United States v. Gementera

O'SCANNLAIN, Circuit Judge.

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, and the government dismissed a second count of receiving a stolen U.S. Treasury check.

The offense was not Gementera's first encounter with the law. Though only twenty-four years old at the time, Gementera'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. He also imposed conditions of 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: 'I stole mail. This is my punishment.'" Gementera later filed a motion to correct the sentence by removing the sandwich board condition.

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. It also included a scaled-down version of the signboard requirement:

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.

. . .

II

We first address Gementera's argument that the eight-hour sandwich board condition violates the Sentencing Reform Act.

The Sentencing Reform Act affords district courts broad discretion in fashioning appropriate conditions of supervised release, while mandating that such conditions serve legitimate objectives. . . . [A]ny condition must be "reasonably related" to "the nature and circumstances of the offense and the history and characteristics of the defendant." 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," "protect the public from further crimes of the defendant," and "provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner." Accordingly, the three legitimate statutory purposes of deterrence, protection of the public, and rehabilitation frame our analysis.

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 fundamental rights. . . . This reflects, in part, their greater knowledge of and experience with the particular offenders before them. We have, for example, upheld conditions barring possession of sexually stimulating material, contact with minors, association or membership in "motorcycle clubs," and access to the internet.

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. "This test is applied in a two-step process; first, this court must determine whether the sentencing judge imposed the conditions for permissible purposes, and then it must determine whether the conditions are reasonably related to the purposes." Gementera's appeal implicates both steps of the analysis.

A

Gementera first urges that the condition was imposed for an impermissible purpose of humiliation. He points to certain remarks of the district court at the first sentencing hearing:

He 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: "Ultimately, 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 "humiliation is not the point." The court's written order similarly stresses that the court's goal was not "to subject defendant to humiliation for humiliation's sake, but rather to create a situation in which the public exposure of defendant's crime and the public exposure of defendant to the victims of his crime" will serve the purposes of "the rehabilitation of the defendant and the protection of the public."

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, "it 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. . . .

B

Assuming the court articulated a legitimate purpose, Gementera asserts, under the second prong of our test, that humiliation or so-called "shaming" conditions are not "reasonably related" to rehabilitation. In support, he cites our general statements that conditions must be reasonably related to the statutory objectives, several state court decisions, and several law review articles . . .

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." While our knowledge of rehabilitation is limited, we have nonetheless explicitly held that "a public apology may serve a rehabilitative purpose." Of course, for Gementera to prevail, introducing mere uncertainty about whether the condition aids rehabilitation does not suffice; rather, he must persuade us that the condition's supposed relationship to rehabilitation is unreasonable.

. . .

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. . . .

2

It is true, of course, that much uncertainty exists as to how rehabilitation is best accomplished. . . . Were that picture clearer, our criminal justice system would be vastly different, and substantially improved. By one estimate, two-thirds of the 640,000 state and federal inmates who will be released in 2004 will return to prison within a few years. The cost to humanity of our ignorance in these matters is staggering.

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. . . . Though the district court had no scientific evidence before it, as Gementera complains, we do not insist upon such evidence in our deferential review. Moreover, the fact is that a vigorous, multifaceted, scholarly debate on shaming sanctions' efficacy, desirability, and underlying rationales continues within the academy. . . . By no means is this conversation one-sided.

Criminal offenses, and the penalties that accompany them, nearly always cause shame and embarrassment. Indeed, the mere fact of conviction, without which state-sponsored rehabilitation efforts do not commence, is stigmatic. The fact that a condition causes shame or embarrassment does not automatically render a condition objectionable; rather, such feelings generally signal the defendant's acknowledgment of his wrongdoing. . . . We have recognized that "the societal consequences that flow from a criminal conviction are virtually unlimited," and the tendency to cause shame is insufficient to extinguish a condition's rehabilitative promise, at least insofar as required for our flexible reasonable relation test.

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. . . . 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. These provisions, tailored to the specific needs of the offender, counsel in favor of concluding that the condition passes the threshold of being reasonably related to rehabilitation.

. . .

Accordingly, we hold that the condition imposed upon Gementera reasonably related to the legitimate statutory objective of rehabilitation. In so holding, we are careful not to articulate a principle broader than that presented by the facts of this case. With care and specificity, the district court outlined a sensible logic underlying its conclusion that a set of conditions, including the signboard provision, but also including reintegrative provisions, would better promote this defendant's rehabilitation and amendment of life than would a lengthier term of incarceration. By contrast, a per se rule that the mandatory public airing of one's offense can never assist an offender to reassume his duty of obedience to the law would impose a narrow penological orthodoxy not contemplated by the Guidelines' express approval of "any other condition [the district court] considers to be appropriate." . . .

AFFIRMED.

HAWKINS, Circuit Judge, 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. . . . Clearly, the shaming punishment at issue in this case was intended to humiliate Gementera. And that is all it will do. Any attempt to classify the goal of the punishment as anything other than humiliation would be disingenuous. Because humiliation is not one of the three proper goals under the Sentencing Reform Act, I would hold that the district court abused its discretion in imposing the condition. . . .

[Th]e 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 majority nonetheless finds the condition acceptable because it was "coupled with more socially useful provisions." Put another way, the majority says that it is not considering "a stand-alone condition intended soley to humiliate, but rather a comprehensive set of conditions." But the majority cites to no provision in the Sentencing Reform Act and to no case law indicating that conditions on supervised release should be reviewed as a set and not individually, or that humiliation somehow ceases to be humiliation when combined with other punishment. . . . The majority's position seems to be that even if one condition of a sentence manifestly violates the Sentencing Act, it can be cured by coupling the provision with other, proper ones. When such a novel proposition is put forward and no case law is cited to support it, there is usually a reason. At the end of the day, we are charged with evaluating a condition whose primary purpose is to humiliate, and that condition should simply not be upheld.

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 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. "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.

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.