*1 RE- district court and testimony, decision of the extensive YE Even without to remand disability benefits MAND with instructions entitlement Benecke’s an Security for testimony establishes of Social The VE Commissioner is clear. perform unable to Benecke would award of benefits. telemarketer, a seden- as a past her work demands. physical limited
tary job with (remand- Reddick, at 729-30 of benefits immediate award
ing for an testimony expert estab- vocational
where perform the claimant could
lished that job, was classified which previous
her work). There is no basis on sedentary America, UNITED STATES ALJ, the evidence of crediting an Plaintiff-Appellee, physical and serious pain severe Benecke’s
limitations, that Benecke could conclude sedentary job, a different perform could GEMENTERA, Defendant- Shawn testimony light of the YE’s especially Appellant. telemarketing employers make con- No. 03-10103. disabled to accommodate siderable efforts quite activities are workers. Benecke’s Appeals, United States Court difficulty. out with limited and carried Ninth Circuit. dating appli- Benecke’s pre Doctors’ notes May Argued and Submitted attempts manage her cation document that she at- and demonstrate pain her Aug. Filed to work unsuccessfully to return tempted disease, found but after the onset her treating to do so. Several
herself unable that Benecke would
physicians have stated employment her to maintain unable estab- Because the evidence
condition. be unable to
lishes that Benecke would managing her employment
maintain while for further ad-
pain fatigue, remand serves no useful proceedings
ministrative
purpose and is unwarranted.
III. CONCLUSION held, the im-
As the district ALJ the evidence.
properly discredited much of remaining issue that
Because there is no
must be it is clear resolved and
record that Benecke is entitled to disabili- benefits,
ty that the district we conclude by remanding
court abused its discretion proceedings further administrative
rather than for an immediate award of Accordingly,
benefits. we REVERSE the *2 Wachtel, Francisco,
Arthur K. CA, San argued appellant the case for the and was on the Maitreya briefs. Badami was also on the briefs.
Kelley Snyder, Brooke Department U.S. Justice, DC, Washington, argued the case for the appellee and was on the briefs. Ryan, Kevin Attorney, States Horsley Hannah Mas- Anne-Christine sullo, Attorneys, Assistant United States were also on the briefs. Falk,
Elizabeth M. Office of the Federal Defender, CA, Francisco, Public San ar- gued the case amicus curiae Federal Public Defender for the Northern District Barry and was on the California briefs. Portman, Defender, J. Federal Public was also on the briefs. age At nine- steadily more serious.
ing of misdemeanor teen, he was convicted convicted He twice mischief. criminal suspended with a twenty driving age *3 a domestic twenty-two, age At license. driving convictions led to dispute SILER, JR.,* O’SCANNLAIN, Before: failing pro- to and for license suspended a Judges. HAWKINS, Circuit By responsibility. of financial proof vide O’SCANNLAIN, Judge: was misde- the conviction twenty-four, Circuit arrests and cita- battery. Other meanor super- of a legality We must decide Investiga- Presentence in the tions listed a con- requires release condition vised drug possession included Report tion day standing a spend thief to mail victed driving offenses additional paraphernalia, signboard wearing a post a office outside (most driving on a li- of which involved my punish- mail. This stating, “I stole to take for his failure suspended cense ment.” twenty- tests), and, after his soon chemical a without birthday, taking vehicle fifth I consent. owner’s pilfered letters Gementera Shawn 25, 2003, Judge Vaughn February On Francisco’s along San mailboxes several Court District of the United States Walker police May A on Fulton Street sen- District of California for the Northern episode immedi- who observed officer Sentencing The Gementera. U.S. tenced partner and his ately detained Gementera eight to months range was Guidelines two Choi, been crime, who had Andrew incarceration; sentenced Judge Walker jacket into his as letters stuffing the stolen to the lower bound Gementera After watch. anxiously kept Gementera incarceration imposing two months range, plea indictment, entered Gementera supervised release.1 He years and three pled to which he pursuant agreement supervised conditions of re- theft, see 18 U.S.C. guilty to mail lease. second dismissed a government required Gementera One such Treasury U.S. receiving a stolen count of community ser- 100 hours of “perform to § 641. check. See 18 U.S.C. vice,” “standing in front of consist of to first county city was not Gementera’s of San facility The offense in the postal only which in a sandwich board Though with the law. Francisco with encounter time, mail. This declares: T stole large at the Gement- letters twenty-four years old ”2 later my punishment.’ for a lengthy history criminal era’s the sentence a motion to correct grow- filed and was youth, man of his relative * Siler, Jr., for himself at that he has set the course Eugene The Honorable E. Circuit, facing more age going to be a lot serious Judge Sixth he's States Circuit in the future.” sitting by designation. charges that, while it would explained court sentencing, judge addressed Gement- 2. At impose home strongly have been inclined you the fact that also discussed "[WJe've era: histo- confinement Gementera’s criminal had way very graphic to be in a better, need reminded "given the ry felt that been you exactly the crime committed means what has been unpromising that the defendant road is, you standing society. That idea following, have a taste needs to he one, post with a board office out front of but he custody, a brief federal be sure somebody labeling you who has stolen he continues needs to that if understand removing sandwich mail; board condition. stole this is my punishment,” in 35(a). See Fed.R.Crim.P. front of a San Francisco postal facility identified by officer. For Judge Walker modified the af- sentence safety of defendant general pub- inviting ter parties present both “an lic, postal facility designated shall be alternative form or forms of service one employs one or security more comport would better with the aims of guards. Upon showing by the court.” lieu of sign- the 100-hour that this condition would requirement, likely impose board the district court im- upon defendant posed four-part psychological special harm condition in its effect or terms, stead. result Three new proposed unwarranted jointly risk of *4 counsel, defendant, mandated harm to the the public or postal defendant postal patrons observe employees, visiting probation the “lost or may officer missing window, mail” or write letters of withdraw modify this condition or apology any to apply identifiable victims of his to the court to modify withdraw or crime, and deliver several lectures at a this condition.
local school.3 It also included scaled- On March 2003, the court denied the down version of signboard require- Rule 35 motion and amended the sentence ment: as described above. timely Gementera ap- The defendant shall perform 1 day of 8 pealed.4 total of community hours service during II (i)
which time he shall either wear a two- (ii) sided board-style sign sandwich or We first address Gementera’s ar carry a large sign two-sided stating, “I gument eight-hour sandwich case, replied, mail.” Gementera "If that's the United States to identity determine the I would post stand in front of a office with a all ascertainable victims of the defendant’s my penalty board as crime; for the crime that I did having persons, identified those long commit. And as get as I can home compose defendant shall per- address get my detention so family I can togeth- back sonal letter to persons each of these individ- er, get back on track and my- rehabilitation ually expressing defendant’s remorse for incarceration, self.” imposed After the court specific per- conduct harmed detention, rather than home Gementera's son; provide the defendant shall each such counsel asked that changed the 100 hours counsel, victim with the address of his "up to 100 hours at the discretion of the through any whom victim who wishes to probation request officer.” That was denied. directly contact the may defendant do so. Though the acknowledged had explicitly c.The defendant shall three deliver edu- humiliation, that the condition would cause cational at three lectures Francisco San challenge did the condition’s schools, high proba- be identified legality nor explain did he ask the court to or probation tion officer and under the offi- elaborate purpose its at hearing. the first direction, cer’s in which the defendant shall committed, describe the crime he has ex- parts 3. The first four-part special three press his remorse for his criminal conduct condition mandated: and articulate to the students in attendance shall, a. The defendant at the direction of how his conviction sentence af- officers, probation spend days 8of plans. fected his life and future postal total hours facility each at a where window, there is a observing lost found 4. Gementera was ordered to surrender on postal patrons 12, 2003, who visit that March prior window to 2003. On March mail; inquire surrender, missing about lost or to his Gementera was arrested for shall, b. The mail, possession with the assistance of stolen he was counsel, carefully all examine Rule 16 convicted and a twenty-four received month discovery possession materials in the of the sentence. 3583(d). Thus, comply Sentencing U.S.C. condition violates board 3583(d). any requirement, condition must be Act.5 18 U.S.C. this Reform “reasonably to “the related” nature Sentencing Act affords Reform histo circumstances of offense in fashion broad discretion district courts ry and characteristics defendant.” supervised ing appropriate 3553(a)(1). Moreover, See 18 U.S.C. release, mandating that such condi while “reasonably both related” to and must be objectives. addi legitimate tions serve greater deprivation liberty “involve no as a “any set forth discre tion to reasonably necessary” to “afford than is section tionary condition of conduct,” deterrence to criminal adequate (b)(12) 3563(b)(1) (b)(10) and through 3553(a)(2)(B), see at “protect id. (b)(20),” explicitly au the statute through defendant,” from further crimes of see “any impose other thorizes the court 3553(a)(2)(C), id. the de “provide at appropriate.” to be condition it considers or voca fendant with needed educational added). § 3583(d)(emphasis 18 U.S.C. care, training, cor tional medical other conditions, however, may only special Such most rectional treatment effective “to the extent that condi 3553(a)(2)(D).6 Ac manner.” See id. *5 tion— statutory three cordingly, legitimate (1) reasonably related to factors deterrence, purposes protection 3553(a)(1), (a)(2)(B), set forth section analy public, and rehabilitation frame our (a)(2)(D); (a)(2)(C), and Rearden, E.g., sis. United States v. 349 (2) greater deprivation of involves no (9th Cir.2003); 608, 618 United States F.3d reasonably necessary than for liberty (9th T.M., 1235, v. 330 F.3d 1240 Cir. set forth section purposes 2003).7 3553(a)(2)(B), (a)(2)(C), (a)(2)(D); and and bounds, recog- have Within these flexibility any pertinent poli- with nized the and considerable dis- is consistent im- cy Sentencing issued cretion district courts exercise to statements release, pose Commission supervised up to 28 U.S.C. conditions of pursuant 994(a)”; including upon limits exercise generally supervised Though statutory underlying 7. reviews re authorities The court discretion, abuse supervised lease conditions for see probation re conditions of Williams, 1045, distinct, States v. 356 F.3d United compare lease are 18 U.S.C. (9th Cir.2004), though 1052 we review de 3583(authorizing supervised § release condi Sentencing interpretation novo the tions) 3563(authorizing § U.S.C. 18 Guidelines, Garcia, v. see United States 323 conditions), probation supervised the court’s 1161, Cir.2003), (9th F.3d 1164 and [w]heth jurisprudence release often relied has ” 'illegal,' imposed er see the sentence was See, authority probation context. 1446, Fowler, United States v. 794 F.2d 1449 Hurt, 1033, e.g., v. United States 345 F.3d (9th 1986), example, by exceeding "the Cir. (9th Cir.2003); Pinjuv, 1035 United States v. permissible statutory penalty crime[] for the 1125, (9th Cir.2000); 218 F.3d 1131 United [by being] the Constitution." violation Bee, 1232, (9th F.3d States 162 1234-35 Johnson, 941, United States v. (9th 988 F.2d 1998). context, probes Cir. In that the court 1993). Cir. extent objectives serve "dual of rehabilitation Any consistent with condition must public safety.” Sentencing policy See v. Con state- United States Commission’s 3583(d); suelo-Gonzalez, 259, (9th § ments. See U.S.C. U.S.C. Cir. 521 F.2d 994(a). § argu- 1975) parties (en banc). raised respect requirement. ments with to this rights. fundamental See 18 U.S.C. A 3583(d) § (granting authority impose Gementera first urges that the condition “any other condition it considers to be an impermissible purpose appropriate”); Hurt, States v. United of humiliation. 3553(a). 18 U.S.C. (9th Cir.2003) (“[T]he dis- points He to certain remarks of the district trict court ... has wide discretion to act in the first sentencing hearing: the interest of the defendant pub- and the lic.”); [H]e needs to understand Bolinger, States v. the disapprov- (9th (“The al that Cir.1991) society has for this kind of sentencing con- duct, and judge that’s the has broad idea discretion in behind the hu- setting pro- miliation. conditions, bation And it should including restricting fun- be humiliation of having to stand rights”). reflects, damental This in part, be labeled in front of people greater coming their knowledge experience going from a post office particular somebody with the who offenders has before them. stolen have, mail. for example, We upheld conditions barring possession of sexually stimulating According Gementera, remarks, these material, Bee, United States v. 162 F.3d among others, indicate that the district Cir.1998), with mi- contact court viewed humiliation as an end in itself
nors,
id., association or membership in and the
purpose.
condition’s
“motorcycle clubs,” Bolinger,
F.2d at
Reading the
context,
record in
internet,
and access
Rearden,
to the
however, we cannot but conclude that the
district court’s stated
aligned
rationale
*6
course,
Of
the district court’s dis
permissible
statutory objectives. At
cretion,
broad,
while
is
sig
limited —most
the second sentencing
when
hearing,
the
here,
nificantly
by the
require
statute’s
sentence was amended to
is
what
now
ment
any
that
condition reasonably
us,
relate
before
the court explained: “[U]lti-
a legitimate
statutory purpose.8
mately,
“This
objective
is,
the
one,
here
to deter
is applied
test
a two-step process; first,
in
conduct, and,
criminal
two,
number
to re
this court must determine whether
the
habilitate the offender so that after he has
sentencing judge imposed the conditions paid
punishment,
his
reoffend,
he does not
permissible
for
purposes, and then it must
public
and a
expiation
having
offended
determine whether the
is,
conditions are rea
or
be,
at least it should
in
rehabilitating
sonably related to the purposes.” United
its effect.” Although,
general,
criminal
(9th
States v. Terrigno,
371,
838 F.2d
punishment “is or at least
humil
should be
Cir.1988).
appeal
Gementera’s
implicates
iating,” the
emphasized
court
that “[h]u-
steps
analysis.
both
of the
miliation is
the point.”
not
The court’s
points
8. Gementera
to several
(making
cases in
reparations
only
for crime to which
a
our sister
found
circuits
that conditions did
pled guilty).
co-defendant had
He also cites
reasonably
not
States,
relate. See
Springer
United States v.
v. United
148 F.2d
415-
Abrar,
(2d
1995)
58 F.3d
(9th
Cir.
(repayment
1945),
lb
Cir.
in which this court vacated
debts);
unrelated
Prendergast,
States v.
a a
draft-dodger
that
convicted
do
(8th Cir.1992) (abstinence
While
of defendant’s
be—a feature
likely will
legiti-
articulated
Assuming the court
post
of-
standing
before
experience
asserts, under
purpose,
mate
humiliation
sign, the
fice with
test,
Terrigno,
see
of our
prong
the second
serve
should
experiences
he
shame
or so-
humiliation
F.2d at
bringing defendant
salutary purpose
“rea-
are not
“shaming” conditions
called
significance
the real
touch with
in close
sup-
to rehabilitation.
sonably related”
com-
acknowledged
has
crime he
statements
general
our
he cites
port,
should
experience
an
mitting.
Such
reasonably related to
must
effect
rehabilitative
specific
have a
objectives, see Consuelo-
statutory
*7
accom-
not be
could
(“[E]ven
defendant
though
Gonzalez,
at 262
521 F.2d
means, certainly not
by other
plished
very broad discretion
has
judge
trial
imprisonment.
term of
a more extended
proba-
conditions of
terms and
fixing the
reasonably relat-
tion,
must
terms
such
Moreover,
deterrent
also have
“[i]t will
Act.”), several
purposes
to the
ed
and others
defendant
effect on both this
decisions,9
law re-
several
court
made
state
been
have
not
might
who
otherwise
purpose be-
1049,
the rehabilitative
Hackler,
not serve
Cal.App.4th
could
13
People v.
In
unem-
Cali-
defendant
(Cal.Ct.App.1993),
it would render
Cal.Rptr.2d
cause
requiring
contrast,
a condition
By
court vacated
fornia
Gementera’s
ployable.
year
probation to
hours)
during
first
his
temporally (eight
sharply limited
was
his
was outside
a t-shirt
he
wear
whenever
city),
(one
large
in a
post office
spatially
read,
plus two-
"My record
The t-shirt
home.
would
any
its effects
eliminating
risk that
back,
years," and on the
equal four
packs
six
aspects of the
similarly spill
all
over into
Noting
felony
theft.”
probation for
"I
am
Indeed,
court’s
the district
life.
defendant's
inten-
stated
disapproval the trial court's
lengthier
in lieu of
imposition
the condition
to
era
"going
to
extent
some
back
tion
enter
Gementera to
enables
incarceration
transforming the defendant
of stocks”
market.
private labor
1058,
[sic],”
id.
Prin
into "a Hester
681,
t-shirt
that the
Cal.Rptr.2d
court
held
view articles that were not presented to
uncertainty about whether
the condition
the district court.
aids rehabilitation
suffice;
does not
rather,
persuade
he must
us that
the condition’s
supposed relationship to rehabilitation is
evaluating
supervised
unreasonable.
conditions,
release
we have emphasized
We considered a similar question in
the “reasonable relation” test
is nec-
Clark, a case involving
police
two
officers
essarily a “very
standard,”
flexible
convicted of perjury in a civil rights law-
flexibility
is necessary because of
they brought
suit
against
their depart-
uncertainty
“our
about how rehabilitation
Clark,
ment.
history,
how rehabilitation
as to
tainty exists
the conse-
fully understand
did
he
Consuelo-Gonza
See
accomplished.
best
criminality, and
continued
of his
quences
picture
lez,
at 264. Were
responsibility.10
accepted
truly
had not
would
justice system
clearer,
criminal
our
explained:
The court
im
different,
substantially
vastly
be
to be
needs
man who
young
ais
[T]his
estimate,
two-thirds
By one
proved.
the conse-
with
face-to-face
brought
inmates who
640,000
and federal
state
going
He’s
conduct.
of his
quences
will
in
return
released
will be
At age
in life.
path
wrong
down
Price
years. The
a few
within
prison
offense, he’s
kind of an
committing this
Times,
Prisons,
June
N.Y.
history category
already in a criminal
Statistics,
Bureau of Justice
A26.
the criminal
way up
two-thirds
Prisoners
Justice, Recidivism
Dep’t
call.
wake-up
He needs
history scale.
re
(finding 67.5%
Released
study
that Gementera
among
population
also determined
rate
cidivism
1994). The
the serious-
300,000
about
released
prisoners
to be educated
needed
in these
given
ignorance
humanity
of our
particular,
mail crimes
cost
ness of
staggering.
victimless:
appear to
matters
they might
Gementera’s
features Mr.
of the
One
contend
and amicus
he,
offenders
some
unlike
is that
offense
be rehabilitative
cannot
shaming conditions
of-
very
of this
not,
nature
by the
necessarily cause
did
conditions
such
because
victims.
fense,
society
come face-to-face
to withdraw
offender
damage, and
mail
psychological
stealing
inflict
shown
otherwise
needs
He
against
bar
per
they
who
would erect
se
victims;
people
there are
has
Shame,
Massaro,
Toni
security
conditions.11 See
integrity
depend
Law, 89
Culture,
Criminal
American
ways and
very important
mail in
some
shaming
were
Even if
pre-surren-
post-sentencing,
10. Gementera's
*9
rehabilitative,
urges
Gementera
mail
times
possession of stolen
der conviction
psychologically
would
of the district
confirms
reasonableness
case, given his "lack
specific
damaging
his
respect.
in this
For
observation
court’s
conviction,
abuse,
skills,
and his
his
coping
substance
sentenced
Gementera
father.”
personal issues
unresolved
imprisonment.
twenty-four months
(1991) (“When
Mich. L.Rev.
1920-21
Kahan,
Dan M.
What Do Alternative
works,
it
person
redefines a
in a nega
Mean?,
Sanctions
63 U. Chi. L.Rev. 591
tive, often
way”
irreversible
and the “psy
(1996) (arguing that shaming sanctions re-
chological core” it affects cannot thereafter
public
inforce
against
norms
criminality).
rebuilt.);
see generally June
Tag-
Price
By no means is this conversation one-sid-
al.,
ney et
Relation
Shame and Guilt to
ed.
Constructive Versus Destructive Respons
offenses,
Criminal
penalties
and the
Anger
es to
Across the Lifespan, 70 J.
accompany them, nearly always cause
Psych.
&
Psych.
(1996);
Soc.
797-98
shame and embarrassment. United States
al.,
June Price Tagney et
Shamed into
Koon,
Cir.1994)
?
Anger The Relation
Shame and Guilt
(“Virtually all individuals who are convict-
to Anger and Self-Reported Aggression, ed of serious crimes suffer humiliation and
Psych
(1992).
J.
&
Psych.
Soc.
669-675
shame,
many
may be
by
ostracized
Though the
court
district
had
scientific
communities.”).
their
Indeed,
the mere
it,
evidence before
as Gementera com
fact
conviction,
without which state-
plains, we do not
insist
such evidence
sponsored rehabilitation efforts do not
in our
Moreover,
deferential review.12
commence, is stigmatic. The fact that a
fact is that
vigorous, multifaceted,
schol
condition causes shame or embarrassment
arly debate on shaming
efficacy,
sanctions’
does not automatically render a condition
desirability, and underlying rationales con
objectionable; rather, such feelings gener-
tinues
See,
within the academy.
e.g., Dan
ally signal
M.
defendant’s acknowledg-
Kahan &
Posner,
Eric A.
Shaming
ment of his wrongdoing. See
White-Collar Criminals: A
Webster’s
Proposal for
Ninth New Collegiate
Dictionary
Federal Sentencing
Guide
Reform of
(1986)
lines, 42
(defining
J.L. & Econ.
shame as
painful
“a
emo-
tion
(urging
stigmatic
use of
punishments
caused
guilt,
consciousness of
criminals);
white-collar
shortcoming,
Stephen P.
or impropriety”);
Gar
see also
vey,
Shaming
Gollaher,
Can
Punishments Edu
the district court pro nonetheless inserted a tunity potential to assess their value. *10 Reintegrative (stigmatization). grative virtual- are conviction a from criminal flow com- of expressions that means shaming to cause tendency unlimited,” and ly range from may which munity disapproval, condi- a extinguish to insufficient is shame ceremonies, degradation to mild rebuke inso- at least promise, rehabilitative tion’s reacceptance of gestures by are followed flexible reasonable for our required far as citi- law-abiding community of into the Koon, 1454. test. relation sig- highly zens.”). as this factor seeWe a not short, consider here we nificant. solely to intended condition stand-alone sandwich court’s district While set comprehensive humiliate, but rather crude, and was somewhat condition board to expose the that provisions of with- of risk social entail could by itself then that also but disapprobation, coupled social it was stigmatization, drawal to for Gementera opportunity an provide in- provisions, socially more useful with society relationship with repair and writ- high school lecturing at a —first cluding by and then forgiveness seeking its by under- loosely be might that apologies, ing community, an of the a member as making, social offender’s promote to stood for- the moral to Shame, contribution independent Note, Stigma, reintegration. provisions,14 youth.13 These of its mation Efficacy Evaluating and Crime: of of the offend- needs Law, the specific to tailored Criminal in Shaming Sanctions concluding that er,15 counsel favor (2003) how (proposing L.Rev. Harv. being the threshold passes to may be structured sanctions shaming to rehabilitation. reasonably related effec- reintegration most social promote Crime, Braithwaite, Shame tively); John (“The crucial Reintegration im- lengthier aware Finally, we are shaming that between distinction to available was an alternative prisonment that is disinte- shaming reintegrative law-abiding citi- community of tion analysis looking faults our dissent 13.The an zens, generate contrition in order to provi- to signboard clause other beyond the community, rejoin that to desire authentic [Dissent at four-part condition. sions to reference without not, evaluated need char- the dissent as purpose is Our 612.] to recon- provisions program's affirmative it, con- improper an suggest that acterizes community and with the offender cile the setting merely by may be cured dition reintegrate into it. eventually him Rather, our ob- proper alongside conditions. individual an ligation is to assess whether more on the difficult pass here We do not purpose of reasonably to the relates provision original 100-hour court's the district case of condition, part provision is Where rehabilitation. reintegra- significant lacked scheme, we see integrated rehabilitative anof aspects. tive aspects of the looking at other bar to and reason- evaluating purpose scheme purpose of acknowledge one We do at issue. provision of the individual ableness promote was to Sentencing others, Guidelines provision By acting with concert sentencing, and uniformity rehabilitation, in federal greater even may reasonably relate super- conditions permitting certain virtue primarily though the existed relation here, release, may lead as provi- vised complementary its interaction described As regularized sentences. less A boot program. integrated an sions in however, above, previously upheld by “break- operates camp, example, that supervised re- array diverse lease, “building them before ing participants down” author- contemplated statute’s impermissible again” rendered up is not district [the alone, "any other ization standing step, merely the first because appropriate.” to be considers court] Similarly, pro- might impermissible. 3583(d). separa- U.S.C. emphasizes an offenders’ gram *11 court, however, promote the court. The reasoned better this defendant’s rehabilita- rehabilitation would be better tion and of amendment life than would a sentence, aby coupled achieved shorter term lengthier By of incarceration. con- trast, with the “It a per additional conditions: would se rule that mandatory off a public airing seem me he’s better with of can one’s offense never prison, longer pris- taste of rather than an duty assist offender to reassume his of sentence, on and some form of condition obedience to the law would impose nar- brings of him face-to-face penological orthodoxy release that row contemplat- consequences with by of crime.” ed express approval Guidelines’ of judge’s reasoning “any that rehabilitation would other condition [the district court] by be served means other than ex- better considers to be appropriate.” U.S.C. 3583(d). punishment tended incarceration reasonable, Kahan,
plainly see Dan M. Mean?, Ill What Do Alternative Sanctions (“[I]t 63 U. L.Rev. 653 n. Chi. urges Gementera also that the sandwich by the became clear middle the [19th] board condition violates the Constitution. century imprisonment was ill suited First, Fifth, with respect Claims ” (internal .... to rehabilitation citations Eighth, and Fourteenth Amendments are omitted)), light sig- particularly presented. disadvantages nificant at- economic prolonged tach to imprisonment. gen- A Western, erally Jeffrey Kling, Bruce & argues Amicus condition vio- Weiman, David Market Labor Conse- First, Fifth, Eighth lates the and Four- Incarceration, quences De- Crime & teenth Amendments. Gementera bases linquency lit- (reviewing 410-27 solely his appeal upon Eighth Amend- erature); Jeffrey Grogger, The Effect of ment, and government contends that
Arrests on the Employment and Earn- the additional arguments constitutional Men, ings Young Quarterly Eco- J. presented by the amicus have been waived. (1995) (finding nomics 51-72 that incarcer- ative sentences have on we “Generally, substantial effects do not consider on earnings comparison parole). appeal only an issue raised an amicus.” Peterson, Swan v. 6 F.3d Cir.1993). The court has argu considered
Accordingly, jurisdictional we hold that the of a only condition ments nature raised amici, Francisco, reasonably Stone v. relat- San 968 F.2d (9th Cir.1992) (“Issues legitimate statutory objective ed touching holding, rehabilitation.16 so are comity may federalism and consid careful not to articulate a principle sponte.”), broader ered sua and it has addressed than that presented by purely legal questions parties the facts of this when the case. With care and an specificity, express adopt arguments the dis- intent to trict court logic outlined sensible under- as own. v. Van their United States Win conditions, row, (9th Cir.1991) lying its conclusion that a set (“Because including signboard provision, [litigant] but also states in his brief that including reintegrative provisions, he to adopt arguments would wishes [amicus’] reasonably holding, objectives In view of this we do not reach relates to deter- separate protection public. issue of whether the condition rence and era, *12 the colonial common severity were pure present they own, and because 84, 97-98, Doe, 538 U.S. see, v. Smith e.g., them consider law, will we of
issues
(2003);
164
1140, 155 L.Ed.2d
Cal.
Joe’s
S.Ct.
123
here.”)-
Artichoke
712,
Friedman,
Punish-
Norton, 353 F.3d
Crime
Lawrence
v.
Casino
Grand
(1993), and
Cir.2003) (“In
ex-
History
absence of
38
719(9th
in American
ment
not
circumstances,
point.
are
which
on this
quarrel
do not
ceptional
parties
address issues
not
here,
dowe
present
extends
prohibition
The Amendment’s
brief.”); Russian
an amicus
only in
raised
barbarous
deemed
practices
those
beyond
City
v.
Comm.
Protection
River Watershed
See Stan-
century, however.
in the 18th
1136, 1141
Rosa,
Santa
of
361, 369-70,
492 U.S.
Kentucky,
v.
raised
Cir.1998)
issue
ford
to address
(declining
(1989).
2969,
106 L.Ed.2d
109 S.Ct.
appeal when
time
for first
by amicus
are not
of the Amendment
words
“[T]he
the amicus’
adopt
not
did
appellee
not static.
scope is
their
brief).
[]
precise,
not
did
Gementera
in its
argument
meaning
draw its
must
Amendment
on The
arguments
constitutional
adopt amicus’
decency
of
standards
urged
evolving
government
Though the
from
appeal.
maturing soci-
had
aof
arguments
progress
these
mark the
reply brief
its
100-01,
78 S.Ct.
declined
waived,
again
at
Trop,
Gementera
356 U.S.
ety.”
been
(“Fines,
otherwise
or
im-
arguments
100,
incorporate
590;
78 S.Ct.
at
id.
own
in its
argument
may
the waiver
address
execution
and even
prisonment
to address
decline
Accordingly,
reply.
enormity of
imposed depending
Amend-
Fourteenth
First,
Fifth
outside the
crime,
technique
any
but
ment claims.
penalties is
these traditional
bounds
assessing
In
constitutionally suspect.”).
B
evolved, we look
have so
standards
what
Eighth
to the
then
turn
We
society as a
American
of modern
“to those
infliction
Amendment,
forbids
369, 109
at
whole,”
U.S.
Stanford, 492
U.S.
punishments.”
unusual
“cruel and
factors
2969,
“objective
relying upon
S.Ct.
Const,
concept
basic
“The
VIII.
amend.
extent,”
v.
Coker
possible
the maximum
was
Eighth Amendment
underlying
2861,
592,
584,
97 S.Ct.
U.S.
Georgia, 433
of man.”
dignity
less than
nothing
(1977)
opinion),
(plurality
L.Ed.2d
100,
86,
78 S.Ct.
Dulles,
U.S.
v.
Trop
of de-
conceptions
own
than “our
rather
dena
(finding
590,
whether incarceration, consti- in lieu of signboard, Amendment the Sixth subject to crime and unusual constitutionally cruel tutes evalu- required Court provision trial punishment. author- the maximum severity of ate any 109 S.Ct. evidence Id. the absence penalty. ized comparison sentence particularly a maximum contrary, and provided statute prison, alternatively, forty-eight the modern or, reality of months six to conclude while dressed no reason community simply service hours the bounds us exceeds identifying defen- sanction before garb distinctive “evolving offender, other standards” payment “civilized DUI as a dant prog- license, decency that mark driving fine, standards loss $200-$1000 *14 society.” Trop, maturing Id. course. a abuse ress of at an alcohol attendance 100-01, 590. S.Ct. Court at 539-40, U.S. 109 S.Ct. at wrote: AFFIRMED. fact by the unpersuaded
areWe dissenting: HAWKINS, Judge, Circuit sentence, DUI a prison a that, of instead perform ordered may be be offender must release supervised Conditions in dressed service community hours “involve to- and related reasonably of- a DUI him as identifying clothing rea- liberty than is deprivation greater outfit is assuming the Even con- fender. criminal to deter necessary” sonably during embarrassment some source rehabilitate duct, protect public, will a penalty 3553(a)(1)- period, the 48-hour §§ 18 U.S.C. the offender. onerous less embarrassing Williams, less v. 3583(d)(2); States (2); jail. Cir.2004). months in than six Clear- at issue shaming punishment1 1289; ly, at but see id. 544, 109 S.Ct. Id. Ge- humiliate case was intended this (“We review hampered our are n. 10 Any do. all will And that the mentera. because clothing requirement punish- of the goal classify the attempt to nei- contains courts the state record humiliation than other anything as any ment clothing nor description a ther humilia- disingenuous.2 Because it must be would when to where details goals proper the three one of tion is not worn.”). concluded Court as the Just Act,3 I Sentencing Reform under in distinctive dressed service 48 hours of forthright his state- judge was The district "shaming” pun- a has defined 1.One scholar first, condi- imposed the why he regarding two features: ment "marked ishment as debase, degrade, or to understand needs attempt to "[Gementera] an tion: there second, offender; deg- society for this kind has disapproval humiliate eye, often conduct, before the humil- occurs radation idea behind that’s the public.” aid of the always but iation.” Markel, Shaming Beauti- Punshments Are Dan Im- and the fully Retributivism Retributive? deterrence, rehabilita- goals are 3. The three Debate, Sanctions Alternative plications U.S.C. tion, public. 18 protection (Nov.2001). This L.Rev. Vand. 3553(a)(2). §§ to wear requiring Gementera condition— public post office board outside sandwich clearly qualifies as declaring his crime'— "shaming” punishment. would hold that the district court abused tion that a convicted draft dodger donate a its discretion in imposing the pint Cross). condition. of blood to the Red State, Ballenger v. 210 Ga.App. precious
There is
little federal authority-
(1993),
S.E.2d 793
approved a
sentences that include shaming compo-
that a convicted drunk driver wear a
nents,
fluor-
perhaps indicative of
recognition
pink
escent
identification bracelet identify-
justification
whatever legal
may be
ing him as such. By my lights, the dissent
in support
marshaled
of sentences involv-
in Ballenger is far
persuasive.
more
Con-
ing public humiliation, they simply have no
cluding that the purpose of the condition
place in
majesty
of an Article III
clearly
humiliate,
Judge Blackburn
courtroom. Some state courts have re-
argued that “a rationale of rehabilitation
viewed such sentences and the results
may not be used to vest
... authority[to
have been mixed.
prescribe this type of punishment] in the
People Hackler,
majority history when in our a time recalls ments with “coupled it was because acceptable order were the and stocks pillories [Op. at provisions.” socially useful more runs power use of such To sanction day. says majority way, the Put another 606] doing so we risk very great “a stand-alone considering not it is crimi- for the disrespect “a sense instill humiliate, but soley to intended Ballenger, 436 system” itself. justice nal conditions.” set comprehensive rather (Blackburn, dissenting). J. at 796 S.E.2d to no majority cites But the 606] [Op. Act Sentencing Reform in the provision and remand sentence I vacate would that condi indicating case law to no instructing district re-sentencing, re be should release supervised shaming tions humiliation individually, or jus- a set system viewed in our place proper has be hu ceases to somehow humiliation tice. punishment. other with combined when miliation Eyler, 67 v. States Cf . Cir.1995) (“Any 1386, 1393-94 each meet must
discretionary condition in [the set forth three broad add (emphasis Act].” Reform
Sentencing seems
ed)). majority’s position a sentence FELIX, if one Jacoby even Petitioner- Lee Act, it Sentencing manifestly violates Appellant, provision coupling cured can When other, ones. proper MAYLE, Warden, A. Deneice and no forward put proposition novel Respondent-Appellee. *16 it, there is support is cited law case day, end of At the usually a reason. No. 02-16614. a condition evaluating charged with we are Appeals, Court States humiliate, and is to purpose primary whose Circuit. Ninth upheld. not be simply should Nov. 2003. and Submitted Argued the sandwich I believe Although Sentencing 2004. April violates Withdrawn board Submission reverse and we should Act Reform July 2004. Resubmitted reason, I believe for that district Aug. 2004. Filed A fan- policy. bad simply this is its society is how of a civilized measure between space in the behave
institutions do and power to may have
what it component shaming do. it should
what fails that test. case this the sentence person, another one shames
‘When shame, to object of degrade
goal is being, to chain in the him lower
place him.”5
dehumanize Markel, supra note 1 at