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One hundred hours in shackles might be considered cruel and unusual punishment, but what about 100 hours bearing a sandwich board as if it were a scarlet letter? Arguing that the court-ordered punishment is a form of humiliation that would push the defendant further into a life of crime, an attorney for convicted mail thief Shawn Gementera is asking U.S. District Judge Vaughn Walker to lift the novel punishment he imposed last week. “Given the unpredictable psychological effect of forcing Mr. Gementera to publicly humiliate himself as part of his punishment, defendant submits that the condition of release fashioned by this court fails to meet the statutory requirement that it be reasonably related to his rehabilitation,” wrote Arthur Wachtel, Gementera’s attorney. Walker ordered Gementera, 24, to carry a sandwich board outside a U.S. Post Office bearing the words, in capital letters: “I HAVE STOLEN MAIL. THIS IS MY PUNISHMENT.” Gementera and another man were caught stealing mail out of mailboxes in San Francisco and Burlingame. When caught, Gementera had dozens of letters with him, including one containing a check for more than $1,500. Though the U.S. attorney’s office did not ask for the unique punishment — the idea was purely Walker’s — it doesn’t appear that it will support Wachtel’s motion. “I’m not finding any case on point to say that it was clearly erroneous,” said Anne-Christine Massullo, the assistant U.S. attorney who prosecuted the case. So-called scarlet letter punishments have been something of a trend in the state courts. Walker, known for his novel approach to sentencing, may be the first federal judge to issue one. Wachtel says Walker has gone too far. In his motion, Wachtel noted that state appellate courts in California, Illinois and New York have voided scarlet-letter sentences. He also said the condition imposed on Gementera runs afoul of the Eighth Amendment’s ban on cruel and unusual punishments. “The legal imposition of a public stigma or sign on an individual who is weak, or offensive, or even despised, has been antithetical to American sensibilities,” he wrote.

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