Is shaming a legal form of punishment for crime?

Lyle Denniston, the National Constitution Center’s adviser on constitutional literacy, looks at the revival of public shaming as a punishment, and why a Pennsylvania court nullified part of such a sentence for a former justice.

The statement at issue:

“We must conclude that while a sentencing court has wide latitude to design conditions to assist in efforts at rehabilitation, no condition may be imposed for the sole purpose of shaming or humiliating the defendant…We note that the highest courts in at least five sister states have reached similar conclusions, namely that shaming is not reasonably related to rehabilitation and may in many circumstance overshadow any possible rehabilitative effects that the punishment might otherwise provide.”

– Excerpt from a decision Aug. 21 by the Pennsylvania Superior Court, nullifying a part of a criminal sentence that required a former state judge to send to all other judges in the state a photograph of herself wearing handcuffs, with an apology for her crimes written on the photo.

We checked the Constitution, and…

With the Constitution’s Eighth Amendment in the background, judges who impose sentences on an individual convicted of a crime are supposed to know that there are limits on the kind of punishment they may mete out. Not many modern forms of criminal sentencing fail the Eighth Amendment test that bans “cruel and unusual punishment,” but the underlying sentiment of that provision is intended to impose a continuing restraint on a judge’s discretion.

In recent years, though, there has been a noteworthy revival of an ancient but questionable form of punishment: public shaming. Convicted individuals, of course, are no longer required to walk around in public wearing a “scarlet letter,” or some other display of their wrongdoing, for all to cast scorn upon them. And no longer do criminals have to have their hands placed in “stocks” in the village square for a rather painful form of public humiliation.

But judges in recent times have fashioned various new forms of shaming, including measures that seek to warn the community at large that someone dangerous is in their midst. A conspicuous example of that, of course, is the requirement that sex offenders’ identities and addresses be widely publicized on a public registry. That, in fact, is a federal law, and its constitutionality has gained the approval even of the Supreme Court.

But however justified that particular form of punishment may be, judges are finding other ways of adding to their sentences mandates for convicted individuals to take steps to publicize their misdeeds, often by some form of apology to the victims. Such a mandate is added onto any fine or jail or prison time imposed on the individual, or in place of jail time. Often, the theory is that an apology helps to rehabilitate the individual, by making sure they take personal responsibility for having done wrong.

The practice has grown up in part because there has been a spreading development in the criminal law of showing more sympathy to victims of crime, and, in fact, to give victims an increasing role in shaping the actual forms of punishment to be imposed.

It is possible, though, for this to go too far, and now a Pennsylvania court – echoing decisions by other state courts – has imposed a definite limit. It did so in the high-profile prosecution in Pennsylvania of a member of the state Supreme Court, Justice Joan Orie Melvin.

She was convicted in February of last year in Allegheny County Common Pleas Court of misusing public funds and her court staff and the staff of her sister, a member of the state legislature, to help Orie Melvin in two elections for a seat on the state’s highest court – unsuccessfully in 2003, successfully in 2009. A jury convicted her of six criminal counts, essentially of abusing the public trust.

When Common Pleas Judge Lester G. Nauhaus of Pittsburgh sentenced Orie Melvin, to serve three years on house arrest, to do public service in a soup kitchen, and to pay a fine, he added other conditions. Among them: She had to resign from her seat on the state Supreme Court and was barred from using the title of “Justice,” for at least the next three years.

And the judge imposed two requirements for apologies. The first ordered her to write letters of apology to every member of her judicial staff who had done illegal work for her during her election campaigns.

If Judge Nauhaus had stopped there, that part of the sentence would have been considered an entirely appropriate adjunct to her need for rehabilitation (and, indeed, that part was upheld last week by a higher court, the Pennsylvania Superior Court).

But the sentencing judge went further: He ordered Orie Melvin to sit for a photo by a court photographer, showing herself wearing handcuffs. On the photo, which the former judge was required to send to every state judge in Pennsylvania, she was to write her apology for defiling her judicial office.

The sentencing judge apparently was troubled that Orie Melvin had continued to insist that she had done nothing wrong. He told her: “You have consistently refused to accept any responsibility for any of the harm you have done to the people who worked with you, the electoral process, to your colleagues in the judiciary, and, most of all, your family.”

In last week’s decision partly upholding her challenge to the sentence, the Pennsylvania Superior Court nullified the photo apology, finding it a violation of state sentencing law (Orie Melvin had not raised an Eighth Amendment claim). Calling the photo apology an “unorthodox gimmick,” the Superior Court said that “the trial court’s use of the handcuffs as a prop is emblematic of the intent to humiliate Orie Melvin in the eyes of her former judicial colleagues… . It was solely intended to shame her.”

The requirement, the decision added, could not have actually been intended to contribute to Orie Melvin’s rehabilitation, but rather was only “another form of punitive sanction – one not authorized under the Sentencing Code.” Shaming, it said, is not “reasonably related to rehabilitation,” as “the highest courts in at least five other states” had also concluded.

This was not a constitutional decision. But it did infuse the state’s sentencing code with the caution that unusual – or, as the court put it, “unorthodox” – criminal punishment is to be avoided.

Philadelphia’s National Constitution Center is the first and only nonprofit, nonpartisan institution devoted to the most powerful vision of freedom ever expressed: the U.S. Constitution. Constitution Daily, the Center’s blog, offers smart commentary and conversation about constitutional issues in the news, drawing insights from America’s history and a variety of expert contributors.