477 F.2d 375 (1973)

No. 596, Docket 72-1450.

[376] Robert L. Boehm, New York City (Morton Stavis, William M. Kunstler, Center for Constitutional Rights, Michael Rattner, David Scribner, New York City, of counsel), for plaintiffs-appellants.

Joel Lewittes, Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen., State of New York, Samuel A. Hirshowitz, First Asst. Atty. Gen., New York City, of counsel), for the State defendants-appellees.

T. Gorman Reilly, Asst. U. S. Atty. (Whitney North Seymour, Jr., U. S. Atty., for S. D. New York, Michael D. Hess, Asst. U. S. Atty., New York City, of counsel), for defendant-appellee, H. Kenneth Schroeder, Jr.

Before SMITH, FEINBERG and MANSFIELD, Circuit Judges.

MANSFIELD, Circuit Judge:

This appeal raises the question of whether the federal judiciary should, at the instance of victims, compel federal and state officials to investigate and prosecute persons who allegedly have violated certain federal and state criminal statutes. Plaintiffs in the purported class suit, which was commenced in the Southern District of New York against various state and federal officers, are certain present and former inmates of New York State's Attica Correctional Facility ("Attica"), the mother of an inmate who was killed when Attica was retaken after the inmate uprising in September 1971, and Arthur O. Eve, a New York State Assemblyman and member of the Subcommittee on Prisons.

They appeal from an order of the district court, Lloyd F. MacMahon, Judge, dismissing their complaint. We affirm.

The complaint alleges that before, during, and after the prisoner revolt at and subsequent recapture of Attica in September 1971, which resulted in the killing of 32 inmates and the wounding of many others, the defendants, including the Governor of New York, the State Commissioner of Correctional Services, the Executive Deputy Commissioner of the State Department of Correctional Services, the Superintendent at Attica, and certain State Police, Corrections Officers, and other officials, either committed, conspired to commit, or aided and abetted in the commission of various crimes against the complaining inmates and members of the class they seek to represent. It is charged that the inmates were intentionally subjected to cruel and inhuman treatment prior to the inmate riot, that State Police, Troopers, and Correction Officers (one of whom is named) intentionally killed some of the inmate victims without provocation during the recovery of Attica, that state officers (several of whom are named and whom the inmates claim they can identify) assaulted and beat prisoners after the prison had been successfully retaken and the prisoners had surrendered, see Inmates of Attica Correctional Facility v. Rockefeller, 453 F.2d 12 (2d Cir. 1971), that personal property of the inmates was thereafter stolen or destroyed, and that medical assistance was maliciously denied to over 400 inmates wounded during the recovery of the prison.

The complaint further alleges that Robert E. Fischer, a Deputy State Attorney General specially appointed by the Governor to supersede the District Attorney of Wyoming County and, with a specially convened grand jury, to investigate crimes relating to the inmates' takeover of Attica and the resumption of control by the state authorities, see Inmates, supra at 16 and n. 3, "has not investigated, nor does he intend to investigate, any crimes committed by state [377] officers." Plaintiffs claim, moreover, that because Fischer was appointed by the Governor he cannot neutrally investigate the responsibility of the Governor and other state officers said to have conspired to commit the crimes alleged. It is also asserted that since Fischer is the sole state official currently authorized under state law to prosecute the offenses allegedly committed by the state officers, no one in the State of New York is investigating or prosecuting them.^[1]

With respect to the sole federal defendant,^[2] the United States Attorney for the Western District of New York, the complaint simply alleges that he has not arrested, investigated, or instituted prosecutions against any of the state officers accused of criminal violation of plaintiffs' federal civil rights, 18 U.S.C. §§ 241, 242, and he has thereby failed to carry out the duty placed upon him by 42 U.S.C. § 1987, discussed below.

As a remedy for the asserted failure of the defendants to prosecute violations of state and federal criminal laws, plaintiffs request relief in the nature of mandamus (1) against state officials, requiring the State of New York to submit a plan for the independent and impartial investigation and prosecution of the offenses charged against the named and unknown state officers, and insuring the appointment of an impartial state prosecutor and state judge to "prosecute the defendants forthwith," and (2) against the United States Attorney, requiring him to investigate, arrest and prosecute the same state officers for having committed the federal offenses defined by 18 U.S.C. §§ 241 and 242. The latter statutes punish, respectively, conspiracies against a citizen's free exercise or enjoyment of rights secured by the Constitution and laws of the United States, see United States v. Guest, 383 U.S. 745, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1966), and the willful subjection of any inhabitant, under color of law, to the deprivation of such rights or to different punishment or penalties on account of alienage, color, or race than are prescribed for the punishment of citizens, see Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945); United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941).^[3]

Federal jurisdiction over the claim against the state defendants was based on 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3) and over the claim against the United States Attorney on the mandamus statute. 28 U.S.C. § 1361. Venue in the Southern District of New York was predicated on 28 U.S.C. §§ 1391(b), 1392(a). The motions of the federal and state defendants to dismiss the complaint for failure to state claims upon which relief can be granted, Rule 12(b)(6), F.R.Civ.P., were granted by Judge MacMahon without opinion. We agree that the extraordinary relief sought cannot be granted in the situation here presented.

[378] Standing

At the outset, we must note that the Supreme Court's recent decision in Linda R.S. v. Richard D., 410 U.S. 614, 93 S.Ct. 1146, 35 L.Ed.2d 536 (1973), to which the attention of the parties in this case was not drawn prior to argument, raises the preliminary question of whether plaintiffs have a sufficient "personal stake in the outcome of the controversy," Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962), to confer standing upon them to invoke the judicial process. In Linda R.S. the mother of an illegitimate child sought to attack as unconstitutionally discriminatory the application of a Texas criminal statute prohibiting the willful refusal of "any parent" to support his or her child on the ground that it was enforced by the state, as a result of state court interpretation of the statute, against married but not unmarried fathers. Holding that she lacked standing, the Supreme Court, in a majority opinion by Justice Marshall, observed:

"The Court's prior decisions consistently hold that a citizen lacks standing to contest the policies of the prosecuting authority when he himself is neither prosecuted nor threatened with prosecution. See Younger v. Harris, 401 U.S. 37, 42, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); Bailey v. Patterson, 369 U.S. 31, 33, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962); Poe v. Ullman, 367 U.S. 497, 501, 81 S.Ct. 752, 6 L.Ed.2d 989 (1961). Although these cases arose in a somewhat different context, they demonstrate that, in American jurisprudence at least, a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another." 410 U.S. at 619, 93 S.Ct. at 1149.

The broad reach of this language would, at first blush, appear to preclude the plaintiffs here from seeking to contest the nonprosecution of third parties they accuse of criminal conduct. However, the present case is in some respects distinguishable from Linda R.S. Unlike the mother there the inmates here might be said to have sustained or be immediately in danger of sustaining direct personal injury as the result of nonenforcement of the criminal laws against the accused state officers. See 410 U.S. at 619, 93 S.Ct. 1146; Massachusetts v. Mellon, 262 U.S. 447, 488, 43 S.Ct. 597, 67 L.Ed. 1078 (1923). They allege that at least some of them suffered direct physical injury at the hands of those they seek to have prosecuted and that if the state officers accused of criminal conduct are not prosecuted, such conduct will continue.

Thus a more immediate and direct danger of injury resulting from nonenforcement is presented here than in Linda R.S., where the Court stressed that the only result of the relief sought by the illegitimate child's mother would be the jailing of the child's father, not the support of the child. Where a successful prosecution, however, would serve to deter the accused from harming the complainant rather than merely supply a penal inducement to perform a duty to provide assistance, the complaining person does show a more direct nexus between his personal interest in protection from harm and the prosecution. But in the present case this rationale in support of standing assumes that injunctive relief, which we conditionally authorized in Inmates of Attica Correctional Facility v. Rockefeller, supra, 453 F.2d at 22-25, restraining physical abuse, torture, beatings or other forms of brutality, or threats of such conduct, is ineffective to protect the plaintiffs from harm.

It may also be argued that since 37 inmates have been indicted for crimes relating to the events at Attica in September 1971, without any indictment having been filed against any of the accused state officials, the complaint alleges a sufficient threat of selective and discriminatory prosecution of the plaintiff inmates to meet the standing requirements discussed in Linda R.S. v. Richard D., supra. On the other hand, [379] the challenge in the present case is not to any criminal statute, as construed, but to the failure of the prosecuting authorities to enforce the criminal laws against a particular group of individuals.

Thus in order to determine whether plaintiffs have standing to sue we would be required to resolve troublesome questions. However, we need not decide the issue of standing because we believe that even if they may properly present their claims for judicial resolution, they seek relief which cannot, in this case at least, be granted either against the state or federal prosecuting authorities.

The Insufficiency of the Complaint

(1) Claim Against the United States Attorney

With respect to the defendant United States Attorney, plaintiffs seek mandamus to compel him to investigate and institute prosecutions against state officers, most of whom are not identified, for alleged violations of 18 U.S.C. §§ 241 and 242. Federal mandamus is, of course, available only "to compel an officer or employee of the United States . . . to perform a duty owed to the plaintiff." 28 U.S.C. § 1361. And the legislative history of § 1361 makes it clear that ordinarily the courts are "`not to direct or influence the exercise of discretion of the officer or agency in the making of the decision,'" United States ex rel. Schonbrun v. Commanding Officer, 403 F.2d 371, 374 (2d Cir. 1968), cert. denied, 394 U.S. 929, 89 S.Ct. 1195, 22 L.Ed.2d 460 (1969). More particularly, federal courts have traditionally and, to our knowledge, uniformly refrained from overturning, at the instance of a private person, discretionary decisions of federal prosecuting authorities not to prosecute persons regarding whom a complaint of criminal conduct is made. E. g., Milliken v. Stone, 16 F.2d 981 (2d Cir.), cert. denied, 274 U.S. 748, 47 S.Ct. 764, 71 L.Ed. 1331 (1927); Pugach v. Klein, 193 F.Supp. 630 (S.D.N.Y.1961); Powell v. Katzenbach, 123 U.S.App.D.C. 250, 359 F.2d 234 (1965), cert. denied, 384 U.S. 906, 86 S.Ct. 1341, 16 L.Ed.2d 359, rehearing denied, 384 U.S. 967, 86 S.Ct. 1584, 16 L.Ed.2d 679 (1966); Smith v. United States, 375 F.2d 243 (5th Cir.), cert. denied, 389 U.S. 841, 88 S.Ct. 76, 19 L.Ed.2d 106 (1967). See also Confiscation Cases, 74 U.S. (7 Wall.) 454, 19 L.Ed. 196 (1868); Goldberg v. Hoffman, 225 F.2d 463 (7th Cir.1955); United States v. Cox, 342 F.2d 167 (5th Cir.), cert. denied sub nom., Cox v. Hauberg, 381 U.S. 935, 85 S.Ct. 1767, 14 L.Ed.2d 700 (1965); Newman v. United States, 127 U.S.App.D.C. 263, 382 F.2d 479 (1967).

This judicial reluctance to direct federal prosecutions at the instance of a private party asserting the failure of United States officials to prosecute alleged criminal violations has been applied even in cases such as the present one where, according to the allegations of the complaint, which we must accept as true for purposes of this appeal, see Inmates of Attica Correctional Facility v. Rockefeller, supra, 453 F.2d at 24 (and cases there cited), serious questions are raised as to the protection of the civil rights and physical security of a definable class of victims of crime and as to the fair administration of the criminal justice system. Moses v. Kennedy, 219 F.Supp. 762 (D.D.C.1963), affd. sub nom., Moses v. Katzenbach, 119 U.S.App.D.C. 352, 342 F.2d 931 (1965); Peek v. Mitchell, 419 F.2d 575 (6th Cir.1970).

The primary ground upon which this traditional judicial aversion to compelling prosecutions has been based is the separation of powers doctrine.

"Although as a member of the bar, the attorney for the United States is an officer of the court, he is nevertheless an executive official of the Government, and it is as an officer of the executive department that he exercises a discretion as to whether or not there shall be a prosecution in a particular case. It follows, as an incident of the constitutional separation of powers, that the courts are not to interfere [380] with the free exercise of the discretionary powers of the attorneys of the United States in their control over criminal prosecutions." United States v. Cox, supra 342 F.2d at 171.

Accord, Pugach v. Klein, supra 193 F. Supp. at 634; Moses v. Kennedy, 219 F. Supp. at 764-765; Peek v. Mitchell, supra 419 F.2d at 577-578.

Although a leading commentator has criticized this broad view as unsound and incompatible with the normal function of the judiciary in reviewing for abuse or arbitrariness administrative acts that fall within the discretion of executive officers, K. C. Davis, Administrative Law Treatise § 28.16(4) at 982-990 (1970 Supp.), he has also recognized, as have most of the cases cited above, that the manifold imponderables which enter into the prosecutor's decision to prosecute or not to prosecute make the choice not readily amenable to judicial supervision.

In the absence of statutorily defined standards governing reviewability, or regulatory or statutory policies of prosecution, the problems inherent in the task of supervising prosecutorial decisions do not lend themselves to resolution by the judiciary. The reviewing courts would be placed in the undesirable and injudicious posture of becoming "superprosecutors." In the normal case of review of executive acts of discretion, the administrative record is open, public and reviewable on the basis of what it contains. The decision not to prosecute, on the other hand, may be based upon the insufficiency of the available evidence, in which event the secrecy of the grand jury and of the prosecutor's file may serve to protect the accused's reputation from public damage based upon insufficient, improper, or even malicious charges. In camera review would not be meaningful without access by the complaining party to the evidence before the grand jury or U.S. Attorney. Such interference with the normal operations of criminal investigations, in turn, based solely upon allegations of criminal conduct, raises serious questions of potential abuse by persons seeking to have other persons prosecuted. Any person, merely by filing a complaint containing allegations in general terms (permitted by the Federal Rules) of unlawful failure to prosecute, could gain access to the prosecutor's file and the grand jury's minutes, notwithstanding the secrecy normally attaching to the latter by law. See Rule 6(e), F.R.Cr.P.

Nor is it clear what the judiciary's role of supervision should be were it to undertake such a review. At what point would the prosecutor be entitled to call a halt to further investigation as unlikely to be productive? What evidentiary standard would be used to decide whether prosecution should be compelled? How much judgment would the United States Attorney be allowed? Would he be permitted to limit himself to a strong "test" case rather than pursue weaker cases? What collateral factors would be permissible bases for a decision not to prosecute, e. g., the pendency of another criminal proceeding elsewhere against the same parties? What sort of review should be available in cases like the present one where the conduct complained of allegedly violates state as well as federal laws? See generally, Schwartz, Federal Criminal Jurisdiction and Prosecutors' Discretion, 13 Law & Contemp.Prob. 64 (1948). With limited personnel and facilities at his disposal, what priority would the prosecutor be required to give to cases in which investigation or prosecution was directed by the court?

These difficult questions engender serious doubts as to the judiciary's capacity to review and as to the problem of arbitrariness inherent in any judicial decision to order prosecution. On balance, we believe that substitution of a court's decision to compel prosecution for the U.S. Attorney's decision not to prosecute, even upon an abuse of discretion standard of review and even if limited to directing that a prosecution be undertaken in good faith, see Note, Discretion [381] to Prosecute Federal Civil Rights Crimes, 74 Yale L.J. 1297, 1310-12 (1965), would be unwise.

Plaintiffs urge, however, that Congress withdrew the normal prosecutorial discretion for the kind of conduct alleged here by providing in 42 U.S.C. § 1987^[4] that the United States Attorneys are "authorized and required . . . to institute prosecutions against all persons violating any of the provisions of [18 U.S.C. §§ 241, 242]" (emphasis supplied), and, therefore, that no barrier to a judicial directive to institute prosecutions remains. This contention must be rejected. The mandatory nature of the word "required" as it appears in § 1987 is insufficient to evince a broad Congressional purpose to bar the exercise of executive discretion in the prosecution of federal civil rights crimes. Similar mandatory language is contained in the general direction in 28 U.S.C. § 547(1) ("each United States attorney, . . . shall—(1) prosecute for all offenses against the United States; . . ." (emphasis supplied)) and in other statutes in particular areas of concern, e. g., 33 U.S.C. § 413 ("it shall be the duty of United States attorneys to vigorously prosecute all offenders" of certain provisions of the Rivers and Harbors Act when requested to do so by the appropriate officials). See also 45 U.S.C. § 152 (Tenth).

Such language has never been thought to preclude the exercise of prosecutorial discretion. See Bass Angler's Sportsman's Society v. Scholze Tannery, Inc., 329 F.Supp. 339, 345-346 (E.D.Tenn. 1971). Indeed the same contention made here was specifically rejected in Moses v. Kennedy, 219 F.Supp. 762, 765 (D.D.C.1963), aff'd. 119 U.S.App.D.C. 352, 342 F.2d 931 (1965), where seven black residents and one white resident of Mississippi sought mandamus to compel the Attorney General of the United States and the Director of the F.B.I. to investigate, arrest, and prosecute certain individuals, including state and local law enforcement officers, for willfully depriving the plaintiffs of their civil rights. There the Court noted that "considerations of judgment and discretion apply with special strength to the area of civil rights, where the Executive Department must be largely free to exercise its considered judgment on questions of whether to proceed by means of prosecution, injunction, varying forms of persuasion, or other types of action." See also Peek v. Mitchell, supra.

Nor do we find the legislative history of § 1987 persuasive of an intent by Congress to depart so significantly from the normal assumption of executive discretion. In re Upchurch, 38 F. 25, 27 (C.C.N.C.1889), relied upon by plaintiffs, held only that a United States commissioner had the power under § 1987 to appoint a person other than the marshal, or one of his deputies, to execute process. It may well be that the legislative background of § 1987 would compel a reading that Congress intended that federal marshals have no choice but to execute warrants issued pursuant to that section, since it also provided for criminal penalties for those who refused to do so and for the appointment of other persons to execute warrants and make arrests. No such conclusion can persuasively be drawn with respect to the exercise by United States Attorneys of prosecutorial discretion, especially in the absence of any similar statutory deterrent [382] against their failure or refusal to prosecute. See Note, Discretion to Prosecute Federal Civil Rights Crimes, 74 Yale L. J. 1297, 1306-07 and n. 46 (1965). Thus, we do not read § 1987 as stripping the United States Attorneys of their normal prosecutorial discretion for the civil rights crimes specified.

It therefore becomes unnecessary to decide whether, if Congress were by explicit direction and guidelines to remove all prosecutorial discretion with respect to certain crimes or in certain circumstances we would properly direct that a prosecution be undertaken. Cf. Powell v. Katzenbach, supra, 359 F.2d at 235; Note, supra at 1305.

(2) Claims Against the State Officials

With respect to the state defendants, plaintiffs also seek prosecution of named and unknown persons for the violation of state crimes. However, they have pointed to no statutory language even arguably creating any mandatory duty upon the state officials to bring such prosecutions. To the contrary, New York law reposes in its prosecutors a discretion to decide whether or not to prosecute in a given case, which is not subject to review in the state courts. Hassan v. Magistrates Court, 20 Misc.2d 509, 191 N.Y.S.2d 238 (1959), appeal dismissed, 10 A.D.2d 908, 202 N.Y.S.2d 1002 (2d Dept.), leave to appeal denied, 8 N.Y.2d 750, 201 N.Y.S.2d 765, cert. denied, 364 U.S. 844, 81 S.Ct. 86, 5 L.Ed. 2d 68 (1960). Yet the federal district court is asked to compel state prosecutions and appoint an "impartial" state prosecutor and state judge to conduct them, as well as to require the submission of a plan for impartial investigation and prosecution of the alleged offenses, on the basis of 42 U.S.C. § 1983, in the context of a continuing grand jury investigation into criminal conduct connected with the Attica uprising, supra n. 1, and where the state itself on September 30, 1971, appointed a Special Commission on Attica which has now published its findings.^[5] The very elaborateness of the relief believed by plaintiffs to be required indicates the difficulties inherent in judicial supervision of prosecutions, federal or state, which render such a course inadvisable.

Plaintiffs point to language in our earlier opinion, Inmates of Attica Correctional Facility v. Rockefeller, 453 F.2d 12, 20 (2d Cir. 1971), to the effect that "the State has the duty to investigate and prosecute all persons, including inmates, who may have engaged in criminal conduct before, during and after the uprising." But the statement does not support their present demands. The existence of such a duty does not define its dimensions or imply that an alleged failure to perform the duty completely or equally, as between inmates and state officials, will support federal judicial supervision of state criminal prosecutions. The serious charge that the state's investigation is proceeding against inmates but not against state officers, if shown to be accurate, might lead the Governor to supplement or replace those presently in charge of the investigation or the state legislature to act. But the gravity of the allegation does not reduce the inherent judicial incapacity to supervise.

The only authority supporting the extraordinary relief requested here is the Seventh Circuit's recent decision in Littleton v. Berbling, 468 F.2d 389 (1972), cert. granted, 411 U.S. 915, 93 S.Ct. 1544, 36 L.Ed.2d 306 (1973). There a class of black citizens of Cairo, Illinois, brought suit for damages and injunctive relief against a state prosecutor, an investigator for him, a magistrate and a state judge, charging that the defendants had "systematically applied the state criminal laws so as to discriminate against plaintiffs and their class on the basis of race, interfering thereby with the free exercise of their constitutional [383] rights." Id. at 392. They alleged a long history indicating a concerted pattern of officially sponsored racial discrimination. In reversing the district court's dismissal of the complaint, a divided panel concluded that a state judge, while not subject to suit for damages under § 1983, Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), may be enjoined from unconstitutionally fixing bails and imposing sentences that discriminated sharply against black persons, and that the State Attorney's quasi-judicial immunity from suit for damages when performing his prosecutorial function, id. 468 F.2d at 410, "does not extend to complete freedom from injunction," id. at 411. Finding other possible remedies either unavailable or ineffective, the Court approved the possibility of some type of injunctive relief, not fully specified, but which might include a requirement of "periodic reports of various types of aggregate data on actions on bail and sentencing and dispositions of complaints." Id. at 415.

However, the decision in Littleton is clearly distinguishable. There the claim, unlike that here, alleged a systematic and lengthy course of egregious racial discrimination in which black persons were denied equal access to and treatment by the state criminal justice system. Furthermore, the Court's decision does not appear to have compelled the institution of criminal prosecutions, which is the principal relief sought here. In short, we believe that Littleton should be strictly limited to its peculiar facts, as apparently did the Court itself. See id. at 415. To the extent that it may be construed as approving federal judicial review and supervision of the exercise of prosecutorial discretion and as compelling the institution of criminal proceedings, we do not share such an extension of its views.

The order of the district court is affirmed.

[1] The State has pointed out that the special Wyoming County grand jury has already handed down 37 sealed indictments and has not yet completed its investigation. On oral argument, however, the Assistant Attorney General observed that none of the indictments handed down thus far concerns any state officer and, of course, that there is no assurance that further indictments will be forthcoming.

[2] See note 3 infra.

[3] As originally filed, the complaint also sought a declaratory judgment against defendants Rockefeller, Oswald, Dunbar, Mancusi, and other defendants named in the complaint, declaring them to be "unfit to administer Attica Correctional Facility and the prison system of New York," and an order permanently enjoining these state officials from further administration of the prison system and placing the entire system, including the facility at Attica, into federal receivership. The United States Magistrate for the Western District of New York, Edmund Maxwell, was also named as a defendant in the complaint. Prior to the hearing on the motions to dismiss, however, plaintiffs consented to the dismissal of that portion of the complaint which requested such relief and to the dismissal of Maxwell as a defendant.

[4] 1987. Prosecution of violation of certain laws

"The United States attorneys, marshals, and deputy marshals, the commissioners appointed by the district and territorial courts, with power to arrest, imprison, or bail offenders, and every other officer who is especially empowered by the President, are authorized and required, at the expense of the United States, to institute prosecutions against all persons violating any of the provisions of section 1990 of this title or of sections 5506 to 5516 and 5518 to 5532 of the Revised Statutes, and to cause such persons to be arrested, and imprisoned or bailed, for trial before the court of the United States or the territorial court having cognizance of the offense."

[1046] Gale Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Linda M. Davison and Katherine Clark, Asst. Attys. Gen., Denver, for plaintiff-appellee.

Charles R. Greenacre, Montrose, for defendant-appellant.

Opinion by Judge RULAND.

Defendant, Steven Patrick Adams, appeals from the trial court's order denying his motion to withdraw his guilty plea. We affirm.

Defendant, two other men, and a woman were in defendant's mobile home when one of the men was shot and killed with a pistol owned by defendant.

Defendant and the woman left and drove approximately 15 miles before telephoning the state patrol to report the shooting. In a taped conversation with the state patrol, defendant stated that he shot the victim while the victim was attempting a burglary. The woman, however, later advised officers that defendant shot the victim because of jealousy.

Defendant later gave two other versions of the shooting, one in which he claimed to have shot the victim in self-defense and one in which the woman allegedly shot the victim. Defendant's explanation for his first two statements was that he wanted to protect the woman. At some point, the woman was granted immunity by a prosecutor.

Defendant was charged with first degree murder, attempted first degree murder, assault in the second degree, and complicity as an accessory after the fact.

Even though defendant's monthly income exceeded the guidelines for appointment of free legal counsel, he completed an application and obtained letters from three private attorneys to prove that he could not pay for their services. Consequently, the county court appointed a private attorney to represent defendant.

Defendant was not satisfied with the services of private counsel. The court then appointed an attorney from the public defender's office who specializes in and has extensive experience in defending serious felony charges. A thorough investigation was conducted by an investigator for the public defender's office, and the case was set for a preliminary hearing.

Prior to the preliminary hearing, a written plea bargain was offered by the prosecution and ultimately accepted by defendant. As pertinent here, defendant agreed to plead guilty to the accessory charge in exchange for dismissal of the other charges and a sentence not to exceed four years. The sentence was to be served either in a community corrections facility or on probation.

The court approved the plea agreement. A providency hearing was conducted and, based upon the written plea agreement and defendant's responses to the court's inquiry, the court determined that the plea was voluntary. The court then scheduled a sentencing hearing.

During the course of the sentencing hearing, however, defendant determined that the court intended to sentence him to community corrections. Consequently, he protested and asked to withdraw his guilty plea. The court advised defendant to file a [1047] formal motion and informed him that his request would be then considered.

The court imposed a four-year sentence to a community corrections facility. Defendant later filed a formal motion to withdraw his plea and represented himself at the hearing on the motion. Defendant did not testify. Following presentation of other evidence and argument, the court entered a written order denying the motion.

I

Defendant contends that the trial court erred in failing to appoint an attorney to represent him at the hearing on his motion to vacate his plea. We disagree.

The initial burden to establish indigency is upon the defendant, and this burden requires defendant to establish the lack of funds, on a practical basis, to retain counsel. Nikander v. District Court, 711 P.2d 1260 (Colo.1986). In order to implement resolution of issues pertaining to appointment of counsel, the Chief Justice of the Colorado Supreme Court issued Directive 89-3 on October 19, 1989, establishing indigency guidelines.

As pertinent to this case, paragraph II A of the Directive provides:

1) All persons claiming to be indigent and asking for court appointed counsel must complete an application Form JDF208, signed under oath, which shall be reviewed by the court.

3) When the income of the person exceeds the eligibility guidelines, the court may, after conducting a hearing concerning the persons financial situation, find the person indigent ... Such finding shall not be made unless it is established that at least two attorneys will not provide legal services because the person is unable to pay their fee. (emphasis supplied)

Here, by letter, defendant initially requested appointment of counsel, specifying that he would not accept either the private attorney originally appointed to defend him or any attorneys in the public defender's office. The court promptly responded by letter advising defendant that it could not make an appointment based upon the letter alone. Enclosed with the letter, was an application form, and the court advised defendant that the application must be completed and returned.

However, the application form was not completed or returned. Instead, a few days later defendant contacted the court by telephone to discuss appointment of counsel. Defendant did not indicate his exact income in that conversation, but he confirmed that his income was over the guidelines. Nevertheless, he stated that he could not afford an attorney. The court encouraged defendant, at least, to discuss the case with an attorney to establish the cost for representation and then to seek qualification for partial indigency. Defendant failed to pursue this course of action as well.

On the date of the hearing, and prior to presentation of evidence, the court noted the correspondence and the contents of the telephone conversation. The court noted that defendant was present without counsel, and that defendant could proceed as he deemed appropriate. The court reminded defendant that the risk of proceeding without counsel was discussed in their telephone conversation, and defendant made no comment.

Under these circumstances, we are unable to conclude that defendant met his initial burden of establishing that, on a practical basis, he could not afford counsel. See Nikander v. District Court, supra.

Contrary to defendant's contention, and in light of the requirements contained in Directive 89-3, the court properly declined to rely upon defendant's unverified statements, made in his application for probation, as representing an accurate financial disclosure. Conversely, the fact that three attorneys declined to defend the homicide charges, on the basis of defendant's financial status approximately five months earlier, was not determinative of whether counsel could be obtained by defendant for purposes only of the hearing on his motion.

In addition, the record confirms that defendant was cognizant of and elected not [1048] to pursue the procedure for establishing a current need for free legal services. Finally, defendant does not controvert the court's statement on the record that he was advised of the risks of proceeding without counsel.

Under these circumstances, we find no error in the court's determination that defendant waived his right to counsel. See King v. People, 728 P.2d 1264 (Colo.1986).

II

Defendant next contends that the trial court erred in declining to set aside his plea. He reasons that he was coerced by defense counsel into accepting the plea disposition offered by the prosecution. We conclude that the trial court did not commit reversible error in denying defendant's motion.

Defendant carried the burden of establishing a "fair and just reason" for withdrawing his plea prior to imposition of sentence. People v. Gutierrez, 622 P.2d 547 (Colo.1981). And, to warrant the exercise of discretion favorable to a defendant concerning a change of plea, it must be shown that a defendant may have been influenced to enter a guilty plea when having a defense, or that defendant's plea was entered through fear, fraud, or official misrepresentation, or that the plea was made involuntarily for some reason. People v. Chavez, 730 P.2d 321 (Colo.1986). Finally, resolution of this issue is addressed to the sound discretion of the trial court, and we may not overturn its decision absent an abuse of that discretion. People v. Chippewa, 751 P.2d 607 (Colo.1988).

Here, defendant relies principally upon two tape recorded conversations he had with different attorneys from the public defender's office. One of the conversations was taped both by defendant and counsel. The conversation was the result of complaints made by defendant's parents to the public defender's office regarding defendant's legal representation. The second conversation was taped only by defendant, without disclosing to counsel that the conversation was being recorded. Apparently, because of a mechanical defect, only part of the conversation was recorded.

The transcripts reflect that counsel used strong and profane language in discussing defendant's failure to abide by counsel's admonition not to discuss the case with a critical witness (who recorded her conversation with defendant) and with law enforcement personnel. Similar language was used in discussing the prosecution's proffered plea bargain, the possibility that he would be convicted of first degree murder, the probability that defendant would receive a prison sentence for conviction of any of the charges if he did not accept the plea bargain, and the treatment defendant would receive in prison.

While the type of language used strikes us as inappropriate, the testimony of both attorneys stands unrebutted that this type of language was used by defendant. Moreover, it is uncontradicted that use of this language was necessary to assure that defendant understood their concerns about his view that he would be acquitted of all charges at trial.

Competent advice of counsel, albeit stated in strong language, does not constitute coercion standing alone. See Lunz v. Henderson, 533 F.2d 1322, (2d Cir.1976); Williams v. Chrans, 742 F.Supp. 472 (N.D.Ill.1990). And, the duty of defense counsel, after conducting a thorough investigation, is to discuss the case with complete candor and to offer the best estimate possible as to the outcome. See People v. Riley, 187 Colo. 262, 529 P.2d 1312 (1975).

A more difficult issue is posed by counsel's oft repeated predictions that defendant might be killed in prison, that he might "wish he were dead" after spending some time there, and that he would be sexually assaulted there. Defendant contends that these comments constitute a form of coercion which warrant setting aside the plea. We conclude to the contrary.

In addressing this contention, we first note that defendant, at one point, acknowledged in the recorded conversation that he [1049] did not doubt counsel's assessment that he was not "tough enough" for prison. We also note that counsel's testimony at the motion hearing was uncontroverted. He explained, in effect, that most suspects charged with first degree murder are held in some form of awe and are feared by other inmates. However, defendant had unspecified problems shortly after being taken into custody which were of great concern to counsel.

Finally, we note that defense counsel is not restricted to discussing the probable outcome of a case in discussing the propriety of a plea bargain. See 3 ABA, Standards for Criminal Justice, Standard 14-3.2 (2d ed. 1986).

Furthermore, even if we were to hold that these comments exceed the parameter of counsel's proper role of persuasion, we would, nevertheless, conclude that the trial court did not err in denying defendant's motion.

It is uncontroverted that defendant was represented by experienced and competent counsel. In the initial recorded conversation, counsel advised defendant that any decision to accept a plea bargain was solely his decision. Also, there is overwhelming record support for the proposition that acceptance of the plea bargain was in defendant's best interest, that his claimed defense to the accessory charge was specious, and that the probability of his receiving a prison sentence was very great if the bargain were rejected. Indeed, at the hearing on his motion, defendant, in effect, conceded that he was an accessory.

Still more persuasive to us is the record of the providency hearing itself. Before the hearing, and after discussing the proposed written plea with counsel, defendant signed a "petition to plead guilty" which explained, among other things, the effect of a guilty plea to the accessory charge, the plea bargain, and the rights being waived. The petition also confirmed that defendant was satisfied with his legal representation and that "no one has used any undue influence, threats or promises of leniency, favors or special consideration to get me to plead guilty against my will."

During the hearing, the court again explained the information set forth in the petition, and defendant confirmed, in his responses to questions from the court, that he understood the plea bargain, that he was satisfied with the services of counsel, and that he was not coerced to enter his plea. Conversely, there is ample record support for the court's finding that defendant was not promised probation. However, as noted, defendant did not request that his plea be changed until comments by the court, at the conclusion of the sentencing hearing, confirmed that the sentence would be to a community corrections facility.

Under these circumstances, we are unable to conclude that the trial court erred in denying defendant's motion.

The order is affirmed.

REED, J., concurs.

DUBOFSKY, J., dissents.

Judge DUBOFSKY dissenting.

I respectfully dissent.

In my view, the guilty plea was rendered involuntary by the repeated warnings of defendant's counsel that, if defendant was convicted after a trial and sentenced to the penitentiary, he would be repeatedly sodomized and then murdered.

A guilty plea must be entered voluntarily and with proper understanding. People v. Wells, 734 P.2d 655 (Colo.App.1986). A guilty plea is involuntary if it is induced by threats. People v. McClellan, 183 Colo. 176, 515 P.2d 1127 (1973). Also, a plea may be rendered involuntary by mental as well as physical coercion. See Pickens v. United States, 427 F.2d 349 (5th Cir.1970).

A guilty plea is void if shown to be actuated by misleading statements of counsel. Heideman v. United States, 281 F.2d 805 (8th Cir.1960). Further, a guilty plea resulting from false advice from counsel as to the sentence that would be imposed may be set aside as having been unlawfully coerced. United States v. Simpson, 436 F.2d 162 (D.C.Cir.1970).

[1050] Absent explicit instructions from his client to the contrary, defense counsel should normally pursue the alternatives to a trial that exist within a case, i.e., dismissal, plea bargain. Furthermore, if counsel receives a plea offer from the district attorney, he is obligated to inform his client both of the offer and his opinion of it. In some cases, defense counsel may refrain from making a recommendation as to whether defendant should accept the plea bargain. In other situations, defense counsel may conclude that the defendant should accept the district attorney's plea offer.

Here, counsel concluded that the only viable choice for defendant was to accept the plea offer to accessory after the fact of murder. From this record, it appears there were compelling reasons for defense counsel to reach this conclusion and make the recommendation that he did.

Nevertheless, the decision to accept a plea offer belongs solely to the defendant. While counsel may make his position known to defendant in forceful, clear, and certain terms, he cannot cross the line and coerce a defendant into accepting a guilty plea. Cf. People v. Gies, 738 P.2d 398 (Colo.App.1987).

Here, counsel repeatedly told defendant that if he went to trial he would be convicted and sentenced to prison and that once in prison, he would be repeatedly sodomized and then murdered. Because I believe that these repeated "threats" about what defendant would face in prison rendered defendant's plea involuntary, I conclude that the trial court erred in not setting aside the plea.

I recognize that accurately informing the defendant of the potential hazards of incarceration is a legitimate and responsible act of counsel in advising his client about the implications of a plea or trial. But, here, defense counsel went far beyond merely informing defendant of the hazards of incarceration; he repeatedly and definitively predicted that defendant would be sexually assaulted and killed. These warnings went far beyond a legitimate informational advisement and recommendation and constituted threats and coercion.

Among counsel's remarks that were beyond the scope of appropriate advice are the following.

So you're not tough enough for prison. You're just not tough enough for prison. That's all there is to it. So that any prison sentence is most probably for you a death sentence or very close. Because things would happen to you in prison that would cause you to wish you were dead or want to kill yourself. So, that's why, you know, you have to understand the risks.

....

It is my opinion that in the two years or four years or whatever it is, awaiting for the appellate court to decide [your case] that you'll be dead. You won't make it through prison. Ok.

....

And it won't do you any good because you'll be dead or your [anus] will be the size of a dinner plate ... a jury can say `you know, I'm not convinced anyone of them is telling the truth, but I believe beyond a reasonable doubt that Steven Adams committed second degree murder.' Ok. Then you go to prison and you're dead.

....

The judge says you're going to prison and away you go. And you're dead. Because you're not tough enough or you're going to wish you were dead.

....

If we won appeal, you wouldn't be worth a s..t if you came out of it alive. Ok?

....

I will feel bad if you get convicted of accessory after the fact of manslaughter and go to prison and die, I will be able to say I told you so. Right?

Furthermore, there was another earlier conversation with another public defender in which similar representations concerning defendant's death were made.

[1051] Here, defendant was a young man, age 26, who had never been in the penitentiary and was dependent on the representations of his counsel to assess what prison would be like. In such circumstances, the "browbeating" indulged in by counsel went far beyond just advising defendant of the dangers within the institution and, indeed, in my view became coercive.

The majority appears to give great weight to the fact that at the time of his plea, defendant acknowledged the elements of the offense and stated his plea was voluntary. However, by pleading to the elements of the offense and indicating that he has not been coerced, defendant may have been merely providing the "right" answers to the trial court to effectuate the coerced plea. Certainly, this does not mean defendant has not been coerced. See People v. Cole, 39 Colo.App. 323, 570 P.2d 8 (1977), aff'd in part, rev'd in part, 195 Colo. 483, 584 P.2d 71 (1978). See also United States v. Cowin, 565 F.2d 548 (8th Cir.1977) and United States v. Tateo, 214 F.Supp. 560 (S.D.N.Y.1963).

If, as suggested by the majority, counsel's predictions of defendant's life in prison are not coercive because, inter alia, defense counsel accurately described defendant's future plight in the penitentiary, then a far graver problem is presented. If young men who have not been previously incarcerated face repeated sexual assaults and murder as part of their sentence to the penitentiary and, in an effort to avoid these assaults, enter guilty pleas to crimes they did not commit, then the constitutionality of the criminal justice system and the penal system are in doubt. Not only does the threat of criminal violence impermissibly coerce defendant in violation of his constitutional rights, but the operation of a penal system where such violence is rampant is also unconstitutional. See Ramos v. Lamm, 485 F.Supp. 122 (D.Colo.1979); McCray v. Sullivan, 509 F.2d 1332 (5th Cir.1975) (the Eighth Amendment may require a classification system which separates inmates according to offense and physically aggressive tendencies).

Finally, I believe it is of great significance that defendant moved to withdraw his guilty plea prior to being sentenced.

In my opinion, absent a showing of detrimental reliance by the district attorney in response to defendant's guilty plea, i.e., loss of witnesses or evidence, a defendant should be freely and liberally permitted to withdraw a guilty plea prior to sentencing. See United States v. King, 618 F.2d 550 (9th Cir.1980); United States v. Hamm, 659 F.2d 624 (5th Cir.1981).

A defendant has a constitutional right to have the prosecution prove each element of the offense beyond a reasonable doubt against him. See In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). And, an accused's exercise of that right by insisting upon a trial should be freely permitted, both for the benefit of the individual and for the viability of the criminal justice system itself.

Accordingly, I would reverse the judgment and remand for trial on all charges.

Page 597

        Arthur K. Wachtel, San Francisco, CA, argued the case for the appellant and was on the briefs. Maitreya Badami was also on the briefs.

        Kelley Brooke Snyder, U.S. Department of Justice, Washington, DC, argued the case for the appellee and was on the briefs. Kevin Ryan, United States Attorney, and Hannah Horsley and Anne-Christine Massullo, Assistant United States Attorneys, were also on the briefs.

        Elizabeth M. Falk, Office of the Federal Public Defender, San Francisco, CA, argued the case for amicus curiae Federal Public Defender for the Northern District of California and was on the briefs. Barry J. Portman, Federal Public Defender, was also on the briefs.

Page 598

        Appeal from the United States District Court for the Northern District of California, Vaughn R. Walker, District Judge, Presiding. D.C. No. CR-01-00454-VRW.

        Before: O'SCANNLAIN, SILER, JR.,^* and HAWKINS, Circuit Judges.

        O'SCANNLAIN, Circuit Judge:

        We must decide the legality of a supervised release condition that requires a convicted mail thief to spend a day standing outside a post office wearing a signboard stating, "I stole mail. This is my punishment."

        Shawn Gementera pilfered letters from several mailboxes along San Francisco's Fulton Street on May 21, 2001. A police officer who observed the episode immediately detained Gementera and his partner in crime, Andrew Choi, who had been stuffing the stolen letters into his jacket as Gementera anxiously kept watch. After indictment, Gementera entered a plea agreement pursuant to which he pled guilty to mail theft, see 18 U.S.C. § 1708, and the government dismissed a second count of receiving a stolen U.S. Treasury check. See 18 U.S.C. § 641.

        The offense was not Gementera's first encounter with the law. Though only twenty-four years old at the time, Gementera's criminal history was lengthy for a man of his relative youth, and it was growing steadily more serious. At age nineteen, he was convicted of misdemeanor criminal mischief. He was twice convicted at age twenty of driving with a suspended license. At age twenty-two, a domestic dispute led to convictions for driving with a suspended license and for failing to provide proof of financial responsibility. By twenty-four, the conviction was misdemeanor battery. Other arrests and citations listed in the Presentence Investigation Report included possession of drug paraphernalia, additional driving offenses (most of which involved driving on a license suspended for his failure to take chemical tests), and, soon after his twenty-fifth birthday, taking a vehicle without the owner's consent.

        On February 25, 2003, Judge Vaughn Walker of the United States District Court for the Northern District of California sentenced Gementera. The U.S. Sentencing Guidelines range was two to eight months incarceration; Judge Walker sentenced Gementera to the lower bound of the range, imposing two months incarceration and three years supervised release.¹ He also imposed conditions of supervised release.

        One such condition required Gementera to "perform 100 hours of community service," to consist of "standing in front of a postal facility in the city and county of San Francisco with a sandwich board which in large letters declares: `I stole mail. This is my punishment.'"² Gementera later filed a motion to correct the sentence by

Page 599

removing the sandwich board condition. See Fed.R.Crim.P. 35(a).

        Judge Walker modified the sentence after inviting both parties to present "an alternative form or forms of public service that would better comport with the aims of the court." In lieu of the 100-hour signboard requirement, the district court imposed a four-part special condition in its stead. Three new terms, proposed jointly by counsel, mandated that the defendant observe postal patrons visiting the "lost or missing mail" window, write letters of apology to any identifiable victims of his crime, and deliver several lectures at a local school.³ It also included a scaled-down version of the signboard requirement:

        The defendant shall perform 1 day of 8 total hours of community service during which time he shall either (i) wear a two-sided sandwich board-style sign or (ii) carry a large two-sided sign stating, "I stole mail; this is my punishment," in front of a San Francisco postal facility identified by the probation officer. For the safety of defendant and general public, the postal facility designated shall be one that employs one or more security guards. Upon showing by defendant that this condition would likely impose upon defendant psychological harm or effect or result in unwarranted risk of harm to defendant, the public or postal employees, the probation officer may withdraw or modify this condition or apply to the court to withdraw or modify this condition.

        On March 4, 2003, the court denied the Rule 35 motion and amended the sentence as described above. Gementera timely appealed.⁴

        We first address Gementera's argument that the eight-hour sandwich

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board condition violates the Sentencing Reform Act.⁵ See 18 U.S.C. § 3583(d).

        The Sentencing Reform Act affords district courts broad discretion in fashioning appropriate conditions of supervised release, while mandating that such conditions serve legitimate objectives. In addition to "any condition set forth as a discretionary condition of probation in section 3563(b)(1) through (b)(10) and (b)(12) through (b)(20)," the statute explicitly authorizes the court to impose "any other condition it considers to be appropriate." 18 U.S.C. § 3583(d)(emphasis added). Such special conditions, however, may only be imposed "to the extent that such condition —

        (1) is reasonably related to the factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D);

        (2) involves no greater deprivation of liberty than is reasonably necessary for the purposes set forth in section 3553(a)(2)(B), (a)(2)(C), and (a)(2)(D); and

        (3) is consistent with any pertinent policy statements issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a)";

        18 U.S.C. 3583(d). Thus, to comply with this requirement, any condition must be "reasonably related" to "the nature and circumstances of the offense and the history and characteristics of the defendant." See 18 U.S.C. 3553(a)(1). Moreover, it must be both "reasonably related" to and "involve no greater deprivation of liberty than is reasonably necessary" to "afford adequate deterrence to criminal conduct," see id. at 3553(a)(2)(B), "protect the public from further crimes of the defendant," see id. at 3553(a)(2)(C), and "provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner." See id. at 3553(a)(2)(D).⁶ Accordingly, the three legitimate statutory purposes of deterrence, protection of the public, and rehabilitation frame our analysis. E.g., United States v. Rearden, 349 F.3d 608, 618 (9th Cir.2003); United States v. T.M., 330 F.3d 1235, 1240 (9th Cir.2003).⁷

        Within these bounds, we have recognized the flexibility and considerable discretion the district courts exercise to impose conditions of supervised release, up to and including limits upon the exercise of

Page 601

fundamental rights. See 18 U.S.C. § 3583(d) (granting authority to impose "any other condition it considers to be appropriate"); United States v. Hurt, 345 F.3d 1033, 1036 (9th Cir.2003) ("[T]he district court ... has wide discretion to act in the interest of the defendant and the public."); United States v. Bolinger, 940 F.2d 478, 480 (9th Cir.1991) ("The sentencing judge has broad discretion in setting probation conditions, including restricting fundamental rights."). This reflects, in part, their greater knowledge of and experience with the particular offenders before them. We have, for example, upheld conditions barring possession of sexually stimulating material, United States v. Bee, 162 F.3d 1232, 1234 (9th Cir.1998), contact with minors, id., association or membership in "motorcycle clubs," Bolinger, 940 F.2d at 480, and access to the internet, Rearden, 349 F.3d at 620.

        Of course, the district court's discretion, while broad, is limited — most significantly here, by the statute's requirement that any condition reasonably relate to a legitimate statutory purpose.⁸ "This test is applied in a two-step process; first, this court must determine whether the sentencing judge imposed the conditions for permissible purposes, and then it must determine whether the conditions are reasonably related to the purposes." United States v. Terrigno, 838 F.2d 371, 374 (9th Cir.1988). Gementera's appeal implicates both steps of the analysis.

        Gementera first urges that the condition was imposed for an impermissible purpose of humiliation. See 18 U.S.C. § 3553(a). He points to certain remarks of the district court at the first sentencing hearing:

        [H]e needs to understand the disapproval that society has for this kind of conduct, and that's the idea behind the humiliation. And it should be humiliation of having to stand and be labeled in front of people coming and going from a post office as somebody who has stolen the mail.

        According to Gementera, these remarks, among others, indicate that the district court viewed humiliation as an end in itself and the condition's purpose.

        Reading the record in context, however, we cannot but conclude that the district court's stated rationale aligned with permissible statutory objectives. At the second sentencing hearing, when the sentence was amended to what is now before us, the court explained: "[U]ltimately, the objective here is, one, to deter criminal conduct, and, number two, to rehabilitate the offender so that after he has paid his punishment, he does not reoffend, and a public expiation of having offended is, or at least it should be, rehabilitating in its effect." Although, in general, criminal punishment "is or at least should be humiliating," the court emphasized that "[h]umiliation is not the point." The court's

Page 602

written order similarly stresses that the court's goal was not "to subject defendant to humiliation for humiliation's sake, but rather to create a situation in which the public exposure of defendant's crime and the public exposure of defendant to the victims of his crime" will serve the purposes of "the rehabilitation of the defendant and the protection of the public."

        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. In short, it explained:

        While humiliation may well be — indeed likely will be — a feature of defendant's experience in standing before a post office with such a sign, the humiliation or shame he experiences should serve the salutary purpose of bringing defendant in close touch with the real significance of the crime he has acknowledged committing. Such an experience should have a specific rehabilitative effect on defendant that could not be accomplished by other means, certainly not by a more extended term of imprisonment.

        Moreover, "[i]t will also have a deterrent effect on both this defendant and others who might not otherwise have been made aware of the real legal consequences of engaging in mail theft."

        Read in its entirety, the record unambiguously establishes that the district court imposed the condition for the stated and legitimate statutory purpose of rehabilitation and, to a lesser extent, for general deterrence and for the protection of the public. See 18 U.S.C. § 3553(a); see generally United States v. Clark, 918 F.2d 843, 848 (9th Cir.1990) (affirming public apology condition when "[t]he record supports the conclusion that the judge imposed the requirement of a public apology for rehabilitation."), overruled on other grounds by United States v. Keys, 133 F.3d 1282 (9th Cir.1998) (en banc). We find no error in the condition's purpose.

        Assuming the court articulated a legitimate purpose, Gementera asserts, under the second prong of our test, see Terrigno, 838 F.2d at 374, that humiliation or so-called "shaming" conditions are not "reasonably related" to rehabilitation. In support, he cites our general statements that conditions must be reasonably related to the statutory objectives, see Consuelo-Gonzalez, 521 F.2d at 262 ("[E]ven though the trial judge has very broad discretion in fixing the terms and conditions of probation, such terms must be reasonably related to the purposes of the Act."), several state court decisions,⁹ and several law review

Page 603

articles that were not presented to the district court.

        In evaluating probation and supervised release conditions, we have emphasized that the "reasonable relation" test is necessarily a "very flexible standard," and that such flexibility is necessary because of "our uncertainty about how rehabilitation is accomplished." Id. at 264. While our knowledge of rehabilitation is limited, we have nonetheless explicitly held that "a public apology may serve a rehabilitative purpose." Clark, 918 F.2d at 846; see also Gollaher v. United States, 419 F.2d 520, 530 (9th Cir.1969) ("It is almost axiomatic that the first step toward rehabilitation of an offender is the offender's recognition that he was at fault."). Of course, for Gementera to prevail, introducing mere uncertainty about whether the condition aids rehabilitation does not suffice; rather, he must persuade us that the condition's supposed relationship to rehabilitation is unreasonable.

        We considered a similar question in Clark, a case involving two police officers convicted of perjury in a civil rights lawsuit they brought against their department. Clark, 918 F.2d at 844. In a deposition, the officers lied about a past episode in which they had falsely phoned in sick while actually en route to a vacation. As a probation condition, the court required them to publish a detailed apology in the local newspaper and in the police department newsletter. Id. at 845. Though they challenged the condition based upon the First Amendment, we applied the same test applicable here, concluding that "[b]ecause

Page 604

the probation condition was reasonably related to the permissible end of rehabilitation, requiring it was not an abuse of discretion." Id. at 848.

        Both Clark and Gementera involve defendants who seemingly failed to confront their wrongdoing, and the defendants in each case faced public expiation and apology. In Clark, the defendants had neither admitted guilt nor taken responsibility for their actions. Id. at 848. Here, by contrast, the defendant pled guilty. His plea decision is unremarkable, though, given that he had been apprehended red-handed. Reflecting upon the defendant's criminal history, the court expressed concern that he did not fully understand the consequences of his continued criminality, and had not truly accepted responsibility.¹⁰ The court explained:

        [T]his is a young man who needs to be brought face-to-face with the consequences of his conduct. He's going down the wrong path in life. At age 24, committing this kind of an offense, he's already in a criminal history category 4, two-thirds of the way up the criminal history scale. He needs a wake-up call.

        The court also determined that Gementera needed to be educated about the seriousness of mail crimes in particular, given that they might appear to be victimless:

        One of the features of Mr. Gementera's offense is that he, unlike some offenders did not, by the very nature of this offense, come face-to-face with his victims. He needs to be shown that stealing mail has victims; that there are people who depend upon the integrity and security of the mail in very important ways and that a crime of the kind that he committed abuses that trust which people place in the mail. He needs to see that there are people who count on the mails and integrity of the mails. How else can he be made to realize that than by coming face-to-face with people who use the postal service? That's the idea.

        As with Clark, the district court concluded that public acknowledgment of one's offense — beyond the formal yet sterile plea in a cloistered courtroom — was necessary to his rehabilitation.

        It is true, of course, that much uncertainty exists as to how rehabilitation is best accomplished. See Consuelo-Gonzalez, 521 F.2d at 264. Were that picture clearer, our criminal justice system would be vastly different, and substantially improved. By one estimate, two-thirds of the 640,000 state and federal inmates who will be released in 2004 will return to prison within a few years. The Price of Prisons, N.Y. Times, June 26, 2004, at A26. See Bureau of Justice Statistics, Dep't of Justice, Recidivism of Prisoners Released in 1994 (2002) (finding 67.5% recidivism rate among study population of 300,000 prisoners released in 1994). The cost to humanity of our ignorance in these matters is staggering.

        Gementera and amicus contend that shaming conditions cannot be rehabilitative because such conditions necessarily cause the offender to withdraw from society or otherwise inflict psychological damage, and they would erect a per se bar against such conditions.¹¹ See Toni Massaro, Shame, Culture, and American Criminal Law, 89

Page 605

Mich. L.Rev. 1880, 1920-21 (1991) ("When it works, it redefines a person in a negative, often irreversible way" and the "psychological core" it affects cannot thereafter be rebuilt.); see generally June Price Tagney et al., Relation of Shame and Guilt to Constructive Versus Destructive Responses to Anger Across the Lifespan, 70 J. Psych. & Soc. Psych. 797-98 (1996); June Price Tagney et al., Shamed into Anger? The Relation of Shame and Guilt to Anger and Self-Reported Aggression, 62 J. Psych & Soc. Psych. 669-675 (1992). Though the district court had no scientific evidence before it, as Gementera complains, we do not insist upon such evidence in our deferential review.¹² Moreover, the fact is that a vigorous, multifaceted, scholarly debate on shaming sanctions' efficacy, desirability, and underlying rationales continues within the academy. See, e.g., Dan M. Kahan & Eric A. Posner, Shaming White-Collar Criminals: A Proposal for Reform of the Federal Sentencing Guidelines, 42 J.L. & Econ. 365, 371 (1999) (urging use of stigmatic punishments for white-collar criminals); Stephen P. Garvey, Can Shaming Punishments Educate?, 65 U. Chi. L.Rev. 733, 738-39 (1998); Dan M. Kahan, What Do Alternative Sanctions Mean?, 63 U. Chi. L.Rev. 591 (1996) (arguing that shaming sanctions reinforce public norms against criminality). By no means is this conversation one-sided.

        Criminal offenses, and the penalties that accompany them, nearly always cause shame and embarrassment. United States v. Koon, 34 F.3d 1416, 1454 (9th Cir.1994) ("Virtually all individuals who are convicted of serious crimes suffer humiliation and shame, and many may be ostracized by their communities."). Indeed, the mere fact of conviction, without which state-sponsored rehabilitation efforts do not commence, is stigmatic. The fact that a condition causes shame or embarrassment does not automatically render a condition objectionable; rather, such feelings generally signal the defendant's acknowledgment of his wrongdoing. See Webster's Ninth New Collegiate Dictionary 1081 (1986) (defining shame as "a painful emotion caused by consciousness of guilt, shortcoming, or impropriety"); see also Gollaher, 419 F.2d at 530. We have recognized that "the societal consequences that

Page 606

flow from a criminal conviction are virtually unlimited," and the tendency to cause shame is insufficient to extinguish a condition's rehabilitative promise, at least insofar as required for our flexible reasonable relation test. Koon, 34 F.3d at 1454.

        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, including lecturing at a high school and writing apologies, that might loosely be understood to promote the offender's social reintegration. See Note, Shame, Stigma, and Crime: Evaluating the Efficacy of Shaming Sanctions in Criminal Law, 116 Harv. L.Rev. 2186 (2003) (proposing how shaming sanctions may be structured to promote social reintegration most effectively); John Braithwaite, Crime, Shame and Reintegration 55 (1989) ("The crucial distinction is between shaming that is reintegrative and shaming that is disintegrative (stigmatization). Reintegrative shaming means that expressions of community disapproval, which may range from mild rebuke to degradation ceremonies, are followed by gestures of reacceptance into the community of law-abiding citizens."). We see this factor as highly significant. In short, here we consider not a stand-alone condition intended solely to humiliate, but rather a comprehensive set of provisions that expose the defendant to social disapprobation, but that also then provide an opportunity for Gementera to repair his relationship with society — first by seeking its forgiveness and then by making, as a member of the community, an independent contribution to the moral formation of its youth.¹³ These provisions,¹⁴ tailored to the specific needs of the offender,¹⁵ counsel in favor of concluding that the condition passes the threshold of being reasonably related to rehabilitation.

        Finally, we are aware that lengthier imprisonment was an alternative available to

Page 607

the court. The court, however, reasoned that rehabilitation would be better achieved by a shorter sentence, coupled with the additional conditions: "It would seem to me that he's better off with a taste of prison, rather than a longer prison sentence, and some form of condition of release that brings him face-to-face with the consequences of his crime." The judge's reasoning that rehabilitation would better be served by means other than extended incarceration and punishment is plainly reasonable, see Dan M. Kahan, What Do Alternative Sanctions Mean?, 63 U. Chi. L.Rev. 591, 653 n. 89 ("[I]t became clear by the middle of the [19th] century that imprisonment was ill suited to rehabilitation...." (internal citations omitted)), particularly in light of the significant economic disadvantages that attach to prolonged imprisonment. See generally Jeffrey Kling, Bruce Western, & David Weiman, Labor Market Consequences of Incarceration, 47 Crime & Delinquency 410-27 (2001) (reviewing the literature); Jeffrey Grogger, The Effect of Arrests on the Employment and Earnings of Young Men, 110 Quarterly J. Economics 51-72 (1995) (finding that incarcerative sentences have substantial effects on earnings in comparison with parole).

        Accordingly, we hold that the condition imposed upon Gementera reasonably related to the legitimate statutory objective of rehabilitation.¹⁶ In so holding, we are careful not to articulate a principle broader than that presented by the facts of this case. With care and specificity, the district court outlined a sensible logic underlying its conclusion that a set of conditions, including the signboard provision, but also including reintegrative provisions, would better promote this defendant's rehabilitation and amendment of life than would a lengthier term of incarceration. By contrast, a per se rule that the mandatory public airing of one's offense can never assist an offender to reassume his duty of obedience to the law would impose a narrow penological orthodoxy not contemplated by the Guidelines' express approval of "any other condition [the district court] considers to be appropriate." 18 U.S.C. § 3583(d).

        Gementera also urges that the sandwich board condition violates the Constitution. Claims with respect to the First, Fifth, Eighth, and Fourteenth Amendments are presented.

        Amicus argues that the condition violates the First, Fifth, Eighth and Fourteenth Amendments. Gementera bases his appeal solely upon the Eighth Amendment, and the government contends that the additional constitutional arguments presented by the amicus have been waived.

        "Generally, we do not consider on appeal an issue raised only by an amicus." Swan v. Peterson, 6 F.3d 1373, 1383 (9th Cir.1993). The court has considered arguments of a jurisdictional nature raised only by amici, Stone v. San Francisco, 968 F.2d 850, 855 (9th Cir.1992) ("Issues touching on federalism and comity may be considered sua sponte."), and it has addressed purely legal questions when the parties express an intent to adopt the arguments as their own. United States v. Van Winrow, 951 F.2d 1069, 1072 (9th Cir.1991) ("Because [litigant] states in his brief that he wishes to adopt [amicus'] arguments as

Page 608

his own, and because they present pure issues of law, we will consider them here."). See also Artichoke Joe's Cal. Grand Casino v. Norton, 353 F.3d 712, 719(9th Cir.2003) ("In the absence of exceptional circumstances, which are not present here, we do not address issues raised only in an amicus brief."); Russian River Watershed Protection Comm. v. City of Santa Rosa, 142 F.3d 1136, 1141 (9th Cir.1998) (declining to address issue raised by amicus for first time on appeal when the appellee did not adopt the amicus' argument in its brief). Gementera did not adopt amicus' constitutional arguments on appeal. Though the government urged in its reply brief that these arguments had been waived, Gementera again declined to incorporate the arguments or otherwise address the waiver argument in its own reply. Accordingly, we decline to address the First, Fifth and Fourteenth Amendment claims.

        We turn then to the Eighth Amendment, which forbids the infliction of "cruel and unusual punishments." U.S. Const. amend. VIII. "The basic concept underlying the Eighth Amendment was nothing less than the dignity of man." Trop v. Dulles, 356 U.S. 86, 100, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958) (finding denationalization of military deserters cruel and unusual). Consistent with human dignity, the state must exercise its power to punish "within the limits of civilized standards." Id.

        A particular punishment violates the Eighth Amendment if it constitutes one of "those modes or acts of punishment that had been considered cruel and unusual at the time that the Bill of Rights was adopted." Ford v. Wainwright, 477 U.S. 399, 405, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986). Shaming sanctions of far greater severity were common in the colonial era, see, e.g., Smith v. Doe, 538 U.S. 84, 97-98, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003); Lawrence Friedman, Crime and Punishment in American History 38 (1993), and the parties do not quarrel on this point.

        The Amendment's prohibition extends beyond those practices deemed barbarous in the 18th century, however. See Stanford v. Kentucky, 492 U.S. 361, 369-70, 109 S.Ct. 2969, 106 L.Ed.2d 306 (1989). "[T]he words of the Amendment are not precise, and [] their scope is not static. The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." Trop, 356 U.S. at 100-01, 78 S.Ct. 590; id. at 100, 78 S.Ct. 590 ("Fines, imprisonment and even execution may be imposed depending upon the enormity of the crime, but any technique outside the bounds of these traditional penalties is constitutionally suspect."). In assessing what standards have so evolved, we look "to those of modern American society as a whole," Stanford, 492 U.S. at 369, 109 S.Ct. 2969, relying upon "objective factors to the maximum possible extent," Coker v. Georgia, 433 U.S. 584, 592, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977) (plurality opinion), rather than "our own conceptions of decency." Stanford, 492 U.S. at 369, 109 S.Ct. 2969.

        The parties have offered no evidence whatsoever, aside from bare assertion, that shaming sanctions violate contemporary standards of decency. But the occasional imposition of such sanctions is hardly unusual, particularly in our state courts. See, e.g., Stephen P. Garvey, Can Shaming Punishments Educate?, 65 U. Chi. L.Rev. 733, 734 (1998) (describing proliferation of unorthodox and creative shaming punishments); infra at note 18. Aside from a

Page 609

single case presenting concerns not at issue here,¹⁷ we are aware of no case holding that contemporary shaming sanctions violate our Constitution's prohibition against cruel and unusual punishment.¹⁸

        We do, however, note that Blanton v. N. Las Vegas, 489 U.S. 538, 109 S.Ct. 1289, 103 L.Ed.2d 550 (1989), is instructive, if only indirectly. In Blanton, the Court considered whether a Nevada DUI defendant

Page 610

was entitled to a jury trial pursuant to the Sixth Amendment. The inquiry into whether the offense constituted a petty crime not subject to the Sixth Amendment trial provision required the Court to evaluate the severity of the maximum authorized penalty. Id. at 541, 109 S.Ct. 1289. The statute provided a maximum sentence of six months or, alternatively, forty-eight hours of community service while dressed in distinctive garb identifying the defendant as a DUI offender, payment of a $200-$1000 fine, loss of driving license, and attendance at an alcohol abuse course. Id. at 539-40, 109 S.Ct. 1289. The Court wrote:

        We are also unpersuaded by the fact that, instead of a prison sentence, a DUI offender may be ordered to perform 48 hours of community service dressed in clothing identifying him as a DUI offender. Even assuming the outfit is the source of some embarrassment during the 48-hour period, such a penalty will be less embarrassing and less onerous than six months in jail.

        Id. at 544, 109 S.Ct. 1289; but see id. at 544 n. 10 ("We are hampered in our review of the clothing requirement because the record from the state courts contains neither a description of the clothing nor any details as to where and when it must be worn."). Just as the Court concluded that 48 hours of service dressed in distinctive DUI garb was less onerous than six months imprisonment, it would stretch reason to conclude that eight hours with a signboard, in lieu of incarceration, constitutes constitutionally cruel and unusual punishment.

        In the absence of any evidence to the contrary, and particularly in comparison with the reality of the modern prison, we simply have no reason to conclude that the sanction before us exceeds the bounds of "civilized standards" or other "evolving standards of decency that mark the progress of a maturing society." Trop, 356 U.S. at 100-01, 78 S.Ct. 590.

        AFFIRMED.

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Notes:

* The Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting by designation.

1. The court explained that, while it would have been strongly inclined to impose home confinement had Gementera's criminal history been better, the court felt that "given the unpromising road that the defendant has been following, that he needs to have a taste of federal custody, to be sure a brief one, but he needs to understand that if he continues on the course that he has set for himself at his age he's going to be facing a lot more serious charges in the future."

2. At sentencing, the judge addressed Gementera: "[W]e've also discussed the fact that you need to be reminded in a very graphic way of exactly what the crime you committed means to society. That is, the idea of you standing out in front of a post office with a board labeling you as somebody who has stolen mail." Gementera replied, "If that's the case, I would stand in front of a post office with a board as my penalty for the crime that I did commit. And as long as I can get home detention so I can get my family back together, get back on track and rehabilitation myself." After the court imposed incarceration, rather than home detention, Gementera's counsel asked that the 100 hours be changed to "up to 100 hours at the discretion of the probation officer." That request was denied. Though the court had acknowledged explicitly that the condition would cause humiliation, Gementera did not challenge the condition's legality nor did he ask the court to explain or elaborate its purpose at the first hearing.

3. The first three parts of the four-part special condition mandated:

        a. The defendant shall, at the direction of the probation officers, spend 4 days of 8 total hours each at a postal facility where there is a lost and found window, observing postal patrons who visit that window to inquire about lost or missing mail;

        b. The defendant shall, with the assistance of counsel, carefully examine all Rule 16 discovery materials in the possession of the United States to determine the identity of all ascertainable victims of the defendant's crime; having identified those persons, the defendant shall compose and address a personal letter to each of these persons individually expressing defendant's remorse for the specific conduct that harmed that person; the defendant shall provide each such victim with the address of his counsel, through whom any victim who wishes to contact the defendant directly may do so.

        c. The defendant shall deliver three educational lectures at three San Francisco high schools, to be identified by the probation officer and under the probation officer's direction, in which the defendant shall describe the crime he has committed, express his remorse for his criminal conduct and articulate to the students in attendance how his conviction and sentence have affected his life and future plans.

4. Gementera was ordered to surrender on March 31, 2003. On March 12, 2003, prior to his surrender, Gementera was arrested for possession of stolen mail, for which he was convicted and received a twenty-four month sentence.

5. The court generally reviews supervised release conditions for abuse of discretion, see United States v. Williams, 356 F.3d 1045, 1052 (9th Cir.2004), though we review de novo the interpretation of the Sentencing Guidelines, see United States v. Garcia, 323 F.3d 1161, 1164 (9th Cir.2003), and "[w]hether the sentence imposed was `illegal,'" see United States v. Fowler, 794 F.2d 1446, 1449 (9th Cir.1986), for example, by exceeding "the permissible statutory penalty for the crime [] or [by being] in violation of the Constitution." United States v. Johnson, 988 F.2d 941, 943 (9th Cir.1993).

6. Any condition must also be consistent with the Sentencing Commission's policy statements. See 18 U.S.C. § 3583(d); 28 U.S.C. § 994(a). The parties have not raised arguments with respect to this requirement.

7. Though the statutory authorities underlying conditions of probation and supervised release are distinct, compare 18 U.S.C. § 3583(authorizing supervised release conditions) with 18 U.S.C. § 3563(authorizing probation conditions), the court's supervised release jurisprudence has often relied upon authority from the probation context. See, e.g., United States v. Hurt, 345 F.3d 1033, 1035 (9th Cir.2003); United States v. Pinjuv, 218 F.3d 1125, 1131 (9th Cir.2000); United States v. Bee, 162 F.3d 1232, 1234-35 (9th Cir.1998). In that context, the court probes the extent to which probation conditions serve the "dual objectives of rehabilitation and public safety." See United States v. Consuelo-Gonzalez, 521 F.2d 259, 265 (9th Cir.1975) (en banc).

8. Gementera points to several cases in which our sister circuits found that conditions did not reasonably relate. See United States v. Abrar, 58 F.3d 43 (2d Cir.1995) (repayment of unrelated debts); United States v. Prendergast, 979 F.2d 1289 (8th Cir.1992) (abstinence from alcohol for wire fraud conviction); United States v. Smith, 972 F.2d 960, 961-62 (8th Cir.1992) (not siring children except by wife for a narcotics conviction); Fiore v. United States, 696 F.2d 205, 208-10 (2d Cir.1982) (making reparations for crime to which only a co-defendant had pled guilty). He also cites Springer v. United States, 148 F.2d 411, 415-16 (9th Cir.1945), in which this court vacated a condition that a convicted draft-dodger donate a pint of blood to the Red Cross. Id. In each of these cases, however, the condition was unrelated to the nature and substance of the offense. Here, there is no reasonable dispute that the signboard declaration is related to the offense.

9. In People v. Hackler, 13 Cal.App.4th 1049, 16 Cal.Rptr.2d 681 (Cal.Ct.App.1993), a California court vacated a condition requiring a defendant during his first year of probation to wear a t-shirt whenever he was outside his home. The t-shirt read, "My record plus two-six packs equal four years," and on the back, "I am on felony probation for theft." Noting with disapproval the trial court's stated intention of "going back to some extent to the era of stocks" and transforming the defendant into "a Hester Prin [sic]," id. at 1058, 16 Cal.Rptr.2d 681, the court held that the t-shirt could not serve the rehabilitative purpose because it would render the defendant unemployable. By contrast, Gementera's condition was sharply limited temporally (eight hours) and spatially (one post office in a large city), eliminating any risk that its effects would similarly spill over into all aspects of the defendant's life. Indeed, the district court's imposition of the condition in lieu of lengthier incarceration enables Gementera to enter the private labor market.

        People v. Johnson, 174 Ill.App.3d 812, 124 Ill.Dec. 252, 528 N.E.2d 1360 (1988), involved a condition that a DWI offender publish a newspaper advertisement with apology and mug shot. Interpreting the state supervision law as intended "to aid the defendant in rehabilitation and in avoiding future violations," and for no other purpose, the court held that the publication requirement "possibly, adds public ridicule as a condition" of supervision and could inflict psychological harm that disserves the goal of rehabilitation. Id. at 1362 (noting that the Illinois statute does not "refer to deterrent to others"). Relying on the fact that defendant was a young lady and a good student with no prior criminal record, had injured no one, and otherwise had no alcohol or drug problem, it found the condition impermissible, given the perceived mental health risk. Id. By contrast, we have specifically held that mandatory public apology may be rehabilitative. Clark, 918 F.2d at 848 ("[A] public apology may serve a rehabilitative purpose."). Moreover, the condition specifically provided that the signboard requirement would be withdrawn if the defendant showed that the condition would inflict psychological harm.

        The defendant's third case, People v. Letterlough, 86 N.Y.2d 259, 631 N.Y.S.2d 105, 655 N.E.2d 146 (1995), also involved a probation condition imposed upon a DWI offender. If he regained driving privileges, the offender was required to affix a fluorescent sign to his license plate, stating "CONVICTED DWI". Id. at 147. The court imposed the condition under a catch-all provision of the New York law authorizing "any other conditions reasonably related to his [or her] rehabilitation." Id. at 148 (quoting New York Penal Laws § 65.10[2][l]). Under the New York statute, rehabilitation "in the sense of that word that distinguishes it from the societal goals of punishment or deterrence" was the "singular focus of the statute." Id. at 149. Because the condition's "true design was not to advance defendant's rehabilitation, but rather to `warn the public' of the threat presented by his presence behind the wheel," id. at 149, the court voided the condition. Id. at 159, 631 N.Y.S.2d 105, 655 N.E.2d 146; see also id. at 149 ("[P]ublic disclosure of a person's crime, and the attendant humiliation and public disgrace, has historically been regarded strictly as a form of punishment." (internal citations omitted)). In contrast to the New York scheme, the district court made plain the rehabilitative purpose of the condition. We also note that in the federal system, unlike the New York system, rehabilitation is not the sole legitimate objective. See 18 U.S.C. §§ 3583(d), 3553(a).

10. Gementera's post-sentencing, pre-surrender conviction for possession of stolen mail confirms the reasonableness of the district court's observation in this respect. For that conviction, Gementera was sentenced to twenty-four months imprisonment.

11. Even if shaming conditions were sometimes rehabilitative, Gementera also urges that the condition would be psychologically damaging in his specific case, given his "lack of coping skills, his substance abuse, and his unresolved personal issues with his father." Better than public expiation, he contended, would be mandatory substance abuse counseling and vocational training. First, we note that the district court did require Gementera to undergo substance abuse counseling and vocational training. Second, the record establishes that the district court fairly considered Gementera's claims that he was somehow particularly vulnerable to the consequences of his crime being publicly exposed. At the hearing, the court asked defense counsel, "is there some feature of his personality that makes him particularly vulnerable that you can substantiate?" The attorney replied, "I can't offer anything but my own personal observations and anecdotal observation based on my almost one-year representation of the defendant and his reaction and his family's reaction to what occurred in court." While not persuaded by the attorney's untutored lay psychological evidence, the district court nonetheless inserted a provision into the condition providing an avenue for Gementera to present more reliable evidence of psychological harm:

        Upon showing by defendant that this condition would likely impose upon defendant psychological harm or effect or result in unwarranted risk of harm to defendant, the public or postal employees, the probation officer may withdraw or modify this condition or apply to the court to withdraw or modify this condition.

        No such substantiation was presented. By the terms of the condition, if there were any such evidence, Gementera faces no bar to his presenting it.

12. Nor did the district court have any evidence to the contrary. By not citing these scholarly articles until this appeal, Gementera failed to provide the district court any opportunity to assess their potential value.

13. The dissent faults our analysis for looking beyond the signboard clause to other provisions of the four-part condition. [Dissent at 612.] Our purpose is not, as the dissent characterizes it, to suggest that an improper condition may be cured merely by setting it alongside proper conditions. Rather, our obligation is to assess whether an individual provision reasonably relates to the purpose of rehabilitation. Where that provision is part of an integrated rehabilitative scheme, we see no bar to looking at other aspects of the scheme in evaluating the purpose and reasonableness of the individual provision at issue. By acting in concert with others, a provision may reasonably relate to rehabilitation, even though the relation existed primarily by virtue of its interaction with complementary provisions in an integrated program. A boot camp, for example, that operates by "breaking participants down" before "building them up again" is not rendered impermissible merely because the first step, standing alone, might be impermissible. Similarly, a program that emphasizes an offenders' separation from the community of law-abiding citizens, in order to generate contrition and an authentic desire to rejoin that community, need not be evaluated without reference to the program's affirmative provisions to reconcile the offender with the community and eventually to reintegrate him into it.

14. We do not pass here on the more difficult case of the district court's original 100-hour condition, which lacked significant reintegrative aspects.

15. We do acknowledge that one purpose of the Sentencing Guidelines was to promote greater uniformity in federal sentencing, and that permitting certain conditions of supervised release, as imposed here, may lead to less regularized sentences. As described above, however, we have previously upheld a diverse array of conditions of supervised release, as contemplated by the statute's authorization of "any other condition [the district court] considers to be appropriate." 18 U.S.C. § 3583(d).

16. In view of this holding, we do not reach the separate issue of whether the condition reasonably relates to the objectives of deterrence and protection of the public.

17. Gementera points to Williams v. State, 234 Ga.App. 37, 505 S.E.2d 816 (1998), in which a defendant convicted of soliciting sodomy was ordered to walk for ten days, between 7 p.m. and 11 p.m. each day, along that portion of the street where the solicitation occurred, holding a large sign stating, "BEWARE HIGH CRIME AREA." The police were to be notified in advance in order to monitor his performance and provide an appropriate level of safety. Id. at 817. While the court commended the trial judge for his "initiative" in developing a "new and creative form of sentencing which might very well have a positive effect on [the defendant] and be beneficial to the public," and explained that shaming punishments are not forbidden, it nonetheless found that the condition exposed the defendant to a constitutionally impermissible danger. Id. at 818.

        The Georgia court relied upon language from DeShaney v. Winnebago County Dep't of Social Servs., 489 U.S. 189, 199-200, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989) (rejecting claim against county social services department for failing to protect child from private violence by his father), in which the Supreme Court held: "[W]hen the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being." Id. at 199-200, 109 S.Ct. 998. The Court explained:

        The rationale for this principle is simple enough: when the State by the affirmative exercise of its power so restrains an individual's liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs — e.g., food, clothing, shelter, medical care, and reasonable safety — it transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause.

        Id. at 200, 109 S.Ct. 998. The condition in Gementera does not expose the defendant to any significant risk of danger. By contrast with Williams, the Gementera signboard is worn during eight hours of daylight during the business day, not at night; in front of a United States Post Office, not a "high crime" neighborhood where criminal solicitation occurs; and the sign's message does not provoke violence by threatening the criminal livelihood of those who illegally trade sex in a red light district, as the Williams sign might. Moreover, the district court in Gementera explicitly included a provision allowing for withdrawal of the condition upon a showing that the condition would impose a safety risk upon the defendant. Gementera made no such showing.

18. Numerous state courts have rejected Eighth Amendment challenges to shaming sanctions. See, e.g., People v. Letterlough, 205 A.D.2d 803, 804, 613 N.Y.S.2d 687 (N.Y.App.Div.1994) ("CONVICTED DWI" sign on license plate); Ballenger v. State, 210 Ga.App. 627, 436 S.E.2d 793 (1993) (fluorescent pink DUI bracelet); Lindsay v. State, 606 So.2d 652, 656-57 (Fla.App.1992) (DUI advertisement in newspaper); Goldschmitt v. State, 490 So.2d 123, 125 (Fla.App.1986) ("Convicted DUI — Restricted License" bumper sticker); cf. People v. McDowell, 59 Cal.App.3d 807, 812-13, 130 Cal.Rptr. 839 (Cal.App.1976) (tap shoes for purse thief who used tennis shoes to approach his victims quietly and flee swiftly). See also Developments in Law: Alternatives to Incarceration, 111 HARV. L. REV.1944, 1953 (1998) ("Eighth Amendment challenges have also failed to overturn shaming conditions, despite arguments that `modern scarlet-letter probation conditions constitute punishment in and of themselves' and that certain shaming conditions impose psychological cruelty while yielding no better results than conventional punishments."); id. at 1953, 130 Cal.Rptr. 839 ("Courts have simply adopted the reasoning that shaming is not cruel or unusual when the alternative is imprisonment."); Dan M. Kahan, What Do Alternative Sanctions Mean?, 63 U. Chi. L.Rev. 591, 646 n. 226 (1996) ("Although the doctrine is exceedingly indeterminate, it seems fairly obvious that shaming penalties are not `cruel and unusual' for purposes of the Eighth Amendment, particularly when the alternative is imprisonment.").

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        HAWKINS, Circuit Judge, dissenting:

        Conditions of supervised release must be reasonably related to and "involve no greater deprivation of liberty than is reasonably necessary" to deter criminal conduct, protect the public, and rehabilitate the offender. See 18 U.S.C. §§ 3553(a)(1)-(2); 3583(d)(2); United States v. Williams, 356 F.3d 1045, 1056 (9th Cir.2004). Clearly, the shaming punishment ¹ at issue in this case was intended to humiliate Gementera. And that is all it will do. Any attempt to classify the goal of the punishment as anything other than humiliation would be disingenuous.² Because humiliation is not one of the three proper goals under the Sentencing Reform Act,³ I

Page 611

would hold that the district court abused its discretion in imposing the condition.

        There is precious little federal authority on sentences that include shaming components, perhaps indicative of a recognition that whatever legal justification may be marshaled in support of sentences involving public humiliation, they simply have no place in the majesty of an Article III courtroom. Some state courts have reviewed such sentences and the results have been mixed.

        People v. Hackler, 13 Cal.App.4th 1049, 16 Cal.Rptr.2d 681, 686-87 (1993), involved a condition that required a shoplifting offender to wear a court-provided t-shirt whenever he left the house that read: "My record plus two six-packs equals four years" on the front and "I am on felony probation for theft" on the back. Applying a state sentencing regime similar to the federal guidelines — authorizing the imposition of reasonable conditions of probation to foster rehabilitation and to protect public safety — the court struck down the condition. Id. at 686, 13 Cal.App.4th 1049. The court held that the relationship between the required conduct (wearing the t-shirt) and the defendant's crime (stealing beer) was so incidental that it was not reasonable and that the true intent behind the condition was to expose Hackler to "public ridicule and humiliation" and not "to foster rehabilitation." Id. at 686-87, 13 Cal.App.4th 1049.

        As in Hackler's case, the purpose behind the sandwich board condition was not to rehabilitate Gementera, but rather to turn him into a modern day Hester Prynne.⁴ This sort of condition is simply improper under the Sentencing Reform Act. See also Springer v. United States, 148 F.2d 411, 415-16(9th Cir.1945) (invalidating a condition that a convicted draft dodger donate a pint of blood to the Red Cross).

        Ballenger v. State, 210 Ga.App. 627, 436 S.E.2d 793 (1993), approved a condition that a convicted drunk driver wear a fluorescent pink identification bracelet identifying him as such. By my lights, the dissent in Ballenger is far more persuasive. Concluding that the purpose of the condition was clearly to humiliate, Judge Blackburn argued that "a rationale of rehabilitation may not be used to vest ... authority[to prescribe this type of punishment] in the judiciary." Id. at 795-96 (Blackburn, J. dissenting).

        Just as in Hackler and Ballenger, the true intention in this case was to humiliate Gementera, not to rehabilitate him or to deter him from future wrongdoing. When the district court initially imposed the sandwich board condition, the judge explained that Gementera should have to suffer the "humiliation of having to stand and be labeled in front of people coming and going from a post office as somebody who has stolen the mail." Subsequently, Gementera filed a motion to correct the sentence by having the sandwich board condition removed. He urged that humiliation was not a legitimate objective of punishment or release conditions. Only at the hearing on Gementera's motion did the district court change its characterization of the shaming punishment, remarking that the punishment was one of deterrence and rehabilitation and not merely humiliation.

        Although the majority opinion initially seems to accept the district court's retroactive justification for the punishment, it later as much as concedes that the sandwich board condition amounted to a shaming punishment. Admitting that the condition was "crude" and "could entail risk of social withdrawal and stigmatization," the

Page 612

majority nonetheless finds the condition acceptable because it was "coupled with more socially useful provisions." [Op. at 606] Put another way, the majority says that it is not considering "a stand-alone condition intended soley to humiliate, but rather a comprehensive set of conditions." [Op. at 606] But the majority cites to no provision in the Sentencing Reform Act and to no case law indicating that conditions on supervised release should be reviewed as a set and not individually, or that humiliation somehow ceases to be humiliation when combined with other punishment. Cf. United States v. Eyler, 67 F.3d 1386, 1393-94 (9th Cir.1995) ("Any discretionary condition must meet each of the three broad conditions set forth in [the Sentencing Reform Act]." (emphasis added)). The majority's position seems to be that even if one condition of a sentence manifestly violates the Sentencing Act, it can be cured by coupling the provision with other, proper ones. When such a novel proposition is put forward and no case law is cited to support it, there is usually a reason. At the end of the day, we are charged with evaluating a condition whose primary purpose is to humiliate, and that condition should simply not be upheld.

        Although I believe that the sandwich board condition violates the Sentencing Reform Act and we should reverse the district court for that reason, I also believe that this is simply bad policy. A fair measure of a civilized society is how its institutions behave in the space between what it may have the power to do and what it should do. The shaming component of the sentence in this case fails that test. "When one shames another person, the goal is to degrade the object of shame, to place him lower in the chain of being, to dehumanize him."⁵

        To affirm the imposition of such punishments recalls a time in our history when pillories and stocks were the order of the day. To sanction such use of power runs the very great risk that by doing so we instill "a sense of disrespect for the criminal justice system" itself. Ballenger, 436 S.E.2d at 796 (Blackburn, J. dissenting).

        I would vacate the sentence and remand for re-sentencing, instructing the district court that public humiliation or shaming has no proper place in our system of justice.

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Notes:

1. One scholar has defined a "shaming" punishment as "marked by two features: first, there is an attempt to debase, degrade, or humiliate the offender; and second, the degradation occurs before the public eye, often but not always with the aid of the public." Dan Markel, Are Shaming Punshments Beautifully Retributive? Retributivism and the Implications for the Alternative Sanctions Debate, 54 Vand. L.Rev. 2157, 2178 (Nov.2001). This condition — requiring Gementera to wear a sandwich board outside a public post office declaring his crime — clearly qualifies as a "shaming" punishment.

2. The district judge was forthright in his statement regarding why he imposed the condition: "[Gementera] needs to understand the disapproval that society has for this kind of conduct, and that's the idea behind the humiliation."

3. The three goals are deterrence, rehabilitation, and protection of the public. 18 U.S.C. §§ 3553(a)(2).

4. See Hawthorne, The Scarlet Letter; Hackler, 16 Cal.Rptr.2d at 686.

5. Markel, supra note 1 at 2179.

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