Thanks to The Sentencing Law & Policy Blog:

The title of this post is the headline of this recent Los Angeles Times commentary by Patt Morrison on an alternative punishment topic I always find interesting. Here are excerpts:

You play the judge: How would you sentence a man who spent 15 years picking on his neighbor and her handicapped children? A Cleveland judge sentenced just such a man, Edmond Aviv, to jail, community service, anger management and mental health counseling — and to spend five hours alongside a busy street on a Sunday in April with a great big sign branding him an intolerant bully.

The 8th Amendment bans cruel and unusual punishment. Is this either one? Or can justice be fairly meted out in something other than years and months behind bars?

In 2012, a different Cleveland judge gave a woman a choice of going to jail or spending two days standing on a street corner with a sign reading: “Only an idiot would drive on the sidewalk to avoid a school bus.” The woman chose to hold the sign.

Puritan punishments like locking someone’s head and hands in the stocks seem like retribution, not justice. In “The Scarlet Letter,” Hester Prynne, was an adulterer, not a thief. Puritans believed in shame as a behavior corrector. But Prynne flaunted and even co-opted the “A” she was condemned to wear.

Should shame be a component of punishment? Does taking someone down a peg set a miscreant straight, any more than locking him up? And should it be at a judge’s discretion?…

Judges have sentenced a La Habra slumlord to live in his own run-down building under house arrest for two months, and made an Ohio woman who abandoned 33 kittens spend a night alone in the woods. In a case that made the legal textbooks and withstood appeal in 2005, a San Francisco mail thief was ordered to stand on the post office steps with a sign that read: “I stole mail and this is my punishment.”

It’s hard to track the deterrent effect of such creative punishments because they happen so rarely. And judges have so much power and discretion that creative sentencing could mean wildly and unfairly different punishments for the same crime between one courtroom and the next — one reason that sentencing guidelines and laws exist in the first place.

Daniel Markel, the D’Alemberte professor of law at Florida State University and an expert on sentencing, points out that if these punishments didn’t have some efficacy, “there probably wouldn’t be much resistance” from miscreants, but “in fact defendants typically don’t want to be publicly shamed because they realize there is something publicly humiliating about being exposed in the streets.”…

The element of choice that comes up in some kinds of creative sentencing might also give us pause. In California and elsewhere, convicted sex offenders have requested castration — chemical and actual — to get out of prison. Civil libertarians object on “cruel and unusual” constitutional grounds, because it amounts to no choice, and because it gets dangerously close to the medieval notion of cutting off a thief’s hands. Markel adds another objection to asking the guilty to pick their poison: “We punish to communicate censure and condemnation. It’s for a democracy to make those decisions. We ought not empower defendants to be deciding their punishments.”

Edmond Aviv apparently wasn’t given a choice. Will public humiliation change his behavior? He had been convicted of harassment before, so it’s hard to fault the judge for trying something different. And even though we don’t live in Hester Prynne’s world anymore, I’ll cautiously side with the slice of democracy that told a Cleveland.com reporter they approved the sentence. After all, it “communicated censure and condemnation.” In this case, it seems, a bad guy got his just deserts.

A few recent and lots of older posts on shaming sentences:

• Another notable (and astute?) local shaming sentence for elderly bully
• A shameful suggestion for how to make NYC roads and walkways safer
• New commentary calls “creative” shaming punishments “terrible” (on curious grounds)
• Public shaming instead of incarceration in Pennsylvania theft case
• Shaming t-shirts ordered as part of community service sentence
• What punishments really undermine human dignity?
• Shaming punishments and communitarianism
• A proper case for shaming?
• New article on shaming sanctions
• More shame, shame on you
• The state of shaming punishments (with lots of links)

Expert Testimony on Interrogation and False Confession

Brian L. Cutler

University of Ontario Institute of Technology (UOIT)

Keith A. Findley

University of Wisconsin Law School

Danielle Loney

University of Ontario Institute of Technology (UOIT)

May 13, 2014

UMKC Law Review, Vol. 82, No. 3, 2014
Univ. of Wisconsin Legal Studies Research Paper No. 1256

Abstract:

This article examines the need and bases for expert testimony on false confessions in criminal cases. Drawing on social science research, the article first briefly assesses the role of false confessions in wrongful convictions, including the nature of the false confession problem and the impact of false confessions in producing false convictions as well as in tainting other evidence and other aspects of police investigations. The article then turns to admissibility standards that govern expert testimony and their application to false confession expert testimony. In particular it sets forth the typical standards used for assessing admissibility of expert evidence and then shows that, when those standards are applied objectively, appropriately framed expert testimony on false confessions should be admissible in most cases. In particular, the article discusses the research on false confessions to highlight the types of facts that experts can provide to juries. The article then addresses the most prominent systemic response to coerced confessions “the Miranda warnings.” The article examines psychological research to demonstrate that Miranda provides very little protection against coerced and false confessions, and, therefore, cannot provide justification for dispensing with expert testimony.

Marie-Eve Sylvestre (University of Ottawa – Civil Law Section) has posted The (Re)Discovery of the Proportionality Principle in Sentencing in Ipeelee: Constitutionalization and the Emergence of Collective Responsibility (SUPREME COURT LAW REVIEW (2013), 63 S.C.L.R. (2d)) on SSRN.

Here is the abstract:

This paper discusses two important developments following the Supreme Court’s decisions in Ipeelee/Ladue. First, it suggests that the Court’s first-time recognition of the proportionality principle in sentencing as a principle of fundamental justice under section 7 of the Charter is likely to have tremendous impact on sentencing theory and practice by offering new constitutional grounds to challenge mandatory minimal sentences and arbitrarily disproportionate sentences. Second, this paper builds on the Court’s development around the notion of degree of responsibility to propose a new conception of shared and collective responsibility that include the responsibility of state agents and of the state in the perpetration of the crime and allows sentencing judges to reduce or nullify offender’s sentences accordingly.

From the Sentencing Law & Policy Blog:

Will Canada’s courts continue to strike down mandatory minimums as unconstitutional?

 

The question in the title of this post is prompted by this interesting recent commentary in a Canadian paper sent my way by a helpful reader.  The piece by Lisa Kerr is headlined, “Mandatory minimums for drug crimes have no future in Canada: As the B.C. Court of Appeal prepares to hear the first major challenge to mandatory minimums, there’s reason to think the policy will be rightly short-lived.”  Here are excerpts:

This week, the B.C. Court of Appeal hears the first major challenge to the latest symptom of a punitive plague: mandatory incarceration for a drug crime. The defendant, 25-year-old Joseph Lloyd, lives in the downtown eastside of Vancouver, where he struggles with addiction and regularly interacts with the court system. In the past, local judges could use their expertise to craft an individualized punishment for people like Lloyd. Community supervision, drug programming, or specific amounts of jail time could target his specific circumstances.

New legislation compels judges to impose a minimum one-year prison term on all individuals who meet a handful of criteria. Judges can no longer consider whether it is in the public interest to incarcerate someone like Lloyd, or for how long. They can no longer consider whether a person will lose housing or employment. While one year in a chaotic jail is unlikely to help a struggling individual to recover stability, that is a judge’s only option unless the law is struck down.

In the United States, the removal of discretion from sentencing judges is the central cause of its famously high rate of incarceration. There are nine million prisoners in the world. Over two million of them are in the U.S….

The arrival of mandatory sentences does not herald the “Americanization” of Canadian crime policy. The deep principles of our criminal justice system cannot be dismantled overnight. Our prosecutors are not a bloodthirsty lot — they are largely anonymous and professional public servants. Unlike many of their American counterparts, Canadian prosecutors are not subject to elections and public scrutiny. They are better positioned to pursue a broad notion of the public interest, rather than just long prison sentences.

Canadian judges are also likely to resist interference by politicians who are detached from the daily reality of human misery faced in criminal courts. And they have the tools to do so. While Canada and the U.S. have identical language in the constitutional prohibition against “cruel and unusual punishment,” the prohibition has been interpreted very differently in the courts.

In 2003, the U.S. Supreme Court upheld a life sentence for a third offence of stealing golf clubs. In 1987, the Canadian Supreme Court struck down the only previous attempt at automatic incarceration for drug crime: a seven-year term for drug trafficking. So far, mandatory sentences for non-violent drug offences are unconstitutional in this country.

Canadian institutions are likely to resist this untimely American policy transplant. There is no collapse of faith in our courts, there is no crime wave, and there is no Southern Strategy. Joseph Lloyd should encounter a court system that is free to encounter him.