Suzanne Tucker/Shutterstock.com

In the 1960s during the Cultural Revolution, thousands of teachers, scholars and others were hounded by the Red Guard to parade the streets wearing dunce caps and carrying signs advertising their offenses before being shipped off to labor camps. In colonial times, the stockade was a frequent punishment, as well as public flogging. Unfortunately, we are facing an onslaught of humiliating punishments in our criminal justice system. A recently publicized Montana case illustrates the trend. Two men charged with violating probation fabricated stories about serving in the military in the hopes of getting more lenient sentences. Neither was charged under the federal Stolen Valor Act of 2013, but a county district judge ordered that they stand at the Montana Veteran Memorial for eight hours on Memorial and Veterans days wearing a placard reading "I am a liar. I am not a veteran. I stole valor. I have dishonored all veterans!"

There has been a flock of such shaming sentences. For example, a Cleveland Municipal Court judge ordered a defendant caught passing a school bus by driving on a sidewalk to stand at an intersection wearing a sign: "Only an idiot would drive (as I did)." Another defendant who had threatened a police officer had to stand outside a police station three hours a day for one week with a sign "I was an idiot."

Certain degrading practices, we seem to tolerate, for example the traditional "perp walk." Others like sex registration have a lawful purpose. However, we strongly condemn sentences for the sole purpose of humiliating. There are no empirical data or studies showing that shaming sentences deter crime or lessen recidivism. As one commentator has noted, "Modern law values the consistent imposition of punishment and frowns upon judges who personally tailor new forms of punishment… What is most dangerous about this recent trend is that, in the name of reforming citizens, judges will impose their own quirky brand of justice." As an Illinois appellate court noted, when it reversed a trial court's sentence ordering a defendant, driving under the influence, to write an apology to be published with her picture in a local newspaper: "it adds public ridicule as a condition…Neither the trial court nor this court can determine the psychological or psychiatric effect of the publication. An adverse effect upon the defendant would certainly be inconsistent with rehabilitation."

The Montana judge cited as support U.S. v. Gementera, where the Ninth Circuit upheld a sentence directing the defendant to stand outside a post office eight hours a day wearing a signboard stating: "I stole mail. This is my punishment." The case is unusual because, as the dissent noted: "There is precious little federal authority on sentences that include shaming components." The majority rationalized: "Criminal offenses, and the penalties that accompany them, nearly always cause shame and embarrassment…the mere fact of conviction…is stigmatic." Admitting that the condition was "somewhat crude" and "could entail risk of social withdrawal and stigmatization," it nonetheless was acceptable because it was coupled with more socially useful provisions, including lecturing at a high school and writing apologies.

One could distinguish and accept this result because, unlike the Montana sentence, the punishment at least was related to the offensive mailbox pilfering. But we agree with the dissent that shaming just to humiliate violates both the Eighth Amendment and Sentencing Reform Act.

Fortunately, we have not seen these shaming sentences in New Jersey. The closest is a recent sentence ordering a doctor who in a ski rage had attacked a twelve-year-old boy who had hit him jailed for 24 hours every Valentine's Day for three years, a tap on the wrist with no publicity except that attending the original sentence. We trust that is the worst we ever will see in this state.