Experts say judge's 'shaming' order for Orie Melvin may not be enforceable
Legal experts raise constitutional issues
May 9, 2013 12:00 PM
An image taken Tuesday by the county photographer at the order of Common Pleas Judge Lester Nauhaus. Released Wednesday, it shows former state Supreme Court Justice Joan Orie Melvin standing for her court-ordered photo.
Darrell Sapp / Post-Gazette
Joan Orie Melvin arrives at the Grant Street entrance of the Allegheny County Courthouse for sentencing.
By Paula Reed Ward Pittsburgh Post-Gazette
The sentence handed down by Allegheny County Common Pleas Judge Lester Nauhaus on Tuesday to Joan Orie Melvin likely was meant to humiliate the former justice on the Pennsylvania Supreme Court.
And experts agree that it will.
But it also requires Joan Orie Melvin to apologize to former staffers and colleagues even though she proclaims her innocence and plans to appeal the guilty verdict against her.
Some wonder whether such a caveat in her sentence can be enforced.
Orie Melvin was found guilty in February of six criminal counts, including three felonies, for using her judicial staff on the Superior Court to work on her statewide election campaigns for the high court.
On Tuesday, Judge Nauhaus sentenced the 57-year-old mother of six to three years house arrest, to be followed by two years probation.
The judge required Orie Melvin to go into chambers at the end of the sentencing hearing, be handcuffed by a sheriff's deputy and have her picture taken by the county photographer.
As part of her sentence, she must send copies of the photograph to about 500 jurists in Pennsylvania with a note of apology.
Jules Epstein, a criminal law professor at Widener University, said there is a significant Fifth Amendment right involved in Judge Nauhaus' sentence.
"Even when you are convicted of a crime, you retain your Fifth Amendment protection against self-incrimination," he said. "You can't be punished for refusing to exercise it."
Mr. Epstein also said he does not believe the apology aspect of Judge Nauhaus' punishment is enforceable.
A good lawyer, he said, would go back to the judge and ask for that part of the order to either be modified or be held in abeyance while appeals play out.
In the meantime, the shaming aspect of the sentence began almost immediately, when on Wednesday, the court released the black and white photograph of Orie Melvin -- her hands clasped together and bound by cuffs -- to the media.
Stephen Garvey, a law professor at Cornell University who has written on shaming penalties, said in recent years, unconventional sentences have come more into fashion.
There was a woman in Cleveland last year who was forced to hold a sign along the roadway that said, "Only an idiot would drive on the sidewalk to avoid a school bus."
In other instances, the names of men patronizing prostitutes have been published in their community newspapers.
And sometimes, DUI offenders have been forced to drive around with placards on their cars noting their violations.
"Typically, shaming penalties are imposed as conditions of probation," Mr. Garvey said. "Rather than go to jail, you have to do this."
Often, the objections that surround those types of punishment don't have to do with the law.
"You can object to them on moral grounds -- that you shouldn't humiliate and demean people," Mr. Garvey said.
He doesn't know of any studies that show that shaming penalties result in deterrence.
Gershen Kaufman, a retired psychology professor who has written several books on shaming, said it most often has a detrimental effect on defendants.
It's a variant of medieval times when offenders were forced to stand on a pillory and be gazed upon by their community, he said.
"I don't believe shaming is an effective way of dealing with this," Mr. Kaufman said. "Shame is so disturbing and disruptive, and invariably, it causes psychic harm."
More than that, he continued, shame often has a negative impact on the defendant's family members, as well.
"It's a public humiliation of the whole kinship clan," Mr. Kaufman said.
In the Orie Melvin case, in which two sisters were also convicted in related cases of similar conduct, that could be particularly true.
As for the sentence handed down to Orie Melvin, Mr. Garvey questioned its value.
"It feels to me like it goes over the line -- that it's designed just to humiliate her," he said. "Forcing her to have the handcuffs feels like too much to me."
Mr. Kaufman feels the same.
"I think it's deeply humiliating," he said. "We don't do that with other criminals."
Handcuffs or not, Mr. Epstein noted, Orie Melvin is not going to jail.
Instead, she will remain in her 3,655-square foot home in Marshall, valued on the Allegheny County assessment web site at $555,000.
"A prudent lawyer might look at that and say, in the big picture, 'You're not going to jail. Let's get on with your appeal and seek modification on the apology.' "
Mr. Kaufman agrees with a statement made by Judge Nauhaus at sentencing -- that Orie Melvin's criminal conduct brought shame to the judiciary and tarnished the reputation of the bench.
"There's no doubt about it," he said. But shaming punishment "didn't work then, and it doesn't work now."