Humiliating Punishments and the Abuse of Judicial Power

September 18, 2005 Sunday

HEADLINE: Shame On You;
Enough With the Humiliating Punishments, Judges

BYLINE: Jonathan Turley

BODY:

Shawn Gementera must have known that he would face some kind of punishment after a police officer nabbed him and a friend in the act of stealing letters from mailboxes along San Francisco’s Fulton Street four years ago. While jail or probation might have crossed Gementera’s mind, U.S. District Judge Vaughn R. Walker had a more creative idea. Walker sentenced Gementera to stand outside a post office while wearing a sign that read: “I stole mail. This is my punishment.” Where the judge saw a novel way of conveying society displeasure with mail theft, Gementera’s lawyers saw a violation of the Constitution’s ban on “cruel and unusual punishment.” The U.S. Court of Appeals for the 9th Circuit decided, however, that while the humiliating sentence might be unusual, it wasn’t cruel.

Lately it hasn’t been all that unusual either. The Gementera sentence — taken last month to the Supreme Court — is one of a growing number of “creative punishments” being handed down across the country by judges who want to use shame or humiliation to deter people from committing further offenses. As clever as these punishments might seem, judges are not chosen to serve as parents trying to set consequences for wayward children. Law demands not just consequences for wrongdoing, but consistent consequences. Otherwise citizens are left wondering whether they will receive a standard punishment or one improvised to suit a judge’s whim.

Shaming punishments were common in the United States before the advent of model criminal codes and the development of constitutional limitations in sentencing. While the scarlet letter made famous by Nathaniel Hawthorne’s classic novel about adultery is the best known, it was not the most common. Early sentences often required offenders to endure public displays of guilt by wearing signs or being pilloried in common areas. Adulterers were often required to carry heavy stones around a church or town.

Most shaming punishments were abandoned as either ineffective or unconstitutional. Modern law values the consistent imposition of punishment and frowns upon judges who personally tailor new forms of punishment for particular defendants. What is most dangerous about this recent trend is that, in the name of reforming citizens, judges will impose their own quirky brand of justice by ordering citizens to parade, worship or even marry. Consider a few examples, all from state or local courts:

* In Kentucky, Judge Michael Caperton recently allowed drug and alcohol offenders to skip drug counseling if they agreed to go to 10 church services. A pastor, like a divinely ordained probation officer, signs off on the completion of this obligation.

* In Texas in 2003, Judge Buddie Hahn gave an abusive father a choice between spending 30 nights in jail or 30 nights sleeping in the doghouse where prosecutors alleged the man had forced his 11-year-old stepson to sleep.

* In Georgia last year, Judge Sidney Nation suspended almost all of Brenton Jay Raffensperger’s seven-year sentence for cocaine possession and driving under the influence in exchange for his promise to buy a casket and keep it in his home to remind him of the costs of drug addiction.

* In Ohio, a municipal judge, Michael Cicconetti, cut a 120-day jail sentence down to 45 days for two teens who, on Christmas Eve 2002, had defaced a statue of Jesus they stole from a church’s nativity scene. In exchange, the pair had to deliver a new statue to the church and march through town with a donkey and a sign reading “Sorry for the Jackass Offense.”

* In North Carolina in 2002, Judge James Honeycutt ordered four young offenders who broke into a school and did $60,000 in damage to wear signs around their necks in public that read “I AM A JUVENILE CRIMINAL.” One, a 14-year-old girl, appealed and Honeycutt was reversed.

In a newspaper interview last year, Georgia Judge Rusty Carlisle said he often imposes shaming punishments when defendants seem insufficiently chastened. He cited an early case: a person accused of littering whom Carlisle felt was “kind of cocky.” So the judge gave him a cup and a butter knife and told him to scrape the gum off the bottoms of the court benches as the judge and others watched.

There’s no evidence that creative sentences work better at deterring crime than other punishments. Yet public punishments can be harshest on the most commonly targeted and vulnerable group — young people.

The recent penchant for customized punishments also undermines efforts to make criminal sentencing more uniform. Creative punishments often reflect the cultural character of a state. While an abusive father was given the choice of sleeping in a doghouse in Texas, domestic abusers were forced to attend meditation classes with herbal teas and scented candles in Santa Fe, N.M.

As elected officials, state judges know that few things please the public as much as hoisting a wretch in public. One Texas state judge, Ted Poe, was known as “The King of Shame” for his signature use of punishments like shoveling manure. Poe said that he liked to humiliate people because “[t]he people I see have too good a self-esteem.” Poe was so popular for what he called “Poe-tic Justice” that he literally shamed himself right into Congress and is now serving as a member of the House of Representatives.

In Memphis, Judge Joe Brown became famous for allowing victims of burglaries to go to the homes of the thieves and take something of equal value. When asked about his authority to order judicially supervised burglaries, Brown explained with a hint of amazement that “under Tennessee law it appears to be legal.” Brown eventually took his brand of justice to television as the host of his own syndicated court show.

What distinguishes the Gementera case is that it was a federal judge who imposed the shaming punishment. Federal judges have long been viewed as insulated from this trend — until now. And Judge Walker was upheld by the 9th Circuit Court of Appeals, which noted that “in comparison with the reality of the modern prison, we simply have no reason to conclude that the sanction . . . exceeds the bounds of ‘civilized standards’ or other ‘evolving standards of decency that mark the progress of a maturing society.’ ”

But the 9th Circuit Court’s ruling is more a devolution of standards. These novel sentences threaten the very foundation of a legal system by allowing arbitrary and impulsive decisions by judges. A judge is allowed to weigh guilt and impose sentences. Yet it is the legislature that should define the forms and range of permissible punishment for a crime. That’s why it was popular but wrong when North Carolina Judge Marcia Morey recently allowed speeders to send their fines to a charity for hurricane victims rather than to the state. Similarly, Wisconsin Judge Scott Woldt recently ordered Sharon Rosenthal, who stole money from the labor union where she was treasurer, to donate her family’s Green Bay Packers seats to his preferred charity, the Make-A-Wish Foundation. Such measures turn courts cases into private charity pledge drives.

As judges vie for notoriety through sentencing, citizens will be increasingly uncertain about the consequences of their actions. Will it be probation or humiliation? Once you allow judges to indulge their own punitive fantasies, defendants become their personal playthings — freaks on a leash to be paraded at the judges’ pleasure.

These cases betray a disturbing convergence of entertainment and justice in the United States. There has been an explosion of faux-court programs like “Judge Judy,” “Judge Hatchett” and “Judge Joe Brown.” For anyone who knows and values the legal system, these shows are vulgar caricatures that have no more relation to real law than TV’s Wrestlemania has to real wrestling. Yet it appears that some judges long for those Judge Judy moments when they can hand out their own idiosyncratic forms of justice.

If states and Congress do not act, we may find ourselves with hundreds of Judge Browns imposing sitcom justice with real citizens as their walk-on characters. In the meantime, as shaming devices become commonplace and therefore less shameful, and as there are more people walking around wearing special signs, jurists will need to dream up new, more demeaning punishments to make an impression on defendants — leaving both citizens and justice at risk.

The Supreme Court could help reverse this shameful trend with the Gementera case. Of course, even if it does, Judge Walker is unlikely to be seen standing outside the San Francisco courthouse wearing a sandwich board proclaiming “I Was Reversed by the Supreme Court” or “I Imposed Cruel and Unusual Punishment.” In some ways, that’s a real shame.

17 thoughts on “Humiliating Punishments and the Abuse of Judicial Power

  1. yeah I believe in some cases it is pretty rediculous but if you look at the advantages and disadvantages of it, the criminal is less likely to commit another crime,(or at least that would stop my crmie spree).

  2. […] Va. Judge Thrown Off Court After Deciding Custody Issue with Coin Flip and Having Another Woman Drop Her Pants in Open Court Published November 3rd, 2007 Bizarre , Justice , Lawyering , Society A Virginia judge has been removed from the bench after deciding a custody matter with a flip of the coin and ordering another woman to drop her pants in open court. In the first case, Juvenile and Domestic Relations Court Judge James Michael Shull otossed a coin to determine which parent would have visitation with a child on Christmas. In another case over a protective order, he insisted on a woman dropping her pants to inspect an alleged knife wound. After a bailiff asked Shull, “Did you see what that lady had on?” According to the bailiff, Shull replied: “Yeah, a black lacy thing … it looked good, didn’t it?” For the full story, click here In the era of Judge Judy, more real judges are acting like petty dictators in court. For a prior column, click here […]

  3. Victims of UNETHICAL judges are forming support groups on Facebook at http://www.facebook.com/robertagettinger and by contacting avivakbobb.com people are being murdered for profit by judges who turn their cheek when unethical lawyers break the law. Aviva K. Bobb is just one of many judges who LIE, ignore crimes against seniors, allow drugging and falsify documents. Bobb influences police to stop whistle blowers who contact authorities and inform them of her unethical behavior.

  4. I agree completely with your remarks about judge shows. They have little redeeming value. However I’m going to withhold judgment on this one until I see it. I hadn’t realized today was its premiere. I live in northwest Arkansas and stumbled on the drug court broadcast one night as I flipped channels. Ordinarily I would have been glued to the repeat airing of Olbermann at 9pm, praying he’d have Professor Turley on, but I’d seen the live show and I’m sure Keith had foolishly left Turley off the docket that night. So I had that rare opportunity to see what else was on. I was kind of blown away to see thry were televising drug court. That was something new, though the court had been around a few years. This was the real court with the real people, and these real people were, by and large, people who had ordinary lives until they tried methamphetmine, liked it, and found reasons to keep using it. There were cases where meth wasn’t the problem, but they were the exception. While my first reaction was to cringe and wonder if this kind of public exposure wasn’t a violation of the rights of these folks, who were not given a choice in the matter (I’m not a lawyer, if you haven’t guessed). But the proceedings were so riveting and enlightening that I quickly lost my squeamishness.

    Judge Gunn won praise from a lot of quarters well before drug court was put on local access cable. This is an overwhelmingly Republican area, and the notion of a drug court, despite proving its worth elsewhere, was a hard sell. I don’t know if the judge’s skills had anything to do with the decision to fund it on an experimental basis, but I think she was the reason the funding continued. I understand that over 90% of the people who were accepted into drug court have remained drug free. That is exceptional.

    Some of the comments about this judge have no foundation in truth and could not have been made by anyone familiar with Judge Gunn and how she operated her court and handled her function of being really the sole gatekeeper, determining who got in the program and when, or if, they got out (and if they left through a different gate it was to their detriment). A “Judge Folksy-Wisdom Firecracker Sugar-Britches” characterization would be absurd. She bears zero resemblance to that. This is not Nancy Grace, folks. Judge Gunn was 100% genuine. As real a deal as deal could be. She was hard when she needed to be, and tender when empathy was appropriate. She rejected a lot of people that were begging to be accepted into the extremely demanding, months long rehabilitation program, sentencing them instead to hard time in the state prison. She was protective of those who were in the program because she wanted them to succeed. She wouldn’t allow someone who’d exhausted all their opportunities to be an interference to those in whom she was assigning the trust of the court on behalf of the citizens. Everyone the judge accepted into the program was made to understand in no uncertain terms they were being granted the chance — maybe their last chance — and the responsibility to do the hardest thing probably any of them will ever do and reclaim their lives from devastation. Many of these folks began the program while incarcerated and were granted release as they made progress, but under strict conditions. They had to work. They had to remove themselves from the people that shared or enabled their drug use. They had to test constantly. The slightest slip in meeting any of their conditions would immediately put them back before the judge. Sometimes they’d go back to jail within the program. Sometimes they’d be sent to prison. Sometimes they’d get a warning and another appointment with the judge to make sure they were keeping on the up and up. Often she would call the parents or the spouse or someone in the position of being around the person and read them the riot act if they were a contributor to the problems that that put that person in court that day. She always tried to help modify the broader circumstances of a program participant to give them just a little better chance of succeeding. So often people wanted to help but were doing the wrong thing, or they couldn’t see what they could do, and she was great at educating them. Finally, for most of them would come “graduation”. Gunn would call each of them before her and ask them to express their feelings about their accomplishment, sometimes to the audience in the court and specifically to those just starting the program. The Judge would engage them very personally. She knew all about every one of them and their unique circumstance. If they had children she knew their names. It was quite amazing. To each one individually she expressed the court’s pride in their achievement and the stern warning to keep control of the circumstances of their life, for the sake of never returning before the judge, but also because they had responsibilties and obligations to the people who loved them, who employed them, and to their community who absorbed the cost both of their addiction and their recovery. I’m a 51 year old lug who doesn’t often get misty-eyed, but it was impossible for me not to tear and not to cheer for these folks.

    So to the previous commentor who finds himself “… pretty well satisfied that a judge that is more interested in money than justice or ethics has removed herself from the bench. She’s done justice and America a favor”, I say you would find your crass presumption embarrassingly wrong if you had actual familiarity with this lady and the work she’s done. At no time did I ever see or hear of Judge Gunn do anything self-serving, exploit her exposure to seek a TV deal like that Anna Nicole Smith custody trial judge, or anything remotely of the kind. She had a long career and did more genuine good for people, for her community, her country, and for justice, than most could ever hope to do. Drug Court was once again under threat of losing its funding, even as there was begimning to be a buzz about it nationally. I’m not at all surprised that this program drew attention beyond the limited range of Jones TV (a community access station carried by Cox Cable in their local system but not affiliated with them — it originates within a community center that’s funded by the private gift of a local couple who built a successful trucking business and gave much back to the local folks, and continue to do so though they’ve both passed on). If I were someone on the lookout for talent and for a concept that would make a successful show I would feel lucky to have stumbled upon Washington County, Arkansas, Drug Court and I would have made a hard pitch to convince the judge she wanted to be a tv star. Wouldn’t most people would be flattered and tempted and probably go for it? Professor Turley often answers when TV call, I’ve noticed. I wouldn’t dream of impugning his motive. He is usually asked, I’m sure, because of his reputation for excellence in legal interpretation and expertise on civil liberties, also because he is gifted at bright, succint commentary, and finally for his dashing, highly telegenic appearance. He knows he may not get to say everything he wants to say, and if he’s taped his words may be edited in a way that misrepresents him, or maybe a soundbite will be picked out that could even be embarrassing without context. But he goes, hoping to accomplish something, not just for the thrill of, say, the car and driver sent to whisk him to Manhattan and perhaps even a small compensation. So surely anyone can understand how it could be easy for Judge Gunn to convince herself that she could do something most people never have a chance to do, that could be quite lucrative, and, if done right, could be of benefit to some people who may be struggling with drug abuse. If the show can successfully convey the sorrow and ruin that a drug like meth not just can but will bring to someone’s personal life, how devastating it is for their loved ones, and the ways it costs society, it will have a thousand times more merit for its existence than Judge Judy or Larry Joe or any one of those “judge shows”.

    Having said ALL this, I sadly still have little faith that the show will elevate the concept of drug court and be a cause for its expansion into communities where it doesn’t exist but might do good. I have little faith that, if its successful and the judge becomes famous that it won’t go to her head to some unattractive degree. But if there is one person with a chance of bringing integrity into the judge show TV genre, it’s Judge Gunn. If anyone could use that platform to become an advocate for one of the few things that actually has a powerful positive social impact, its Judge Gunn. The way this whole thing came about is nowhere near as tawdry as Professor Turley sees it. While I don’t know anymore about the courthouse than that the state attorney general’s opinion was sought and he determined it was acceptable usage. Also the courthouse had recently gone through extensive renovation and this presented an unexpected boon, a unique opportunity to generate revenue to recover some of the cost to the relief of taxpayers. I think the county officials that were negotiating use of the courtroom with the production company were thrilled when, after naming their price, were countered with substantially more than they were asking.

    No one around here begrudges Judge Gunn for taking the opportunity that came her way. Really, everyone should hope this show is done in an honorable way. And that something good can come of it. Some of you folks might benefit from a little introspection and try to use your harsh where it is deserved, when it has a basis in reality. And maybe soften your stereotypes a little.

  5. Hello,

    I have gone through the Judicial Committe and other resources to no avail. So I will now hope that you can aid me in this misjudgement.

    Since I learned that no one can undo a judgement, it perplexes me that a Judge was allowed to do it, and there seems to be no way to rectify the damage done nor any way to be compensated for my loss. I had a judgement in divorce and I went to have this judgement enforced, this particular Judge ( not the original one) gave my ex-husband a complete new trial, no one asked for one, I asked for enforcement and she undid not only the reinforcement but undid the judgement. I can not be the only one this has happened to and I need help as I can not afford anymore lawyer fees ( just one of the many issues this judge has cost me) The Judicial committe wont help as they can not undo her judgement, NON ONE CAN UNDO A JUDGEMENT without proper procedure such as an Appeal (Fair enough). SO since no one can undo it with out the proper proedure why did this Judge do it. . She also should not have been able to overturn a judgement, especially when it WAS NOT even requested and previous request for reconsideration were denied. This gave my husband an instant Appeal without even so much as a verbal request. The court system failed me and caused me much in monatary, emotional, and health as well as other damages.

    Much appreciation for your anticipated help,

    Lisa Jorge

  6. “* In Kentucky, Judge Michael Caperton recently allowed drug and alcohol offenders to skip drug counseling if they agreed to go to 10 church services. A pastor, like a divinely ordained probation officer, signs off on the completion of this obligation.”

    What an easy way to pay your debt to society.
    Let’s hope this is not situation that is followed by others.

  7. Someone please tell me what our world is coming too. When a man who has missed court because someone called saying they are the commonwealth attorney’s office and the date was changed is arrested and denied bail meanwhile he is setting in a cell with a man who has a class 6 felony because he called the pharmacy posing as a doctor prescribing him a narcotic and then tries to pick it up and he is released on his own rec. Then after everyone fights for him and gets another judge to give him bail the judge who issued the arrest gives him 4 days in jail and a criminal record because he can. And this man was the witness in the case not the criminal in the case he missed court for.

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