Morgan Blair James
Public shaming is not only a popular punishment among unhappy pet owners whose dog chewed on their favorite pair of shoes, but it is also becoming popular among judges and legislatures across the United States. With the return of public shaming, numerous questions remain unanswered surrounding judicial discretion and limitations to shaming punishments.
Within the Sixth Circuit, Ohio is most frequently reported by the media for using public shaming. In 2005, a state judge ordered two teenagers who defaced a stolen statue of Jesus to parade through town with a donkey and a sign reading “sorry for the jackass offense.”FN1
A few years later, a different Ohio state judge ordered a woman to hold a sign stating “[o]nly an idiot would drive on the sidewalk to avoid a school bus.”FN2 And most recently, the same judge ordered a man who threatened a police officer on a 911 call to stand outside a police station with a sign that said “I apologize to Officer Simone & all police officers for being an idiot calling 9-1-1 threatening to kill you… it will never happen again.”FN3 While these instances made news headlines, no decisions or appeals have been made to determine the legality of these state judges’ orders.
A first reaction to public shaming is shock and disbelief followed quickly with the questions “can a judge really do that?” and “what limits the judges’ discretion in these circumstances?” While the answers to these questions are still somewhat undetermined, United States v. Gementera shed some light on the issue. In Gementera, the Ninth Circuit held that ordering a man to stand outside the post office with a sign stating “I stole mail” did not violate the U.S. Sentencing Reform Act and that public shaming is permissible.FN4 Importantly, the court noted that the Sentencing Reform Act afforded federal judges with broad discretion when determining appropriate conditions of supervised release and probation so long as these conditions are reasonably related to the nature and circumstances of the offense and are imposed for a permissible purpose.FN5
While Gementera provided some guidelines, there are still lingering questions about the use of public shaming and judicial discretion. Should scenarios like ordering two teenagers to walk with a donkey through town holding a sign that says “sorry for [the] jackass offense” be distinguished from ordering a man to hold a sign outside the post office that only says “I stole mail”? Additionally, since the Supreme Court denied certiorari for Gementera and the wide variation in state sentencing laws, should there be more guidance by state and federal legislatures regarding the use of public shaming and the limits to judicial discretion?
FN1. Johnathan Turley, Shame on You, Wash. Post, September 18, 2005, available at http://www.washingtonpost.com/wp-dyn/content/article/2005/09/17/AR2005091700064.html.
FN2. Doyle Murphy, Ohio Man Order to Carry ‘Idiot’ Sign after Threatening Cops, N.Y. Daily News, September 2, 2013, available at http://www.nydailynews.com/news/national/truth-advertising-man-carries-idiot-sign-threats-article-1.1444524.
FN4. United States v. Gementera, 379 F.3d 596, 600 (9th Cir. 2004).
FN5. Id. at 601.