January 2013, Painesville, Ohio Municipal Court Judge Michael Cicconetti, who is known for his unusual sentences, gave him a choice of either serving five days in jail or viewing the bodies of two victims killed in car accidents and taking a substance abuse course. In January 2014, Judge Cicconetti ordered Jeffrey Gregg to complete 400 hours of community service – while wearing a Santa Claus hat. Gregg’s offense? He had posed as a Salvation Army bell ringer to collect money for himself. “It is too easy to put people in jail,” Cicconetti said. “They go to jail and … it does not deter the crime.”
The above examples are in addition to more widespread public shaming of offenders both before they are convicted – such as booking mugshots posted by jails, and police websites that display photos of defendants arrested for soliciting prostitutes – and post-conviction shaming that includes sex offender registries, which have become ubiquitous.
Nor are modern shaming sentences a recent trend; in 2003, a Texas man was ordered to spend 30 consecutive nights in a 2-by-3 foot doghouse for whipping his stepson with a car antenna. The judge did allow Curtis Robin, Sr. to have a sleeping bag, mosquito netting, plastic tarp or similar items during his stint in the doghouse. Other more recent sentences designed to shame or humiliate offenders have been reported since the 1990s.
Not all shaming sentences are legal or constitutional, though; some are questionable. For example, a 27-year-old Virginia man agreed in June 2014 to undergo a surgical vasectomy in order to reduce his prison sentence for child endangerment, stemming from a vehicle accident that caused minor injuries to one of his children. “He needs to be able to support the children he already has when he gets out,” said prosecutor Ilona White, who admitted the offer was intended to prevent Jessie Lee Herald from fathering more children than the seven he already had with at least six women.
“This takes on the appearance of social engineering,” complained Richmond, Virginia attorney Steve Benjamin, past president of the Virginia Association of Criminal Defense Lawyers. “Sentencing conditions are designed to prevent future criminal behavior,” he said. “Fathering children is not criminal behavior.”
In Oklahoma, District Court Judge Mike Norman ordered Tyler Alred, 17, to attend church for 10 years as a condition of his sentence for DUI manslaughter. Alred was behind the wheel of a pickup truck that crashed in December 2011, killing a passenger. The Oklahoma ACLU condemned the sentence, imposed in November 2012, as a “clear violation of the First Amendment,” and filed a complaint against Norman. But the judge defended the punishment, which Alred had agreed to. Other conditions of the sentence included requirements that Alred graduate from high school, graduate from welding school, take drug and alcohol tests, and participate in victim impact panels.
Cameron County, Texas Justice of the Peace Gustavo “Gus” Garza allowed parents to spank their children in his courtroom in lieu of paying a fine, for which he was admonished by the State Commission on Judicial Conduct on March 9, 2009. The Commission concluded that “Judge Garza exceeded his authority by providing parents and the school district with a ‘safe haven’ for the administration of corporal punishment … with no legal authority to impose the sanction either by the Texas Education Code or Texas Code of Criminal Procedure.”
And in Pennsylvania, in August 2014 a Superior Court struck down part of a shaming sentence imposed on former state Supreme Court Justice Joan Orie Melvin, who was convicted of misusing public funds and using court and legislative staff to run her election campaigns. [See: PLN, Sept. 2014, p.56]. The trial court had ordered her to send pictures of herself wearing handcuffs to judges across the state; the Superior Court wrote that “the handcuffs as a prop is emblematic of the intent to humiliate Orie Melvin in the eyes of her former judicial colleagues…. It was solely intended to shame her.”
“Judges have the power to create their own unique sentences. And courts have ruled that sentences involving public shaming are constitutional as long as they aspire to some other goal, such as deterrence or retribution,” wrote Reason magazine contributing editor Greg Beato. “But equal application of the law is a crucial element of our justice system. It’s one of the reasons we have sentencing guidelines. And quirky punishments designed to go viral don’t just fail to meet this standard of the law; they actively subvert it. Their primary goal is to court publicity, and that publicity can’t be accurately anticipated or controlled.”
Experts say it stands to reason that so long as the public is entertained by shaming sentences, they will continue to be imposed. “These are punishments that often appeal to the public and bring a type of instant gratification for the court,” said Professor Turley. “To some extent, we’ve seen the merging of law and entertainment in the last 10 years.
“Most of these people probably would not go to jail,” he added. “People aren’t taking a murderer and saying, ‘I want you to bark like a dog in my courtroom and I’ll let you off for murder.’ These are relatively small offences and many of them would not result in incarceration or weekend incarceration, but what these judges do is they impose very heavy sentences in order to force people to do what they want.”
There may also be socioeconomic bias with respect to shaming sentences – when such punishments are offered as an option in lieu of fines, poor defendants are more inclined to chose them while wealthy offenders who can afford to pay financial penalties are less likely to submit to humiliating sanctions.
Unfortunately, many judges do not seem to understand that they can impose creative sentences that do not result in public shaming. For example, in December 2014 the Detroit News reported that Wayne County, Michigan Circuit Court Judge Deborah Thomas, a former teacher, requires defendants to finish high school or obtain a GED certificate as part of their sentences. She posts the diplomas and certificates on her courtroom wall.
“Their job prospects are more limited, they have lower self-esteem,” Thomas said of offenders who did not finish high school. “But when they have [the diploma] they have success, they realize ‘I can succeed at other things.’” She added, “I tell them just because you came through here doesn’t mean this has to be your permanent route…. We punish negative behavior. We should reward positive behavior.”
Sources: Associated Press, www.cbs12.com, www.myfox.com, www.abcnews.go.com, www.slate.com, USA Today, www.foxnews.com, www.wordoncampus.com, Detroit News, www.huffingtonpost.com, www.csmonitor.com, www.correctionsone.com, www.ksl.com, www.npr.org, www.latimes.com, www.local8now.com, www.dailymail.co.uk, http://blog.constitutioncenter.org, http://blogs.findlaw.com, www.cleveland.com, www.reason.com