Lead Opinion
We must decide the legality of a supervised release condition that requires a convicted mail thief to spend a day standing outside a post office wearing a signboard stating, “I stole mail. This is my punishment.”
I
Shawn Gementera pilfered letters from several mailboxes along San Francisco’s Fulton Street on May 21, 2001. A police officer who observed the episode immediately detained Gementera and his partner in crime, Andrew Choi, who had been stuffing the stolen letters into his jacket as Gementera anxiously kept watch. After indictment, Gementera entered a plea agreement pursuant to which he pled guilty to mail theft, see 18 U.S.C. § 1708, and the government dismissed a second count of receiving a stolen U.S. Treasury check. See 18 U.S.C. § 641.
The offense was not Gementera’s first encounter with the law. Though only twenty-four years old at the time, Gement-era’s criminal history was lengthy for a man of his relative youth, and it was growing steadily more serious. At age nineteen, he was convicted of misdemeanor criminal mischief. He was twice convicted at age twenty of driving with a suspended license. At age twenty-two, a domestic dispute led to convictions for driving with a suspended license and for failing to provide proof of financial responsibility. By twenty-four, the conviction was misdemeanor battery. Other arrests and citations listed in the Presentence Investigation Report included possession of drug paraphernalia, additional driving offenses (most of which involved driving on a license suspended for his failure to take chemical tests), and, soon after his twenty-fifth birthday, taking a vehicle without the owner’s consent.
On February 25, 2003, Judge Vaughn Walker of the United States District Court for the Northern District of California sentenced Gementera. The U.S. Sentencing Guidelines range was two to eight months incarceration; Judge Walker sentenced Gementera to the lower bound of the range, imposing two months incarceration and three years supervised release.
One such condition required Gementera to “perform 100 hours of community service,” to consist of “standing in front of a postal facility in the city and county of San Francisco with a sandwich board which in large letters declares: T stole mail. This is my punishment.’ ”
Judge Walker modified the sentence after inviting both parties to present “an alternative form or forms of public service that would better comport with the aims of the court.” In lieu of the 100-hour signboard requirement, the district court imposed a four-part special condition in its stead. Three new terms, proposed jointly by counsel, mandated that the defendant observe postal patrons visiting the “lost or missing mail” window, write letters of apology to any identifiable victims of his crime, and deliver several lectures at a local school.
The defendant shall perform 1 day of 8 total hours of community service during which time he shall either (i) wear a two-sided sandwich board-style sign or (ii) carry a large two-sided sign stating, “I stole mail; this is my punishment,” in front of a San Francisco postal facility identified by the probation officer. For the safety of defendant and general public, the postal facility designated shall be one that employs one or more security guards. Upon showing by defendant that this condition would likely impose upon defendant psychological harm or effect or result in unwarranted risk of harm to defendant, the public or postal employees, the probation officer may withdraw or modify this condition or apply to the court to withdraw or modify this condition.
On March 4, 2003, the court denied the Rule 35 motion and amended the sentence as described above. Gementera timely appealed.
II
We first address Gementera’s argument that the eight-hour sandwich
The Sentencing Reform Act affords district courts broad discretion in fashioning appropriate conditions of supervised release, while mandating that such conditions serve legitimate objectives. In addition to “any condition set forth as a discretionary condition of probation in section 3563(b)(1) through (b)(10) and (b)(12) through (b)(20),” the statute explicitly authorizes the court to impose “any other condition it considers to be appropriate.” 18 U.S.C. § 3583(d)(emphasis added). Such special conditions, however, may only be imposed “to the extent that such condition—
(1) is reasonably related to the factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D);
(2) involves no greater deprivation of liberty than is reasonably necessary for the purposes set forth in section 3553(a)(2)(B), (a)(2)(C), and (a)(2)(D); and
(3) is consistent with any pertinent policy statements issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a)”;
18 U.S.C. 3583(d). Thus, to comply with this requirement, any condition must be “reasonably related” to “the nature and circumstances of the offense and the history and characteristics of the defendant.” See 18 U.S.C. 3553(a)(1). Moreover, it must be both “reasonably related” to and “involve no greater deprivation of liberty than is reasonably necessary” to “afford adequate deterrence to criminal conduct,” see id. at 3553(a)(2)(B), “protect the public from further crimes of the defendant,” see id. at 3553(a)(2)(C), and “provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.” See id. at 3553(a)(2)(D).
Within these bounds, we have recognized the flexibility and considerable discretion the district courts exercise to impose conditions of supervised release, up to and including limits upon the exercise of
Of course, the district court’s discretion, while broad, is limited — most significantly here, by the statute’s requirement that any condition reasonably relate to a legitimate statutory purpose.
A
Gementera first urges that the condition was imposed for an impermissible purpose of humiliation. See 18 U.S.C. § 3553(a). He points to certain remarks of the district court at the first sentencing hearing:
[H]e needs to understand the disapproval that society has for this kind of conduct, and that’s the idea behind the humiliation. And it should be humiliation of having to stand and be labeled in front of people coming and going from a post office as somebody who has stolen the mail.
According to Gementera, these remarks, among others, indicate that the district court viewed humiliation as an end in itself and the condition’s purpose.
Reading the record in context, however, we cannot but conclude that the district court’s stated rationale aligned with permissible statutory objectives. At the second sentencing hearing, when the sentence was amended to what is now before us, the court explained: “[U]lti-mately, the objective here is, one, to deter criminal conduct, and, number two, to rehabilitate the offender so that after he has paid his punishment, he does not reoffend, and a public expiation of having offended is, or at least it should be, rehabilitating in its effect.” Although, in general, criminal punishment “is or at least should be humiliating,” the court emphasized that “[h]u-miliation is not the point.” The court’s
The court expressed particular concern that the defendant did not fully understand the gravity of his offense. Mail theft is an anonymous crime and, by “bringing] home to defendant that his conduct has palpable significance to real people within his community,” the court aimed to break the defendant of the illusion that his theft was victimless or not serious. In short, it explained:
While humiliation may well be — indeed likely will be — a feature of defendant’s experience in standing before a post office with such a sign, the humiliation or shame he experiences should serve the salutary purpose of bringing defendant in close touch with the real significance of the crime he has acknowledged committing. Such an experience should have a specific rehabilitative effect on defendant that could not be accomplished by other means, certainly not by a more extended term of imprisonment.
Moreover, “[i]t will also have a deterrent effect on both this defendant and others who might not otherwise have been made aware of the real legal consequences of engaging in mail theft.”
Read in its entirety, the record unambiguously establishes that the district court imposed the condition for the stated and legitimate statutory purpose of rehabilitation and, to a lesser extent, for general deterrence and for the protection of the public. See 18 U.S.C. § 3553(a); see generally United States v. Clark,
B
Assuming the court articulated a legitimate purpose, Gementera asserts, under the second prong of our test, see Terrigno,
1
In evaluating probation and supervised release conditions, we have emphasized that the “reasonable relation” test is necessarily a “very flexible standard,” and that such flexibility is necessary because of “our uncertainty about how rehabilitation is accomplished.” Id. at 264. While our knowledge of rehabilitation is limited, we have nonetheless explicitly held that “a public apology may serve a rehabilitative purpose.” Clark,
We considered a similar question in Clark, a case involving two police officers convicted of perjury in a civil rights lawsuit they brought against their department. Clark,
Both Clark and Gementera involve defendants who seemingly failed to confront their wrongdoing, and the defendants in each case faced public expiation and apology. In Clark, the defendants had neither admitted guilt nor taken responsibility for their actions. Id. at 848. Here, by contrast, the defendant pled guilty. His plea decision is unremarkable, though, given that he had been apprehended red-handed. Reflecting upon the defendant’s criminal history, the court expressed concern that he did not fully understand the consequences of his continued criminality, and had not truly accepted responsibility.
[T]his is a young man who needs to be brought face-to-face with the consequences of his conduct. He’s going down the wrong path in life. At age 24, committing this kind of an offense, he’s already in a criminal history category 4, two-thirds of the way up the criminal history scale. He needs a wake-up call.
The court also determined that Gementera needed to be educated about the seriousness of mail crimes in particular, given that they might appear to be victimless:
One of the features of Mr. Gementera’s offense is that he, unlike some offenders did not, by the very nature of this offense, come face-to-face with his victims. He needs to be shown that stealing mail has victims; that there are people who depend upon the integrity and security of the mail in very important ways and that a crime of the kind that he committed abuses that trust which people place in the mail. He needs to see that there are people who count on the mails and integrity of the mails. How else can he be made to realize that than by coming face-to-face with people who use the postal service? That’s the idea.
As with Clark, the district court concluded that public acknowledgment of one’s offense — beyond the formal yet sterile plea in a cloistered courtroom — was necessary to his rehabilitation.
2
It is true, of course, that much uncertainty exists as to how rehabilitation is best accomplished. See Consuelo-Gonzalez,
Gementera and amicus contend that shaming conditions cannot be rehabilitative because such conditions necessarily cause the offender to withdraw from society or otherwise inflict psychological damage, and they would erect a per se bar against such conditions.
Criminal offenses, and the penalties that accompany them, nearly always cause shame and embarrassment. United States v. Koon,
3
While the district court’s sandwich board condition was somewhat crude, and by itself could entail risk of social withdrawal and stigmatization, it was coupled with more socially useful provisions, including lecturing at a high school and writing apologies, that might loosely be understood to promote the offender’s social reintegration. See Note, Shame, Stigma, and Crime: Evaluating the Efficacy of Shaming Sanctions in Criminal Law, 116 Harv. L.Rev. 2186 (2003) (proposing how shaming sanctions may be structured to promote social reintegration most effectively); John Braithwaite, Crime, Shame and Reintegration 55 (1989) (“The crucial distinction is between shaming that is reintegrative and shaming that is disinte-grative (stigmatization). Reintegrative shaming means that expressions of community disapproval, which may range from mild rebuke to degradation ceremonies, are followed by gestures of reacceptance into the community of law-abiding citizens.”). We see this factor as highly significant. In short, here we consider not a stand-alone condition intended solely to humiliate, but rather a comprehensive set of provisions that expose the defendant to social disapprobation, but that also then provide an opportunity for Gementera to repair his relationship with society — first by seeking its forgiveness and then by making, as a member of the community, an independent contribution to the moral formation of its youth.
4
Finally, we are aware that lengthier imprisonment was an alternative available to
5
Accordingly, we hold that the condition imposed upon Gementera reasonably related to the legitimate statutory objective of rehabilitation.
Ill
Gementera also urges that the sandwich board condition violates the Constitution. Claims with respect to the First, Fifth, Eighth, and Fourteenth Amendments are presented.
A
Amicus argues that the condition violates the First, Fifth, Eighth and Fourteenth Amendments. Gementera bases his appeal solely upon the Eighth Amendment, and the government contends that the additional constitutional arguments presented by the amicus have been waived.
“Generally, we do not consider on appeal an issue raised only by an amicus.” Swan v. Peterson,
B
We turn then to the Eighth Amendment, which forbids the infliction of “cruel and unusual punishments.” U.S. Const, amend. VIII. “The basic concept underlying the Eighth Amendment was nothing less than the dignity of man.” Trop v. Dulles,
A particular punishment violates the Eighth Amendment if it constitutes one of “those modes or acts of punishment that had been considered cruel and unusual at the time that the Bill of Rights was adopted.” Ford v. Wainwright,
The Amendment’s prohibition extends beyond those practices deemed barbarous in the 18th century, however. See Stanford v. Kentucky,
The parties have offered no evidence whatsoever, aside from bare assertion, that shaming sanctions violate contemporary standards of decency. But the occasional imposition of such sanctions is hardly unusual, particularly in our state courts. See, e.g., Stephen P. Garvey, Can Shaming Punishments Educate?, 65 U. Chi. L.Rev. 733, 734 (1998) (describing proliferation of unorthodox and creative shaming punishments); infra at note 18. Aside from a
We do, however, note that Blanton v. N. Las Vegas,
We are also unpersuaded by the fact that, instead of a prison sentence, a DUI offender may be ordered to perform 48 hours of community service dressed in clothing identifying him as a DUI offender. Even assuming the outfit is the source of some embarrassment during the 48-hour period, such a penalty will be less embarrassing and less onerous than six months in jail.
Id. at 544,
In the absence of any evidence to the contrary, and particularly in comparison with the reality of the modern prison, we simply have no reason to conclude that the sanction before us exceeds the bounds of “civilized standards” or other “evolving standards of decency that mark the progress of a maturing society.” Trop,
AFFIRMED.
Notes
. The court explained that, while it would have been strongly inclined to impose home confinement had Gementera’s criminal history been better, the court felt that "given the unpromising road that the defendant has been following, that he needs to have a taste of federal custody, to be sure a brief one, but he needs to understand that if he continues on the course that he has set for himself at his age he's going to be facing a lot more serious charges in the future.”
. At sentencing, the judge addressed Gement-era: "[WJe've also discussed the fact that you need to be reminded in a very graphic way of exactly what the crime you committed means to society. That is, the idea of you standing out in front of a post office with a board labeling you as somebody who has stolen
. The first three parts of the four-part special condition mandated:
a. The defendant shall, at the direction of the probation officers, spend 4 days of 8 total hours each at a postal facility where there is a lost and found window, observing postal patrons who visit that window to inquire about lost or missing mail;
b. The defendant shall, with the assistance of counsel, carefully examine all Rule 16 discovery materials in the possession of the United States to determine the identity of all ascertainable victims of the defendant’s crime; having identified those persons, the defendant shall compose and address a personal letter to each of these persons individually expressing defendant’s remorse for the specific conduct that harmed that person; the defendant shall provide each such victim with the address of his counsel, through whom any victim who wishes to contact the defendant directly may do so.
c.The defendant shall deliver three educational lectures at three San Francisco high schools, to be identified by the probation officer and under the probation officer’s direction, in which the defendant shall describe the crime he has committed, express his remorse for his criminal conduct and articulate to the students in attendance how his conviction and sentence have affected his life and future plans.
. Gementera was ordered to surrender on March 31, 2003. On March 12, 2003, prior to his surrender, Gementera was arrested for possession of stolen mail, for which he was convicted and received a twenty-four month sentence.
. The court generally reviews supervised release conditions for abuse of discretion, see United States v. Williams,
. Any condition must also be consistent with the Sentencing Commission’s policy statements. See 18 U.S.C. § 3583(d); 28 U.S.C. § 994(a). The parties have not raised arguments with respect to this requirement.
. Though the statutory authorities underlying conditions of probation and supervised release are distinct, compare 18 U.S.C. § 3583(authorizing supervised release conditions) with 18 U.S.C. § 3563(authorizing probation conditions), the court’s supervised release jurisprudence has often relied upon authority from the probation context. See, e.g., United States v. Hurt,
. Gementera points to several cases in which our sister circuits found that conditions did not reasonably relate. See United States v. Abrar,
. In People v. Hackler,
The defendant's third case, People v. Letterlough,
. Gementera's post-sentencing, pre-surren-der conviction for possession of stolen mail confirms the reasonableness of the district court’s observation in this respect. For that conviction, Gementera was sentenced to twenty-four months imprisonment.
. Even if shaming conditions were sometimes rehabilitative, Gementera also urges that the condition would be psychologically damaging in his specific case, given his "lack of coping skills, his substance abuse, and his unresolved personal issues with his father.”
Upon showing by defendant that this condition would likely impose upon defendant psychological harm or effect or result in unwarranted risk of harm to defendant, the public or postal employees, the probation officer may withdraw or modify this condition or apply to the court to withdraw or modify this condition.
No such substantiation was presented. By the terms of the condition, if there were any such evidence, Gementera faces no bar to his presenting it.
. Nor did the district court have any evidence to the contrary. By not citing these scholarly articles until this appeal, Gementera failed to provide the district court any opportunity to assess their potential value.
.The dissent faults our analysis for looking beyond the signboard clause to other provisions of the four-part condition. [Dissent at 612.] Our purpose is not, as the dissent characterizes it, to suggest that an improper condition may be cured merely by setting it alongside proper conditions. Rather, our obligation is to assess whether an individual provision reasonably relates to the purpose of rehabilitation. Where that provision is part of an integrated rehabilitative scheme, we see no bar to looking at other aspects of the scheme in evaluating the purpose and reasonableness of the individual provision at issue. By acting in concert with others, a provision may reasonably relate to rehabilitation, even though the relation existed primarily by virtue of its interaction with complementary provisions in an integrated program. A boot camp, for example, that operates by “breaking participants down” before “building them up again” is not rendered impermissible merely because the first step, standing alone, might be impermissible. Similarly, a program that emphasizes an offenders’ separation from the community of law-abiding citizens, in order to generate contrition and an authentic desire to rejoin that community, need not be evaluated without reference to the program's affirmative provisions to reconcile the offender with the community and eventually to reintegrate him into it.
. We do not pass here on the more difficult case of the district court's original 100-hour condition, which lacked significant reintegra-tive aspects.
. We do acknowledge that one purpose of the Sentencing Guidelines was to promote greater uniformity in federal sentencing, and that permitting certain conditions of supervised release, as imposed here, may lead to less regularized sentences. As described above, however, we have previously upheld a diverse array of conditions of supervised release, as contemplated by the statute’s authorization of "any other condition [the district court] considers to be appropriate.” 18 U.S.C. § 3583(d).
. In view of this holding, we do not reach the separate issue of whether the condition reasonably relates to the objectives of deterrence and protection of the public.
. Gementera points to Williams v. State,
The Georgia court relied upon language from DeShaney v. Winnebago County Dep’t of Social Servs.,
The rationale for this principle is simple enough: when the State by the affirmative exercise of its power so restrains an individual's liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs — e.g., food, clothing, shelter, medical care, and reasonable safety — it transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause.
Id. at 200,
. Numerous state courts have rejected Eighth Amendment challenges to shaming sanctions. See, e.g., People v. Letterlough,
Dissenting Opinion
dissenting:
Conditions of supervised release must be reasonably related to- and “involve no greater deprivation of liberty than is reasonably necessary” to deter criminal conduct, protect the public, and rehabilitate the offender. See 18 U.S.C. §§ 3553(a)(1)-(2); 3583(d)(2); United States v. Williams,
There is precious little federal authority-on sentences that include shaming components, perhaps indicative of a recognition that whatever legal justification may be marshaled in support of sentences involving public humiliation, they simply have no place in the majesty of an Article III courtroom. Some state courts have reviewed such sentences and the results have been mixed.
People v. Hackler,
As in Hackler’s case, the purpose behind the sandwich board condition was not to rehabilitate Gementera, but rather to turn him into a modern day Hester Prynne.
Ballenger v. State,
Just as in Hackler and Ballenger, the true intention in this case was to humiliate Gementera, not to rehabilitate him or to deter him from future wrongdoing. When the district court initially imposed the sandwich board condition, the judge explained that Gementera should have to suffer the “humiliation of having to stand and be labeled in front of people coming and going from a post office as somebody who has stolen the mail.” Subsequently, Gementera filed a motion to correct the sentence by having the sandwich board condition removed. He urged that humiliation was not a legitimate objective of punishment or release conditions. Only at the hearing on Gementera’s motion did the district court change its characterization of the shaming punishment, remarking that the punishment was one of deterrence and rehabilitation and not merely humiliation.
Although the majority opinion initially seems to accept the district court’s retroactive justification for the punishment, it later as much as concedes that the sandwich board condition amounted to a shaming punishment. Admitting that the condition was “crude” and “could entail risk of social withdrawal and stigmatization,” the
Although I believe that the sandwich board condition violates the Sentencing Reform Act and we should reverse the district court for that reason, I also believe that this is simply bad policy. A fan-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. ‘When one shames another person, the goal is to degrade the object of shame, to place him lower in the chain of being, to dehumanize him.”
To affirm the imposition of such punishments recalls a time in our history when pillories and stocks were the order of the day. To sanction such use of power runs the very great risk that by doing so we instill “a sense of disrespect for the criminal justice system” itself. Ballenger,
I would vacate the sentence and remand for re-sentencing, instructing the district court that public humiliation or shaming has no proper place in our system of justice.
.One scholar has defined a "shaming” punishment as "marked by two features: first, there is an attempt to debase, degrade, or humiliate the offender; and second, the degradation occurs before the public eye, often but not always with the aid of the public.” Dan Markel, Are Shaming Punshments Beautifully Retributive? Retributivism and the Implications for the Alternative Sanctions Debate, 54 Vand. L.Rev. 2157, 2178 (Nov.2001). This condition — requiring Gementera to wear a sandwich board outside a public post office declaring his crime' — clearly qualifies as a "shaming” punishment.
. The district judge was forthright in his statement regarding why he imposed the condition: "[Gementera] needs to understand the disapproval that society has for this kind of conduct, and that’s the idea behind the humiliation.”
. The three goals are deterrence, rehabilitation, and protection of the public. 18 U.S.C. §§ 3553(a)(2).
. See Hawthorne, The Scarlet Letter; Hackler,
. Markel, supra note 1 at 2179.