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Nov 06 2012

Woman Sentenced to Wear Sign Declaring Herself an “Idiot” – Constitutional?

A Cleveland OH woman caught on camera driving on a sidewalk to avoid a school bus that was unloading children will have to stand at an intersection wearing a sign saying: “Only an idiot drives on the sidewalk to avoid a school bus.” Court records show a Cleveland Municipal Court judge yesterday ordered 32-year-old Shena Hardin to stand at an intersection for two days next week with the sign. The judge ordered her to wear the sign from 7:45 a.m. to 8:45 a.m. both days.

“Shaming” punishments were common in the United States before the advent of model criminal codes and the development of constitutional limitations in sentencing. In colonial times, public displays of guilt were common – Scarlet Letters, Stocks, Pillories, etc.

The Scarlet Letter

Most of the most severe shaming punishments were then abandoned as either ineffective or unconstitutional under the 8th Amendment’s prohibition of cruel and unusual punishments. 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 judges will impose their own quirky brand of justice by ordering citizens to parade with various signs or engage in acts they would not otherwise do. Consider a few examples, all from state or local courts:
· In Kentucky, Judge Michael Caperton allowed drug and alcohol offenders to skip drug counseling if they agreed to go to 10 church services.

· In Texas, 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 a seven-year sentence for cocaine possession and driving under the influence in exchange for the defendant’s 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, had defaced a statue of Jesus they stole from a church’s nativity scene. In exchange for the lesser sentence, 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 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 that “under Tennessee law it appears to be legal.” Brown eventually parlayed his notoriety into his own TV show.

Which raises why these sentences are troublesome. Judges seeking their 15 minutes of fame are likely to use these shaming sentences as a way to garner a headline – or like Judge Brown – a TV show. They also allow for inconsistent sentences to be applied at a judge’s whim. Research shows, for example, that young people are more prone to being given these types of sentences than adults. They also circumvent what the legislature has decided are appropriate sentences for particular crimes. In Ms. Hardin’s example, some folks might say that wearing a sign for four hours is not enough punishment for her crime and only serves to embarrass her and not correct her conduct or prevent future similar behavior. Community service, restitution, counseling are other non-jail alternatives that are legally proscribed and enacted if a judge wants to punish someone but not put them in jail.

Shaming sentences may make for funny headlines and interesting water-cooler chatter but they have no place in a modern criminal justice system.

They are generally however upheld as constitutional. If they are limited in time and scope like Ms. Hardin’s sentence, they are not considered cruel and as these examples show they are no longer “unusual.”

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