Metropolitan News-Enterprise


Tuesday, August 10 , 2004


Page 3


Ninth Circuit Upholds ‘Shaming’ as Punishment for Theft of Mail


By Kenneth Ofgang, Staff Writer/Appellate Courts


A supervised release condition requiring a defendant to stand in front of a San Francisco post office wearing a signboard stating “I stole mail. This is my punishment” was upheld yesterday by the Ninth U.S. Circuit Court of Appeals.

The condition imposed on Shawn Gementera by U.S. District Judge Vaughn Walker of the Northern District of California was “was somewhat crude,” Judge Diarmuid F. O’Scannlain acknowledged. But the jurist concluded that it was reasonably related to rehabilitation, deterrence, and public protection and did not violate Gementera’s constitutional rights.

Senior Judge Eugene Siler of the Sixth Circuit, sitting by designation, joined in the opinion. Judge Michael Daly Hawkins dissented, calling the sentence a throwback to the days of stocks and pillories.

Gementera and a friend were arrested three years ago after a police officer observed them pilfering letters from mailboxes. Prosecutors said he had 42 pieces of stolen mail in his possession, including a $1,500 U.S. Treasury check that he hoped to cash.

Gementera pled guilty to mail theft as part of a plea bargain; a charge of receiving a stolen U.S. Treasury check was dismissed.

Walker sentenced him to two months’ imprisonment, the low end of the guidelines range, plus three years’ supervised release. The conditions of release initially required that he stand in front of the post office with the signboard for 100 hours, but the judge later reduced that to a single, eight-hour day while imposing additional community service requirements, one of which was that Gementera speak at three high schools about the consequences of committing a crime.

He was also ordered to write letters of apology to the people whose mail he stole. His motion to set aside the signboard condition was denied by Walker in March of last year.

Later that month, prior to his surrender to serve the two-month prison term, he was charged with possession of stolen mail. His two-year sentence for that crime was not at issue in yesterday’s appeal.

In concluding that the punishment was reasonable, O’Scannlain distinguished cases rejecting other forms of “shaming” as punishment.

Among those cases was People v. Hackler, decided by the Fifth District Court of Appeal.

The court there rejected since-retired Tulare Superior Court Judge  Howard Broadman’s order that a defendant wear as an outer garment a court-supplied T-shirt whenever he was outside his home during the first year of probation. The shirt bore on the front the printed statement, “My record plus two six-packs equals four years,” and on the back the statement, “I am on felony probation for theft.”

O’Scannlain explained in a footnote:

“By contrast, Gementera’s condition was sharply limited temporally (eight hours) and spatially (one post office in a large city), eliminating any risk that its effects would similarly spill over into all aspects of the defendant’s life. Indeed, the district court’s imposition of the condition in lieu of lengthier incarceration enables Gementera to enter the private labor market.”

The judge went on to note the existence of “a vigorous, multifaceted, scholarly debate on shaming sanctions’ efficacy, desirability, and underlying rationales.” Because trial judges are entitled to great flexibility in fashioning supervised release conditions, O’Scannlain  said, such conditions should be upheld if as part of “a set of conditions...also including reintegrative provisions [that] would better promote this defendant’s rehabilitation and amendment of life than would a lengthier term of incarceration.”

Hawkins argued in dissent that the purpose of the condition was humiliation, not rehabilitation, and that it therefore violated the Sentencing Reform Act. He also said it was “simply bad policy.”

Hawkins wrote:

“A fair measure of a civilized society is how its institutions behave in the space between what it may have the power to do and what it should do. The shaming component of the sentence in this case fails that test.”

The case is United States v. Gementera, 03-10103.


Copyright 2004, Metropolitan News Company