Sentencing Class @ OSU Moritz College of Law

Student guest-post asks "Shaming as a punishment… is society too soft to re-embrace it?"

Here is the final "top-flight" guest-post material I received before the holidays.  Though I will not be posting any more guest-posts for extra credit, students can keep earning class participation credit by commenting on this and other posts until the start of classes in January:

We no longer recognize just the first place winner, but also the second, the third, the fourth…well you get the idea.  We have gone soft and part of that softness means we no longer like to shame people for their mistakes.

However, Texas State District Judge Kevin Fine has a different idea.

Daniel Mireles and his wife, Eloise Mireles, stole $250,000 from the Harris County Crime Victim’s fund. They were sentenced to each spend six months in jail—one month a year for six years, pay restitution and 400 hours of community service.

But that was not all.  Judge Fine also decided as part of the sentence that they must both wear signs for five hours every weekend, him on Saturday and her on Sunday, near the Galleria mall in Houston. The sign says: “I am a thief.  I stole $250,000 from the Harris County crime fund. Daniel Mireles” -– here is a link to video

But wait…Judge Fine was still not done with them. They must also post signs outside their residence stating “The occupants of this residence are convicted thieve. They stole $250,000 from the Harris County Crime Victim’s fund.  Signed, Judge Kevin Fine.”

The prosecutor said he will conduct random drive-bys in order to ensure compliance. More story here.

I for one say good job Judge Fine.  I think it is high time that public shaming become a more common form of sentencing alternative.  Obviously this will not work in all cases, but with first time offenders and people who are members of the community it can be more effective than a few weekends in jail, a fine or community service.

Just a couple of the obvious benefits in my opinion:

1) Help reduce prison overcrowding and save money

2) Effectively informs the public about crimes and punishments—general deterrence

3) Creates a greater long-term impact on the offender then a fine or community service—specific deterrence

Questions:

Is society capable of toughening back up and embrace public shaming or is it for naught in today’s world of no one should be ridiculed in public—no matter how just the cause.

Can public shaming be transferred to the online community where an offender must post a status on Facebook weekly about his crime? Would this be more effective for juvenile and young adult offenders?

Ohio requires in certain circumstances special yellow colored license plates for drivers to display who have been convicted of DUI. Is this OK because it is less personal and likely not even noticed by others, whereas the shaming in Texas might be less tolerable because it is in the public’s face?

If castration was a good idea for Thomas Jefferson, why not for Richard Graves?

We concluded our first week's class discussion with questions about whether and why castration (either physical or chemical) could and would be a fitting punishment for convicted rapist Richard Graves.  As a preview of second week topics, I encouraged considering whether answers to these questions might be changed or significantly influenced if (a) Graves' victim urged this punishment, and/or (b) Graves himself embraced this punishment (perhaps in lieu of additional years in prison).  

For those with a visceral negative reaction to castration as a form of punishment, I suggest reflection on Michel Foucault's astute insight that, in modern times, we seem far more content to "torture the soul" through long terms of imprisonment than to "torture the body" through physical punishment.  In addition, for those with a legalistic negative reaction that the US Constitution would never permit such a punishment, I suggest reflection on the fact that few forms of punishment have ever been the subject of Supreme Court review.

Moreover, for anyone drawn to an originalist approach to constitutional interpretation, a fascinating document authored by Thomas Jefferson suggests at least some Framers approved and endorsed castration as a punishment for some crimes.  This Jeffersonian document, titled "A Bill for Proportioning Crimes and Punishments," includes these notable passages:

Whereas it frequently happens that wicked and dissolute men resigning themselves to the dominion of inordinate passions, commit violations on the lives, liberties and property of others, and, the secure enjoyment of these having principally induced men to enter into society, government would be defective in it's principal purpose were it not to restrain such criminal acts, by inflicting due punishments on those who perpetrate them; but it appears at the same time equally deducible from the purposes of society that a member thereof, committing an inferior injury, does not wholy forfiet the protection of his fellow citizens, but, after suffering a punishment in proportion to his offence is entitled to their protection from all greater pain, so that it becomes a duty in the legislature to arrange in a proper scale the crimes which it may be necessary for them to repress, and to adjust thereto a corresponding gradation of punishments.

And whereas the reformation of offenders, tho' an object worthy the attention of the laws, is not effected at all by capital punishments, which exterminate instead of reforming, and should be the last melancholy resource against those whose existence is become inconsistent with the safety of their fellow citizens, which also weaken the state by cutting off so many who, if reformed, might be restored sound members to society, who, even under a course of correction, might be rendered useful in various labors for the public, and would be living and long continued spectacles to deter others from committing the like offences.

And forasmuch the experience of all ages and countries hath shewn that cruel and sanguinary laws defeat their own purpose by engaging the benevolence of mankind to withold prosecutions, to smother testimony, or to listen to it with bias, when, if the punishment were only proportioned to the injury, men would feel it their inclination as well as their duty to see the laws observed.

For rendering crimes and punishments therefore more proportionate to each other: Be it enacted by the General assembly that no crime shall be henceforth punished by deprivation of life or limb except those hereinafter ordained to be so punished....

Whosoever shall be guilty of Rape, Polygamy, or Sodomy with man or woman shall be punished, if a man, by castration, if a woman, by cutting thro' the cartilage of her nose a hole of one half inch diameter at the least....

All attempts to delude the people, or to abuse their understanding by exercise of the pretended arts of witchcraft, conjuration, inchantment, or sorcery or by pretended prophecies, shall be punished by ducking and whipping at the discretion of a jury, not exceeding 15, stripes....

I highly encourage everyone to read the entire Jefferson punishments bill: it provides not only a perspective on crime and sentencing at the time of the Founding, but it also spotlights the array of punishments used before the birth of modern prisons.