Modern twist upon the "Scarlett Letter"

Thief challenges dose of shame as punishment

A mail thief who was sentenced to wear a large sign publicizing his crime will appeal in a case that could have broad implications for so-called shaming punishments.

Shawn Gementera's appeal is due to be filed by Monday, his lawyer says. If the case is accepted by the San Francisco-based 9th U.S. Circuit Court of Appeals, it probably will mark the first time that a full federal appeals court has scrutinized sentences that require convicted criminals to make themselves look foolish in ways befitting the crime.

For instance, one California purse snatcher known for his stealth was ordered in 1976 to wear noisy tap shoes in public. A state rather than a federal court reviewed that case and upheld the punishment.

In Gementera's case, a federal judge in March 2003 ordered him to stand for eight hours outside a San Francisco post office wearing a two-sided "sandwich board" bearing the words: "I stole mail. This is my punishment."

His lawyer says judges are overstepping their bounds by adding public humiliation to a criminal sentence.

"If there's an absence of similar (appeals) cases, it may be because other courts have not seen fit to impose such unlawful and unconstitutional sentences," says Arthur Wachtel, Gementera's lawyer.

Gementera, then 24, was charged in May 2001 with pilfering U.S. Treasury checks and other mail from boxes along San Francisco's Fulton Street. He pleaded guilty to mail theft and was sentenced by federal Judge Vaughn Walker to two months in prison followed by supervised release, which included wearing the embarrassing sign in public for one day.

Walker told him: "You need to be reminded in a very graphic way of exactly what the crime you committed means to society. ... (You need) a wake-up call."

Before Gementera could serve his sentence, he was arrested again for mail theft, convicted and sentenced to two years in prison.

In court papers, Wachtel says that the sandwich board punishment violates federal sentencing law by seeking to "humiliate" rather than "rehabilitate" the mail thief.

He also argues that the sentence amounts to "cruel and unusual punishment," which is barred by the U.S. Constitution.

Papers filed by the Justice Department, which is defending the sentence, argue that "shame" is the usual result of a criminal conviction and that it can be useful in rehabilitation.

Wearing a sandwich board is "less onerous" than the prison sentence, which Gementera did not appeal, the Justice Department says.

Shaming sentences have increased in popularity since the early 1990s. Most are imposed by local judges for less-serious crimes. They are sometimes called Scarlet Letter punishments, after Nathaniel Hawthorne's 1850 novel in which an adulteress is forced to wear a scarlet "A" on her clothes.

• In Maryland, Texas, Georgia and California, shoplifters have been required to stand outside stores with signs announcing their crimes.

• In Escambia County, Fla., and in Ohio, drunken drivers are issued special license plates that identify them to fellow motorists.

• In Houston and Corpus Christi, Texas, convicted sex offenders have been ordered to place signs on their front lawns that warn away children.

• In Pennsylvania last year, the driver of a car that caused a fatal accident was forced to carry a picture of the victim.