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Approving Judge Vaughn Walker’s “Scarlet Letter” sentence, a divided court of appeals panel on Monday said it’s OK to force a mail thief to wear a sandwich board announcing his crimes. Walker sentenced Shawn Gementera, 27, last spring after he had pleaded guilty to stealing mail. Along with a brief prison sentence, Walker imposed several creative conditions. He wanted Gementera to watch postal patrons visit the lost and found window at a post office and deliver lectures about his crime to high schoolers. Walker also required Gementera to stand outside a post office wearing a placard reading: “I stole mail. This is my punishment.” Gementera’s attorney, Arthur Wachtel of San Francisco, appealed, arguing that public humiliation as a form of punishment violated the Eight Amendment’s ban on cruel and unusual punishment. Monday’s panel disagreed and said Walker’s punishment — reminiscent of the “A” for adultery that Hester Prynne wears in Nathaniel Hawthorne’s 1850 novel “The Scarlet Letter” — did not violate the Constitution or the Sentencing Reform Act. “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 ‘bring[ing] 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,” according to the opinion by 9th U.S. Circuit Court of Appeals Judge Diarmuid O’Scannlain. He was joined by 6th Circuit Judge Eugene Siler Jr., sitting by designation. Before he served the sentence, Gementera was arrested again for stealing mail and was sentenced to two years in prison. Judge Michael Daly Hawkins dissented from Monday’s ruling, writing that “public humiliation or shaming has no proper place in our system of justice.” The majority rejected Wachtel’s argument that the sentence breached contemporary standards of decency. Judges also didn’t care for an amicus brief filed by the Northern District Federal Public Defender, who argued the punishment violated the First, Fifth, Eighth and 14th amendments. Wachtel said he plans to ask for en banc review. He compared Walker’s sentence to the Nazi regime forcing people to wear stars or other stigmatizing symbols on their clothing. “I think that what America learned in our experience in the 1930s and ’40s in Europe [is] you don’t stigmatize people,” Wachtel said. “It’s a radical departure from previous constitutional law. The use of humiliation as a sentence has been precluded.” However, the majority in U.S. v. Gementera, 04 C.D.O.S. 7197, said that conviction itself is already a social stigma. Shame or embarrassment “generally signals the defendant’s acknowledgment of his wrongdoing.” “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 � that might loosely be understood to promote the offender’s social reintegration,” according to the opinion.

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