The “scarlet Letter” Redux: Neo - Puritanism And The Reemergence Of Shame Penalties
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The “scarlet Letter” Redux: Neo  -  puritanism And the Reemergence Of Shame Penalties

“Prisons are built with stones of Law.

Brothels with the bricks of religion.”

— William Blake [FN 1]

“But Hester Prynne, with a mind of native courage and activity, and for so long a period not merely estranged, but outlawed, from society, had habituated herself to such latitude of speculation as was altogether foreign to the clergyman. She had wandered, without rule or guidance, in a moral wilderness.. . . The scarlet letter was her passport into regions where other women dared not tread. Shame, Despair, Solitude! These had been her teachers,—stern and wild ones,—and they had made her strong, but taught her much amiss.

— The Scarlet Letter [FN 2]

Introduction

The Scarlet Letter by Nathaniel Hawthorne remains central to the American canon, and is required reading in high schools and colleges student across the nation. [FN 3] The Scarlet Letter is a snapshot of early American Puritan discomfiture with the issues of love and sex outside the context of marriage. [FN 4] The protagonist, Hester Prynn, has committed adultery and is forced to wear a scarlet “A” as a constant reminder to her, and a caution to others, of her crime and sinful nature. [FN 5] While Hester’s is a fictional account, the punishment is historically genuine. [FN 6]

Modern readers view this penalty as a historical curiosity and no longer fear the possibility of public shame as punishment. [FN 7] However, not only does this institution continue today, but computers, televisions, and telephones have made it possible for the local community to examine one’s “sexual moral wrongs.” [FN 8] Shame as punishment exists not only in strict, conservative Judeo-Christian communities, but even many liberal jurisdictions have adopted these tactics, making the New Scarlet Letter more pervasive than ever before. [FN 9]

We are telling everybody in Chicago who sets foot in Chicago, if you solicit a prostitute you will be arrested, and when you're arrested, people will know"

— Mayor Daley[FN 10]

What is the New Scarlet Letter?

Hester Prynn’s Scarlet letter was considered a lenient punishment for adultery. [FN 11] Harsher penalties included being “tarred and feathered” (literally, hot tar painted on the body with feathers sprinkled over the tar to replicate the appearance of a chicken[FN 12]), being “pilloried” (a pillory is a “wooden framework with holes through which an offender's head and hands are placed” [FN 13]), or installed in the “stocks” (a device “made of two wood timbers attached together, locking the legs or arms of the criminal”[FN 14]). In that era, compulsory public confessions and apologies were not uncommon sanctions [FN 15] with the nature of the crimes posted above the offender. Some offenders were whipped in public. [FN 16] Such punishments harken back to the Biblical era, when Jesus of Nazareth was publicly humiliated before his execution by a public flogging and posting of a sarcastic sign on his cross proclaiming him “The King of the Jews” to notify passers-by of the nature of his crime against society. [FN 17] Such public punishments have always invited people to mock and torment criminals publicly displayed, and the people often did so with great relish. [FN 18]

These punishments are now considered “cruel and unusual,” and it would be considered shocking to the American public if they discovered that any of these punishments had returned. [FN 19] But one indeed has — technologically refined to maximize the shame.

Jurisdictions across the United States retain laws founded upon traditional moral arguments criminalizing specific sexual acts. [FN 20] These laws include fines and imprisonment for prostitution, [FN 21] sex between consenting high school age people, [FN 22] sex with multiple partners, [FN 23] sex outside of marriage, [FN 24] sadomasochistic sex, [FN 25] use of devices, sex in adult theaters[FN 26] and sex shops [FN 27], and other non-traditional sexual encounters. [FN 28] Only recently has the Supreme Court of the United States recognized a right to privacy in the bedroom for non-procreative sexual behavior. [FN 29]

Many of these criminalized and ridiculed behaviors are allowed, but veiled for secrecey. Pornography shops, [FN 30] “escort services”, [FN 31 ] adult toy stores, [ FN 32 ] pornographic theaters, [ FN 33 ] and websites are the scenes of many of these veiled behavoirs. [ FN 34 ] The public countenances these outlets where they believe adult private citizens should be allowed to view or employ these materials, and where creation or enforcement of bans would be difficult or impossible to enforce. [ FN 35 ]

However, legislators are creating new laws and law enforcement has found new ways to enforce them by using an old tactic — public shame. [ FN 36 ] Shaming generally consists of exposing the offender to some degree of public humiliation and scorn.[FN 37 ]

With epidemic prison overcrowding, and probation costs rising, humiliation as punishment has become a cheaper alternative, and many believe it more effective. [ FN 38 ]

American cities have begun employing technology to place a “Scarlet Letter” on those accused of committing, attempting to commit, or soliciting one of these banned sexual acts. [ FN 39 ] These ideas are generally not being promoted by law enforcement. A member of the Chicago Police Vice Squad stated, “We didn’t even get a letter, fax, or call, we found out about this program by watching the news.” [ FN 40 ] Chicago’s program is a website featuring randomly selected photographs of individuals accused of soliciting prostitutes. [ FN 41 ]

Kansas City [ FN 42 ], Oklahoma City [ FN 43 ], Denver [ FN 44 ], and several other cities have created television programs that run on publicly funded television channels showing the photographs, names, and home addresses of those arrested for sex offenses. [ FN 45 ] A small town in Texas supplies its male prisoners with embarrassing pink uniforms. A Florida legislator proposed a law to compel any woman inclined to place her child for adoption to publish a notice of all people she has had sex with in the newspaper of her residential jurisdiction, and newspapers of the residential jurisdictions of all her named partners. [ FN 46 ] And finally, a national cable news outlet, MSNBC, has achieved huge ratings success by luring “johns” to a home, ostensibly to meet a young girl or boy for sex, only to be greeted by a camera, probing questions, and culminating in a final, televised, arrest. [ FN 47 ]

These cities and other jurisdictions hardly dispute that humiliation is their goal as a crime-fighting tactic. Chicago’s Mayor Daley said to the Chicago Tribune that this is indeed their policy. “Your mug shot, name and address could be posted for the entire world to see if you solicit a prostitute in Chicago and get caught. You could find yourself posted on the Chicago Police Department Web site.” [ FN 48 ] Publicly embarrassing “johns” is the city’s latest strategy in fighting prostitution. With over 180,000 hits a day on their website, the public is looking. [ FN 49 ]

The layman's constitutional view is that what he likes is constitutional, and that which he doesn't like is unconstitutional.

— Hugo Black [ FN 50 ]

A. Why do these laws center around sexual acts, and how can they be found unconstitutional?

Virtually all shame penalties focus on sexual acts. [ FN 51 ] A few are used on petty thievery and as creative punishments for repeat offenders, but most center around lewd public acts[ FN 51 ], prostitution[ FN 52 ], and child molestation. [ FN 53 ] Puzzlingly, the promoters of shame penalties tend not to promote them for violent criminals, though such crimes by definition cause greater public harm. [ FN 54 ] Ultimately, one must understand the Puritanical origins behind shaming penalties to strike them down for their inequity.

Shaming penalties appear to violate several amendments to the constitution. By applying a shame penalty before the accused may seek counsel or is adjudicated guilty, the punishment appears to violate the Due Process clause of both the Fifth and Fourteenth Amendments to the Constitution. Substantive Due Process rights may also be impugned. Further, because shame penalties are uncommon, [ FN 55 ] they may violate the “cruel and unusual punishment” clause within the 8th Amendment to the Constitution.

Ann Landers said that you are addicted to sex if you have sex more than three times a day, and that you should seek professional help. I have news for Ann Landers: The only way I am going to get sex

three times a day is if I seek professional help.

— Jay Leno [FN 56 ]

The origins of sex-focused public shaming laws.

The American government continues to be uncomfortable with sex. [ FN 57 ] Congress empanelled a special committee over Janet Jackson’s famous Superbowl “wardrobe malfunction.” [ FN 58 ] In the midst of a “War on Terror” against shifting, shadowy enemies, the occupation of two foreign countries, and other significant foreign and domestic issues,[ FN 59 ] Congress expended more effort on shielding its citizens from unanticipated blurry nipples than they spent debating the most recent six military conflicts. [ FN 60 ]

Likewise, during the Vietnam era, in the midst of major debates on abortion and the powers of the presidency, some Supreme Court justices sat down in front of a large projection screen with popcorn popped by their clerks and watched pornography to determine if the movies were too “obscene” for American adult movie consumers. [ FN 61 ] The Court found “no right to homosexual sodomy” in the 1980s, only to overturn that decision three years ago. [ FN 62 ] Elsewhere in the industrialized world, gay marriage existed and Americans could view sodomy on the internet at any time. [ FN 63 ] It has been said that “In America sex is a fascination, for the rest of the world, it is a fact.” [ FN 64 ] The Scarlet Letter demonstrates how this contempt for sex outside of marriage derives from a Puritanical view of Christianity.

“I feel that nothing so casts down the manly mind from its height as the fondling of women and those bodily contacts which belong to the married state.”

— Saint Augustine [ FN 66 ]

“Punishment is justice for the unjust.”

— Saint Augustine [ FN 67 ]

One man’s sex problems become a nation’s problem with sex?

Shame punishments were promoted by one of the founders of modern Christianity: St. Augustine of Hippo. As there are several sects of Christianity, each has its own specific beliefs derived from its teachers, doctors and ideologues. [ FN 68 ] St. Augustine, on his journey into Christianity, believed he was impure due to sexual acts he had engaged in with men and women in bath houses and the sexual desires that plagued his mind for the rest of his life as a bishop. [ FN 69 ] In his famous compilation of letters, Confessions, he mentioned the single thing that kept him from being close to God was his sexual desires. [ FN 70 ]

These teachings greatly informed Puritanism and in turn, Puritanism greatly impacted the evolution of law in America. [ FN 71 ] The Puritans viewed adultery and fornication among the most egregious offenses by imbuing the belief that those who committed such crimes must be exposed in order to be cleansed of their sins. [ FN 72 ]

It is always possible for the court to overreach its proper bounds and perhaps declare a lot of laws unconstitutional and frustrate the will of the majority in a way that it ought not to be frustrated.

— Chief Justice William Rehnquist [ FN 73 ]

1. The majority of shame penalties apply to sex crimes

Virtually all shame punishments relate to crimes involving sex. [ FN 74 ] One of the most notorious is the federal sex offender’s registration that exists in every state, commonly under the name of “Megan’s act.” [ FN 75 ] These laws, on their face, may violate the “double jeopardy” clause in the Fifth Amendment [ FN 76 ] , however, the supreme court has felt that this is not a double punishment, but is a way to protect the public from a reoccurrence of these sex crimes. [ FN 77 ]

One of the major problems with this philosophy is that the sex offenders list is to protect society from the highly recidivist crimes that exist in sex crime statutes, but only a few of the crimes people have to register for have a high recidivism rate. [ FN 78 ] Crimes such as consensual sex between an 18 year old and a 16 year old[ FN 79 ] , or urinitating in a park[ FN 80 ] , or “mooning someone”, exposing your butt to them, will land a person on the sex offender list for “protection of the public.” [ FN 81 ]

Creating this sex offenders list for the public allows anyone with a phone or computer to see the sex crimes of people in their jurisdiction, and know the location of where they live, so they can possibly ridicule them. [ FN 82] There are many known instances where people have used the sex offender list to place postings on people’s doors or graffiti on their houses to harass them for their previous crime. [ FN 83 ] The sex offenders list, though possibly helpful for parents, is nothing more than a higher technological Scarlet letter that follows someone forever. Hester Prynn could take her Scarlet letter off at night, but a person who had sex at the age of sixteen with an eighteen year old will wear theirs forever. [ FN 84 ]

The main problem with these Scarlet letter laws is the vast majority of sex crimes are victimless. With a heavy punishment occurring on victimless crimes, why is there not heavier Scarlet letter laws for crimes involving victims?

Only a few judges have forced drunk drivers to place a warning on their car stating that they have been intoxicated while driving. [ FN 85 ] Studies have shown that those who get citations for driving while drunk or had accidents involving intoxication are highly likely to drink and drive again which could cause vehicular homicide. [ FN 86 ] The same can be said for many other crimes like assault[ FN 87 ] , child abuse[ FN 88 ] , spousal abuse[ FN 89 ] , and other crimes with victims that have no database.

It is our puritan based society that puts a Scarlet letter on victimless sex criminals, but keeps other violent criminal protected from major exposure. [ FN 90 ] This is unfair to the criminals who have committed some of these crimes, and unfair to society because it places a magnifying glass on the private lives of criminals, claiming to be protecting society. At the same time the government is failing to protect people from criminals that commit crimes that can harm them, by allowing these criminals to remain hidden unless someone does a deep search into the criminal record of a person. [ FN 91 ] It would seem more dangerous to have a person who has committed multiple intoxicated driving offenses through a child’s neighborhood, than an adult who 10 years previously had solicited a prostitute in Las Vegas.

The Process used by Kansas City and Chicago for “Johns TV.”

''It's analogous to the old days when people were put in stocks in the public square to shame them," said Michael Linz, legal counsel for the American Civil Liberties Union of Texas, where in Dallas, police post pictures of people charged with solicitation, as well as indecent exposure and public lewdness. ''Is there any legitimate police service in the public interest with this? I would suggest not. And since when is public shame a police or public concern? And who visits these websites anyway?" [ FN 92 ]

Before one can fully criticize the use of shaming in “Johns TV”, they must understand the process. A suspect is arrested for soliciting a prostitute. This arrest may result from an undercover cop posing as a prostitute, [ FN 93 ] a sting operation involving a real prostitute, [ FN 94 ] or a beat cop witnessing what appears to be behavior involving solicitation. [ FN 95] The suspect is then arrested, read his or her Miranda rights and taken down to the police station. [ FN 96 ] At this point normal booking procedures begin, but something else is added. A mug shot is taken and then in the case of Chicago’s program, suspects are randomly picked for posting on the internet with their arrest record. [ FN 97] From viewing the site only one white person is seen on there The police have no control over who is posted on the net; it is randomly selected by a division of the mayors office. [ FN 98 ]

In Kansas City every “john” was placed on television with a notation of what they were accused of.[ FN 99 ] There is a small notation at the bottom of the screen stating that all suspects are innocent until proven guilty for both programs, but again this item is not very visible. [ FN 100 ] At this point the suspect is placed in jail and waits for his or her attorney to arrive, for the possibility of removing these charges, and ridding them of the shame they face from them. At this point the suspect has seen no neutral magistrate, no judge, no attorney to protect his or her rights, just the police officers who accuse them, and a cold cell. [ FN 101 ]

Punishment is the last and the least effective instrument in the hands of the legislator for the prevention of crime.

— English art critic John Ruskin (1819-1900) [ FN 102 ]

1. Are these programs effective?

As these programs run, general agreement comes about that they do not work. [ FN 103 ] With prostitution being the oldest profession in the world, [ FN 104] there will always be prostitutes, and there will always be “johns”. [ FN 105 ]

An officer in the vice squad at the Chicago police department noted that the information taken on the suspects is usually inaccurate, and those who do give accurate information often do not care if their picture is posted. [ FN 106 ] This same officer reported that many officers have picked up the same “johns” over and over while the program has been in place and it appears to have had no effect on prostitution from a beat cop point of view. [ FN 107 ] A common question amongst the officers is that if they do this against the prostitutes and “johns”, why are people not warned about dangerous offenders? As one officer said, “we want to fight crime, not put scarlet letters on people who could care less about what people think of them.” [ FN 108 ] He continued to note, “this is simply a political move to show that they are fighting crime, and not an actual attempt to fight crime.”

Kansas City abandoned its program. It worked at first but at the end the numbers were higher then when they started. [ FN 109 ] When speaking to a sergeant with the Kansas city police department he noted that he barely remembered the program, and notes that no cop wants it back. He felt that taking the prostitutes off the street and providing them help would be the most effective way to handle this problem, and shaming someone who could not care less does nothing but waste time and money. [ FN 110 ]

As for the offenders, when attempting to contact them on the phone, many mixed messages occurred. Seventeen came up as recently disconnected phone numbers. [ FN 111 ] Eight of them appeared to be screening their calls, while 10 stated they did not live at the number dialed. [ FN 112 ] Five people who answered and heard the word website uttered several profanities and then disconnected. It seems like the shame exists, but instead of not going to prostitutes, people just lie about where they live, or change numbers. [ FN 113 ]

The Fourteenth Amendment, in declaring that no State

“shall deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws,” undoubtedly intended . . . that equal protection and security should be given to all [and] they should have like access to the courts of the country for the protection of their persons and property, the prevention and redress of wrongs, and the enforcement of contracts....

— U.S. Supreme Court Justice Steven Field [ FN 114 ]

The “Scarlet letter Laws” violate the Due Process Clauses in the Fifth and Fourteenth amendments to the Constitution and attempts to circumvent the Sixth Amendment to the Constitution by not having a trial.

When the Bill of Rights was written, the Fifth Amendment was created to protect the citizens of the United States from receiving sentencing or punishment without a fair trial or some form of “Due Process.” [ FN 115 ] The Founding fathers had stuck in their minds the recent times in which the king could do no harm and could prosecute anyone, for any crime, or punish anyone for any crime without an opportunity of fair process or even an opportunity to be heard. [ FN 116 ]

The “Due Process” clause of the Fifth Amendment says, “no person shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law….”[ FN 117 ] This guaranteed all Americans that they would not receive punishment unless they had received some sort of process involving a court. [ FN 118 ]

The Sixth Amendment to the Constitution states,

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.” [ FN 121 ]

With the shame and humiliation punishment already being received, the process described in the 6th amendment never occurs, nor does the suspect have time to even gain counsel to possibly stop the process of receiving this punishment. At booking the phone call comes after fingerprinting and photographing. [ FN 122 ] By the time an attorney could arrive to wake a judge or file a motion, the picture is on the website and the damage is done. [ FN 123 ]

The Supreme Court has stated that counsel should be allowed at the beginning of the adversarial process [ FN 124 ], however this does not mean the police have to wait for the standard booking procedures. The Supreme Court many times has stated that punishment cannot occur before sentencing. [ FN 125 ] All of these seem to be violated when punishment is handed down at the click of a photo and click of a mouse.

The Fourteenth Amendment to the constitution seems to be the area most violated by “Johns TV” The Fourteenth Amendment states,

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. [ FN 126 ]

The programs appear to violate the right to due process, included with the Fifth Amendment for a right to a trial and jury, and the substantive due process clause within the Fourteenth Amendment to the constitution. The substantive due process reflects the fundamental rights of Americans to liberty and property. [ FN 127 ] Inherent within these fundamental rights is one’s right to be left alone and protected against wanton government intrusion like the right of due care while subject to government custody or protection. [ FN 128 ] Again, this reinforces that there should be a trial and process before punishment.

One is absolutely sickened, not by the crimes that the wicked have committed, but by the punishments that the good have inflicted; and a community is infinitely more brutalized by the habitual employment of punishment than it is by the occasional occurrence of crime.

— Irish poet and dramatist Oscar Wilde (1854-1900) [ FN 129 ] .

Can Substantive due process protect a person from “Johns TV”?

The Substantive due process clause in the Fourteenth Amendment has been interpreted to mean that Americans have a fundamental right to privacy. [ FN 130 ] This area formed out of several cases including Griswold v. Connecticut[ FN 131 ] , Roe v. wade, [FN 132] and Lawrence v. Texas. [FN 133] But the Court refused to constitutionalize slander in Paul v. Davis where the court held that harm to ones reputation is not a fundamental liberty interest. [FN 134 ]

For consensual sex crimes, this seems to be at odds with current rulings. In Lawrence v. Texas the Court came to the conclusion that the government had no business how consenting adults, of legal age, had sex with each other. [FN 135] The Court noted that the appellants conviction would have the effect of by having them placed on the sexual offender registry in certain states. [FN 136 ] This means that the humiliation of having to come before the court and having the public viewing what occurs in two consenting adults private bedroom, and that by making a conviction of these acts receives a punishment of being placed on a sex offenders list, restricting how people can live their life, appears to be unconstitutional. [FN 137]

Certain fundamental rights and liberties the Supreme Court has found exist for every citizen of the United States. [FN 138 ] The Fifth and Fourteenh amendments protect substantive liberties of citizens.[FN 139] The Ninth amendment to the constitution protects those liberties that are not spelled out in the Constitution and justices of the Supreme Court have not even found protections in the penumbras of other amendments of the Constitution.[FN 140] The Federal government and state government cannot create laws that abridge these freedoms, so if the Scarlet letter laws violate these freedoms, they should be declared unconstitutional.[FN 141]

We have nothing to guide us in defining what is cruel and unusual apart from our own consciences. A punishment which is considered fair today may be considered cruel tomorrow. And so we are not dealing with a set of absolutes. Our decision must necessarily spring from the mosaic of our beliefs, our backgrounds and the degree of our faith in the dignity of the human personality.

— Justice Frank Murphy, draft of an unpublished dissent (1946) [FN 142 ]

The Use of Public humiliation as punishment Violates the “Cruel and Unusual Punishment Clause” in the 8th Amendment

The famous writer Tom Clancy said this of cruel and unusual punishment, “Back in pre-Revolutionary America ‘cruel and unusual punishment’ meant the rack and burning at the stake...in more recent rulings it has been taken to mean the absence of cable television and denial of sex-change operations, or just overcrowding in the prisons.” [FN 143] In this opinion he is only partially right. The Founders remember the days of public torture, death in public view with humiliation of ones last seconds being taken with mockery. [FN 144] Also the prisons today are not just stone floors and walls with rats and bars, but do have a certain amount of humanity. [FN 145] What Clancy does not mention, however is that society disapproves of awful prisons and the fact the founders did not foresee a future where one could go as far as to humiliate and punish someone for the entire world to see.

Thomas Jefferson recommended that there be a constitutional convention every twenty years to keep up with the changes in society. [FN 146 ] He foresaw that there would be differences in the future and that society needed to change its contract with the government in order to protect the people. [FN 147] The famous political commentator Bill Maher commented on the concept of bringing the founders back from the past and into today, and that they would most likely comment on the Constitution, “Oh you’re still using that old thing.” He continues by discussing the Second Amendment by saying the framers’ the right to bear arms meant having a musket which fired one shot, no standing army existed, and your musket was equal to any member of the government’s musket. [FN 148 ]

Maher continued to note that the framers did not foresee nuclear weapons and machine guns and would probably think it to be ridiculous for citizens to be able to have these items. He said as for today’s society, “If Janet Reno wants through my door, Janet Reno is coming through my door.” [FN 149 ] He was referring to the famous incident where the Attorney General Janet Reno sent police into a parent’s house, machine guns drawn, to capture a child who was an illegal alien. [FN 150] Likewise, for the Eighth Amendment, it is clear the evolving standards of technology should not hold back the reasonableness of society, and to keep a focus on the intent of the farmers.

The Eighth Amendment of the Constitution states that “Excessive Bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.” [FN 151] There are two sets of analysis the Supreme Court has taken in viewing whether a punishment is cruel and unusual. [FN 152 ] The first asks whether the punishment was acceptable by society at the time the Constitution was written. [FN 153] This is a very originalist and textual view that takes the constitution as a written contract that never changes, no matter what and is generally the philosophy followed by Justice Antonin Scalia, Justice Clarence Thomas, and the late Chief justice William Rehnquist. [FN 154] The second is a four part test taken from Furhman v. Georgia. [FN 155 ] Justice Brennan wrote that the four principles that make a punishment cruel and unusual are (1) a punishment must not be degrading to human dignity, (2) a severe punishment that is obviously inflicted in wholly arbitrary fashion, (3) severe punishment that is clearly and totally rejected throughout society, (4) a severe punishment that is patently unnecessary. This second view looks at the Constitution as a living and evolving document and takes the view that the standards as set forth by the Constitution should remain, but have to change with society. [ FN 156 ] Through analysis of these two standards one can clearly see that the use of public humiliation as a form of punishment violates the Constitution.

Any punishment that does not correct, that can merely rouse rebellion

in whoever has to endure it, is a piece of gratuitous infamy which makes

those who impose it more guilty in the eyes of humanity, good sense and reason,

nay a hundred times more guilty than the victim on whom the punishment is inflicted.

— Marquis De Sade [FN 157]

1. Cruel and unusual punishment standards during the time of the Constitution was written.

At the time the Bill of Rights was ratified, public humiliation was an acceptable form of punishment for several of the states. [FN 158 ] Forced public apologies, [FN 159 ] flogging, [FN 160 ] time in the stockade [FN 161 ] and other public shaming incidents were applauded by the citizens and politicians of that era. [FN 162] One would be very hard pressed to make a historical argument against the judges who force convicts that wear signs saying “ I stole mail from this post office” [FN 163] or the probation officers who have their guys wear pink bracelets. [FN 164]

However, it is impotant to note what was not being done at the time of the Bill of Rights in terms of public shame. While the laws required people to stand in one location, or to go outside of the court house and tell people the crime they had committed, [FN 165] each one had a time period and once they were finished they did not have to continue in their shame. [FN 166 ]

No one was forced to publish any sort of apology or make a certain permanent gesture that would always leave their mark on society. With the publication of photographs on the internet, anyone in the world can republish these photographs, and view them for eternity. [FN 167] The fear of a man in colonial America would be that he might run into someone who had witnessed his punishment, meaning someone who was there on that day and hour in which he was forced to confess his crime. The modern day man, who receives his punishment by the Polaroid of a cop, has to fear that his picture may lay around forever on the web, possibly even past death. The closest thing to this long of a punishment was a branding of the letter of the crime one had committed, but this had fallen out of use by the time the Bill of Rights was ratified. [FN 168]

Robert F. Kennedy used to say, “Some men see things as they are and ask why.

Others dream things that never were and ask why not?”; that outlook has become

a far too common and destructive approach to interpreting the law"

— Antonin Scalia [FN 169]

2. The evolving standards analysis.

The more liberal analysis of the Eighth Amendment contends that it, like the rest of the Constitution, is a living body and evolves with societal standards. [FN 170 ] The foundation for this thinking involving the Eighth amendment was laid out in the Supreme Court case of Trupe v. Dulles. [FN 171]

Trop v. Dulles involved a soldier had left the army without leave and a statute stated that any soldier who did so would lose American citizenship. [FN 172] The court struck down this punishment and Chief Justice Earl Warren stated that, “denationalization as a punishment is barred by the Eighth Amendment" as this is "the total destruction of the individual's status in organized society". [FN 173] The court instructed that suspicion of an Eighth Amendment violation rises when the punishment is “any technique outside the bounds of these traditional penalties” when comparing the crime to the punishment “within civilized standards.” [FN 174] The court finally stated, in words often quoted, that “the court must draw its meaning from the evolving standards of decency that mark the progress of a maturing society”. [FN 175]

To determine what societal standards are the court has looked at several factors in American society. [FN 176] Objective evidence includes polling, [FN 177 ] actual use of a punishment, [FN 178] legislative pronouncements, [FN 179] international practice, [FN 180] and sentencing decisions of juries. [FN 181 ]

Time has shown that society has changed in how it uses punishment. [FN 182] Beginning with colonial America, capital punishment of hanging in the public square, [FN 183] tar and feathering, [FN 184 ] and other forms of public capital punishment were in full use, but all of these died off very quickly. [FN 185 ] Lynching though, lasted all the way up until the mid-twentieth century, but most of those cases were public mobs that had run amuck on a racial minority. [FN 186]

Very few of these punishments have been outlawed by legislatures. [FN 187] One can note though, that many dead laws, [FN 188 ] including the law that allows sterilization of the mentally handicapped in some states, [FN 189 ] are still on the books, but society refuses to enforce them and is to lazy to strike them. [FN 190 ]

Prisons during colonial times were cold and desolate places where many would die from exposure or illness related to the poor conditions and flogging could also occur in public or in front of prisoners. [FN 191] Prison reform over time has given prisoners medical care and better facilities to protect them from the elements and avoid turning a prison sentence into a death sentence. [FN 192]

As society began to move forward and rid itself of many of its heinous punishments, the question of the constitutionality ofpunishment by death arrived at the Court. [FN 193] Furhman v. Georgia noticed the discrepancy that was occurring between minorities being executed and called into question the use of the death penalty. [FN 194]

Religion is an insult to human dignity.

With or without it, you'd have good people doing good things and evil people doing bad things, but for good people to do bad things, it takes religion.”

— Steven Weinberg [FN 199 ]

1. Is the use of public humiliation degrading to human dignity?

Chief Justice Earl Warren stated, “The basic concept underlying the Eight Amendment is nothing less than the dignity of man. [FN 200] The dignity of a man is taken when he is forced to be punished and humiliated by his fellow citizens. [FN 201 ] It was quoted once in colonial times that, “The sting of the lash and the contortions of the stocks were surely no balm, but even worse for community members were the piercing stares of the neighbors who witnessed their disgrace and with whom they would continue to live and work.” [FN 202] Human dignity is hard to define, but public humiliation or someone’s lack of control of their destiny draws up the terms dignity. [ FN 203 ] For the people whose pictures were posted, many had disconnected their phone numbers, hiding themselves from public scrutiny in shame. This shows a piece of their dignity has been taken because they have to shut themselves off from society. [ FN 204 ]

The statutes in Oregon, called “Death with Dignity”, refer to the ability for someone not to let themselves medically reach the point of embarrassment. [FN 205 ] If this standard covers much of America, then to force someone in to humiliation surely harms their dignity.

Prisons don't rehabilitate, they don't punish,

they don't protect, so what the hell do they do?

— Jerry Brown [FN 206 ]

3. Is the punishment wholly arbitrary?

The punishment in Chicago’s program is completely arbitrary. [ FN 207 ] No system is used to select people for the website. A small group in the mayor’s office randomly selects the photos. [ FN 208 ] When asked if the forty pictures on the site represented all the arrests for “johns” in the past thirty days, an officer sited that he knew of at least 100 off the top of his head. He stated, “We have no control over who they place on their and it seems completely arbitrary”. He said they had offered to list repeat offenders but the mayor’s office preferred the randomness. [ FN 209 ]

Fuhrman v. Georgia focused mostly on the randomness of the how the death penalty was used. [ FN 210 ] The Chicago system is a device for punishment at random. [ FN 211 ] Almost all arrest records are public but require the action of an individual to gain access to them. On the Chicago website, the government actively goes out of it’s way to display arrest records to harm individuals. The arbitrariness of it makes it wholly unconstitutional. [ FN 212 ]

All in all, punishment hardens and renders people more insensible;

it concentrates; it increases the feeling of estrangement;

it strengthens the power of resistance.

— Friedrich Nietzsche (1844-1900). [FN 213]

4. Is this punishment rejected by society?

This question is a hard one to answer because it depends on what the public deems as entertainment. Many people enjoy the current MSNBC show “To catch a predator” where they catch people attempting to commit sex crimes and arrest them on tape. [FN 214 ] The hit show “cops” [FN 215 ] shows people being chased down and arrested all the time, and the actual websites of these “Johns TV” programs get hundreds of thousands of hits a day. [FN 216 ]

The Supreme Court has previously struck down punishments as cruel and unusual where public polling showed support for the punishment, and the court disagreed. [FN 217] A justice noted, “if the true facts of this punishment were displayed to people, then they probably would not support it.” So if people thought of the websites as being public shaming and realized this was similar to the stockades of centuries past, they might not be so supportive of these laws. [FN 218 ]

“Retaliation is related to nature and instinct, not to law.

Law, by definition, cannot obey the same rules as nature.”

— Albert Camus (1913-1960) [FN 219 ]

5. Is this punishment patently necessary?

The answer to this question seems to be a resounding no. Many jurisdictions have implemented this program, but several are removing it. [FN 220] There are many different punishments that could be used against “johns” including stiffer fines or jail time. Kansas City removed its “Johns TV” because at first it seemed effective but then the arrest numbers rose back to where they were while the show was running. [FN 221]

A penalty offends the proscription against cruel and unusual punishment

when it is so disproportionate to the crime for which it is inflicted

that it shocks the conscience and offends fundamental notions of human dignity.

— (In re Lynch (1972) [FN 222 ]

What does the Supreme court consider currently to be cruel and unusual?

Very few forms of punishment have been declared cruel and unusual. [FN 223] In Wilkerson v. Utah [FN 224] (1878), (pertaining to methods of capital punishment), the Supreme Court commented that drawing and quartering, [FN 225 ] public dissecting, [FN 226] burning alive, [FN 227 ] and disemboweling would constitute cruel and unusual punishment while determining that death by firing squad was as legitimate as the common method of that time. [FN 228] The process of drawing a quartering is where one has all of his limbs and head removed and then placed in city squares as a warning to others about the crimes committed. [ FN 229 ] Though the main part of this is torture, the punishment continues after death by lack of a burial and the mockery of one’s body parts as a reminder of the mistake he made. Disemboweling is to cut someone’s abdomen open while hanging to allow their organs to fall to the ground. [ FN 230 ] All of these again have a public humiliation feature to them, by allowing watchers to see the final end of a person’s life.

The Supreme Court has ruled the loss of one’s citizenship, the incarceration[ FN 231 ] of someone for being addicted to drugs, [ FN 232 ] and excessive physical force against a prisoner could be cruel and unusual. [ FN 233 ] The Supreme Court even struck down the death penalty at one time because of the arbitrary way it was being used[ FN 234 ], but now has allowed it to return while not permitting it to be used for certain offenders, such as those committing crime before under the age of 18[ FN 235 ] and the mentally handicapped. [ FN 236 ] Most of the barbaric crimes involving public humiliation such as whipping, burning at the stake, etc. just fell out of public use. [ FN 237 ]

“Whenever a human being, through the commission of a crime, has become exiled from good, he needs to be reintegrated with it through suffering.

The suffering should be inflicted with the aim of bringing the soul to recognize freely some day that its infliction was just.”

— French Philosopher Simone Weil (1910-1943) [ FN 238 ]

1. What is currently allowed by the court as not being cruel and unusual?

It is shocking what the court does not consider to be cruel and unusual. The Supreme Court has not surprisingly has upheld many punishments that the average American would be shocked to see. [ FN 239 ] In Rummel v. Estelle, 445 U.S. 263 (1980), the Court upheld a life sentence with the possibility of parole for fraud crimes totaling $230. [ FN 240 ] In Harmelin v. Michigan, 501 U.S. 957 (1991), the Court upheld a life sentence without the possibility of parole for possession of 650 grams of cocaine. [ FN 241 ] In Lockyer v. Andrade, 538 U.S. 63 (2003), the Court upheld a sentence imposed under California's three-strikes law when the defendant was convicted of shoplifting videotapes worth a total of $150. [ FN 242 ] Many of these punishments seem to be extreme, but the legislatures have enacted these statutes, and the Court has not struck them down. [ FN 243 ]

First they came for the Jews, but I did nothing because I'm not a Jew.

Then they came for the socialists, but I did nothing because I'm not a socialist.

Then they came for the Catholics, but I did nothing because I'm not a Catholic.

Finally, they came for me, but by then there was no one left to help me.

—Father Niemoller (1946) [ FN 244 ]

With all these constitutional violations occurring, how do these jurisdictions get away with this process?

There are two major reasons why these jurisdictions are able to get away with these violations. The first is embarrassment. The people who are arrested for these crimes are generally embarrassed and ashamed as our Judeo Christian society has taught them to be. Many just plead guilty and take a quick fine, or plead down to sweep it under the rug. [ FN 245 ]

They do not want to fight their accusation nor do they want to fight what may seem like an unjust punishment. [ FN 246 ] It similar to when the CDC attempted to sue the Red Cross for giving HIV infected blood to hemophiliacs. [ FN 247 ] It was wrong for the Red Cross to do what it did, but at the time no one wanted to have their sex life questioned or to admit they had AIDS. [ FN 248 ] It would take a brave soul who is willing to take the press’ ridicule to fight against this injustice.

A second reason is that suspects may threaten to fight their charges on “Johns TV” so the prosecutors office uses the tactic of dropping the charges. [ FN 249 ] This is a very common practice in our judicial system in order not to receive bad precedent against this form of punishment. [ FN 250 ] Over 200 charges have been dropped when pressed, and so the cities are allowed to continue their injustice on the sheep that won’t speak up. [ FN 251 ]

“She had wandered, without rule or guidance, into a moral wilderness.

Her intellect and heart had their home, as it were, in desert places,

where she roamed as freely as the wild Indian in his woods.

The scarlet letter was her passport into regions where other women dared not tread.

Shame, Despair, Solitude! These had been her teachers — stern and wild ones —

and they had made her strong, but taught her much amiss.

— Nathaniel Hawthorne [ FN 252 ]

Conclusion

In an episode of the NBC hit show Frasier, the main character Frasier spends an entire day helping others without receiving a thank you from anyone. [ FN 253 ] Towards the end of the show, he becomes cynical and even thinks of not helping a woman left out in the rain. When he picks the woman up, it turns out to be a transsexual prostitute, whom he immediately dumps off. As soon as he pulls over, sirens flash, and he is arrested. This is only a dream for him in the show but it ruins his life and his career when his mug shot is splattered all over the papers and television. [ FN 254 ] Though he is presumed innocent, society has already convicted him. His city did not have “Johns TV”, but imagine how much worse it would have been if it did. [ FN 255 ]

America has deep rooted religious feelings against sex. [ FN 256 ] America’s Puritan attitudes, rooted in the beliefs of Augustine of Hippo, has created a bias against sex based crimes and a need to humiliate people for their sexual crimes. [ FN 257 ]

The Scarlet Letter laws appear to violate several amendments to the Constitution. The first violation is issuing the punishment of humiliation before the accused sees counsel or a judge or has any form of process, which seems to violate the due process rights in the Fifth and Fourteenth Amendments to the Constitution. [ FN 258 ] The “Johns TV” laws may violate the right to privacy, but this seems a stretch. [ FN 259 ] Public humiliation in the American consciousness seems to be an unusual form of punishment and not allowed today to the extremes permitted in colonial times, so therefore it violates the “cruel and unusual punishment” clause within the Eigth Amendment to the Constitution. [ FN 260 ] These punishments seem and feel like they should “shock the conscience” of the nation, but when competing with American Idol, MSNBC’s “To Catch a Predator” [ FN 261 ] and other pop culture shows where embarrassment and humiliation is not punishment, but entertainment, there will most likely not be pressure from American society to end this “cruel and unusual” punishment. Officers of the law do not feel this is helpful but just a waste of time. [ FN 261 ] This is a reminder to the courts that they are the final safeguard for the minority and it is time for them to step up to the plate and take care of the situation.

[FN 1] Gilchrist, The Life of William Blake, London, 1863,

[FN 2] Nathaniel Hawthorne, The Scarlet Letter 45 (Norton critical ed., 3d ed., W.W. Norton & Company, Inc. 1988) (1850).

[FN 3] Scott E. Sanders, Note, Scarlet Letters, Bilboes and Cable TV: Are Shame Punishments Cruel and Outdated or are They a Viable Option for American Jurisprudence?, 37 Washburn L.J. 359, 363-64 (1998).

[FN 4] Nathaniel Hawthorne, The Scarlet Letter 45 (Norton critical ed., 3d ed., W.W. Norton & Company, Inc. 1988) (1850).

[FN 5] Id.

[FN 6] See Lawrence M. Friedman, Crime and Punishment in American History 37 (1993) (stating the colonies "made heavy use of shame and shaming").

[FN 7] EIGHTEENTH CENTURY PUBLIC HUMILIATION PENALTIES IN TWENTY-FIRST CENTURY AMERICA: THE "SHAMEFUL" RETURN OF "SCARLET LETTER" PUNISHMENTS IN U.S. V. GEMENTERA, 19 BYU J. Pub. L. 499, 522+ (2005)

[FN 8] A tangled web of sex, technology, and civil liberties - The Boston Globe...boston. com/news/nation/articles/2005/06/27/a_tangled_web...

1 of 2 6/28/2005 12:13 PM

[FN 9] Id.

[FN 10] ABC7 report City to post names of 'johns' who solicit prostitutes online, by Sarah Schulte

[FN 11] Scott E. Sanders, Note, Scarlet Letters, Bilboes and Cable TV: Are Shame Punishments Cruel and Outdated or are They a Viable Option for American Jurisprudence?, 37 Washburn L.J. 359, 363-64 (1998).

[FN 12] Id.

[FN 13] Black's Law Dictionary 1185 (8th ed. 2004).

[FN 14] Scott E. Sanders, Note, Scarlet Letters, Bilboes and Cable TV: Are Shame Punishments Cruel and Outdated or are They a Viable Option for American Jurisprudence?, 37 Washburn L.J. 359, 363-64 (1998).

[FN 15] Adam J. Hirsch, From Pillory to Penitentiary: The Rise of Criminal Incarceration in Early Massachusetts, 80 Mich. L. Rev. 1179, 1223 (1982).

[Fn 16] Id.

[Fn 17] See John 18:28 (referring to court where Jesus was brought to trial before Pontius Pilate); Mark 15:16 (same); Matthew 27:27 (same). The Holy Bible Revised Standard Version, Oxford University Press, 1977.

[FN 18] Id.

[FN 19] Lawrence v. Texas, 539 U.S. 538 (2003)

[FN 20] Id.

[FN 21] Id.

[FN 22] Id.

[FN 23] Id.

[FN 24] See People v. Jovanovic, 95 N.Y.2d 846 (2000) (leave to appeal granted, decision without published opinion) [hereinafter Jovanovic II

[FN 25] Acosta v. State of Texas

2006 WL 1594037

Supreme Court of the United States.

[FN 26] Lawrence v. Texas, 539 U.S. 538 (2003)

[FN 27] Sherri Williams v. Attorney General of Alabama, 378 F.3d 1232, 17 Fla. L. Weekly Fed. C 837

[FN 28] Real Strange sex laws. Can be seen at dribbleglass com/subpages/strange/sexlaws.htm

[FN 29] Lawrence v. Texas, 539 U.S. 538 (2003

[FN 30] Acosta v. State of Texas

2006 WL 1594037

Supreme Court of the United States.

[FN 31] N.R.S. 244.345

[FN 32] Id.

[FN 33] Id.

[FN 34] Ashcroft v. American Civil Liberties Union 542 U.S. 656, 124 S.Ct. 2783, U.S.,2004.

[FN 35] Tyler S. Whitty, Eliminating the Exception? Lawrence v. Texas and the Arguments for Extending the right to Marry to Same-sex Couples, 93 KY. L.J. 813

[FN 36] See Dan Markel, Are Shaming Punishments Beautifully Retributive? Retributivism and the Implications for the Alternative Sanctions Debate, 54 Vand. L. Rev. 2157, 2162 (2001) ("[S]haming punishments denote state-sponsored punishments that are aimed at humiliating the offender by degrading the offender's status....").

[FN 37] Vincent J. Schodolski, When Jail Time Just Won't Do, the Judge May Opt to Humiliate You, Chi. Trib., Dec. 29, 2005, at 1 (exploring the rationale of shaming punishment); See Schodolski, supra note 8 (quoting Judge Cicconetti who stated, "we have had success [with shaming]... [w]e don't see these people back").

[FN 38] ABC7 report City to post names of 'johns' who solicit prostitutes online, by Sarah Schulte

[FN 39] Id.

[FN 40] Interview, Richard Christopher Simons with vice squad, Chicago Illinois. (January 26th, 2007)

[FN 41] A tangled web of sex, technology, and civil liberties - The Boston Globe...boston. com/news/nation/articles/2005/06/27/a_tangled_web...

1 of 2 6/28/2005 12:13 PM

[FN 42] Id.

[FN 43] OKLAHOMA CITY, Oklahoma (Reuters) -- The real shame of Shame TV was the ratings. Friday, March 7, 2003 Posted: 10:20 AM EST (1520 GMT) see at nn. com/2003/US/Southwest/03/07/offbeat.shame.tv.reut/index.html

[FN 44] City of Denver website:denvergov. org/apps/johnstv&title=Johns TV

[FN 45] id.

[FN 46] Texas Jail Is Small, But In The Pink

Sheriff Hopes Pink Jumpsuits, Walls, Sheets Encourage Inmates To Reform MASON, Texas, Oct. 10, 2006

.cbsnews. com/stories/2006/10/10/national/main2077390.shtml

[FN 47] Most recently, Dateline NBC has found a solid audience for its 'To Catch a Predator' series, in which Chris Hansen exposes sexual predators prowling the Internet for children by luring them to a house under the pretense of fulfilling sexual fantasies with teenagers only to find a camera crew and a team of police officers waiting nearby. Dateline NBC, To Catch a Predator: Potential Predators in Petaluma (NBC television broadcast, Sept. 29, 2006) (transcript available at msnbc.msn. com/id/14824427/).

[FN 48] A tangled web of sex, technology, and civil liberties - The Boston Globe... www.boston. com/news/nation/articles/2005/06/27/a_tangled_web...

1 of 2 6/28/2005 12:13 PM

[FN 49] id.

[FN 50] Justice Hugo L. Black-1962 at

iberty-tree .ca/qb/Hugo. Black.Quote.8F10

[FN 51] Dan Markel, Are Shaming Punishments Beautifully Retributive? Retributivism and the Implications for the Alternative Sanctions Debate, 54 Vand. L. Rev. 2157, 2162 (2001) ("[S]haming punishments denote state-sponsored punishments that are aimed at humiliating the offender by degrading the offender's status....").

[FN 52] Id.

[FN 53] Id.

[FN 54]id.

[FN 55] CRINGING SKELETONS OUT OF THE CLOSET AND INTO THE LIGHT - "SCARLET LETTER" SENTENCING CAN MEET THE GOALS OF PROBATION IN MODERN AMERICA BECAUSE IT DEPRIVES OFFENDERS OF PRIVACY, 35 Suffolk U. L. Rev. 97, 124 (2001)

[FN 56] Jay Leno: Transcript at quotations.home.worldnet. att. net/sex.html

[FN 57] THREE WORLDS COLLIDE: A NOVEL APPROACH TO THE LAW, LITERATURE, AND PSYCHOLOGY OF SHAME, 6 Tex. Wesleyan L. Rev. 105, 129 (1999)

[FN 58] Congress Eyes Dirty TV

Hearing Expected To Focus On Janet Jackson Super Bowl Incident WASHINGTON, Feb. 11, 2004 transcript at

www.cbsnews. com/stories/2004/02/11/entertainment/main599663.shtml

[FN 59] Bill Maher Transcript- safesearching .com/billmaher/transcripts/

[FN 60] AMERICAN MORNING

What to Expect on Nation's Highways This Weekend; Michael Jackson Case; World War II Memorial Dedication seen at

transcripts .cnn. com /TRANSCRIPTS/0405/28/ltm.05.html-

[FN 61] Movie Day at the Supreme Court or "I Know It When I See It": A History of the Definition of Obscenity By Judith Silver at

/library. findlaw. com/2003 /May/15/132747.html

[FN 62] Lawrence v. Texas, 539 U.S. 538 (2003)

[FN 63] Bobbie L. Stratton, A Prediction of the United States Supreme Court’s Anaylysis of the Defense of Marriage Act, after Lawrence v. Texas, 46 S. Tex L. Rev. 361.

[FN 64] Marlow Detrich .brainyquote. com/quotes/quotes/m/marlenedie127131.html

[FN 66] Warner, Rex (1963). The Confessions of St. Augustine. New York: Penguin Books. ISBN 0-451-62474-2. (Translation into English)

[FN 67] id.

[FN 68] “Life of St. Augustine of Hippo” from the catholic encyclopedia at- .newadvent. org/cathen/02084a.htm

[FN 69] Warner, Rex (1963). The Confessions of St. Augustine. New York: Penguin Books. ISBN 0-451-62474-2. (Translation into English)

[FN 70] Id.

[FN 71] “Life of St. Augustine of Hippo” from the catholic encyclopedia at- .newadvent. org/cathen/02084a.htm

[FN 72] ADAM JAY HIRSCH, THE RISE OF THE PENITENTIARY: PRISONS AND PUNISHMENT IN EARLY AMERICA 5 (Yale University Press 1992) (stating public spectacle always performed before assembled community on market or lecture days); see also Kelly, supra note 23, at 772 (observing public punishments "always well-attended" in colonial America).

[FN 73] Television interview, Booknotes, July 5, 1992

[FN 74] Jon A. Brilliant, The Modern Day Scarlet Letter: A Critical Analysis of Modern Probation Conditions, 1989 DUKE L.J. 1357, 1357 (1989) (noting modern scarlet letter sanctions akin to those imposed in colonial days); Mercurio, supra note 1, at 97 (asserting public humiliation sentences common in early America).

[FN 75] The federal statute known as Megan's Law established the nation's vast state-by-state sex offense registration and community notification system. Act of May 17, 1996, Pub. L. No. 104-145, � 1, 110 Stat. 1345 (amending 42 U.S.C.S. � 14071(d)). Information about each state's sex offender registry can be found by accessing any individual state database and looking for links to others, for example, see New York State's database, available atcriminaljustice. state. ny. us/nsor/links.htm (last visited Jan. 30, 2007).

[FN 76] Wilentz, C.J., Doe v. Poritz (A-170/171-94), 1995, writing for a majority of the Court

21 Iver Peterson, "Mix-Ups and Worse Arising from Sex-Offender Notification", NY Times, January 12, 1996, B1, B6 (quoted by J. Stein, dissenting in Doe v. Poritz (A-170/171-94), 1995

[FN 77] SMITH V. DOE (01-729) 538 U.S. 84 (2003) 259 F.3d 979, reversed and remanded.

[FN 78] The federal statute known as Megan's Law established the nation's vast state-by-state sex offense registration and community notification system. Act of May 17, 1996, Pub. L. No. 104-145, � 1, 110 Stat. 1345 (amending 42 U.S.C.S. � 14071(d)). Information about each state's sex offender registry can be found by accessing any individual state database and looking for links to others, for example, see New York State's database, available at criminaljustice .state. ny. us/nsor/ links.htm (last visited Jan. 30, 2007).

[FN 79] A.R.S. � 13-1405

[Fn 80] Urinating in Public is a Crime-SAN FRANCISCO (AP) - Mar. 10, 2006 see at-abclocal.go com/wpvi/story?section=bizarre&id=3979823

[Fn 81] Stein, Nan, Nancy L. Marshall, and Linda R. Troop, Secrets in Public: Sexual Harassment in Our Schools. Center for Research on Women, Wellesley College, c 1993.

[Fn 82] Wilentz, C.J., Doe v. Poritz (A-170/171-94), 1995, writing for a majority of the Court

21 Iver Peterson, "Mix-Ups and Worse Arising from Sex-Offender Notification", NY Times, January 12, 1996, B1, B6 (quoted by J. Stein, dissenting in Doe v. Poritz (A-170/171-94), 1995

[Fn 83] Mid-Columbia sex offender information

After prison, sex offenders face harassment

archive.tri-cityherald com/sexoffenders/harassment.html

[Fn 84] Nathaniel Hawthorne, The Scarlet Letter 45 (Norton critical ed., 3d ed., W.W. Norton & Company, Inc. 1988) (1850).

[Fn 85] Douglas Litowitz, The Trouble With "Scarlet Letter" Punishment: Subjecting Criminal to Public Shaming Rituals as a Sentencing Alternative Will Not Work, 81 JUDICATURE 52, 52 (1997)

[Fn 86] Statistics from MADD-madd. org/stats/1784

[Fn 87] Department of Justice-.ncjrs. gov/viewall.html

[Fn 88] Id.

[Fn 89] Id.

[Fn 91] Criminal Record Search-bcjobs .ca/content/index.cfm?objectid=58B6001B-1372-5900-ADDEB986A82C5014

[FN 92] A tangled web of sex, technology, and civil liberties - The Boston Globe... boston. com/news/nation/articles/2005/06/27/a_tangled_web...

1 of 2 6/28/2005 12:13 PM

[Fn 93] Interview, Richard Christopher Simons with vice squad, Chicago Illinois. (January 26th, 2007)

[Fn 94] Id.

[Fn 95] Id.

[Fn 96] Id.

[Fn 97] Id.

[Fn 98] Id.

[Fn 99] A tangled web of sex, technology, and civil liberties - The Boston Globe... .boston. com/news/nation/articles/2005/06/27/a_tangled_web...

1 of 2 6/28/2005 12:13 PM

[Fn 100] A tangled web of sex, technology, and civil liberties - The Boston Globe...boston. com/news/nation/articles/2005/06/27/a_tangled_web...

1 of 2 6/28/2005 12:13 PM

[Fn 101] Interview, Richard Christopher Simons with officer sam ******* vice squad, Chicago Illinois. (January 26th, 2007)

[Fn 102] JOHN RUSKIN, The Stones of Venice, in THE NATURE OF GOTHIC 21 (Boston, Estes & Lauriat 1892).

[Fn 103] Jon A. Brilliant, The Modern Day Scarlet Letter: A Critical Analysis of Modern Probation Conditions, 1989 DUKE L.J. 1357, 1357 (1989) (noting modern scarlet letter sanctions akin to those imposed in colonial days); Mercurio, supra note 1, at 97 (asserting public humiliation sentences common in early America).

[Fn 104] Walker, N. (2002) Prostituted Teens: More than a Runaway Problem. Michigan Family Impact Seminars. Accessed Online on December 2004 at: icyf.msu. edu/publicats/briefng2/2002-2.pdf [Fn 105] Id.

[Fn 106] Interview, Richard Christopher Simons with officer sam ******* vice squad, Chicago Illinois. (January 26th, 2007)

[FN 107]id.

[FN 108] id

[FN 109] Interview, Richard Christopher Simons with seargant at downtown police department. (January 26th, 2007)

[FN 110] id.

[FN 111] Richard Christopher Simons attempting to interview people imaged on website for Chicago Police Department.

[FN 112] id

[FN 113] id.

[FN 114] Barbier v. Connolly, 113 U.S. 27, 35 (1885)

[FN 115] U.S. Const. Amend. V

[FN 116] EIGHTEENTH CENTURY PUBLIC HUMILIATION PENALTIES IN TWENTY-FIRST CENTURY AMERICA: THE "SHAMEFUL" RETURN OF "SCARLET LETTER" PUNISHMENTS IN U.S. V. GEMENTERA, 19 BYU J. Pub. L. 499, 522+ (2005)

[FN 117] U.S. Const. Amend. V

[FN 118] EIGHTEENTH CENTURY PUBLIC HUMILIATION PENALTIES IN TWENTY-FIRST CENTURY AMERICA: THE "SHAMEFUL" RETURN OF "SCARLET LETTER" PUNISHMENTS IN U.S. V. GEMENTERA, 19 BYU J. Pub. L. 499, 522+ (2005)

[FN 120] Kyle J. Kaiser, Note, Twenty-First Century Stocks and Pillory: Perp Walks as Pretrial Punishment, 88 Iowa L. Rev. 1205, 1211-12 (2003)

[FN 121] U.S. Const. Ammen. VI.

[FN 122] Interview, Richard Christopher Simons with officer sam ******* vice squad, Chicago Illinois. (January 26th, 2007)

[FN 123] Id.

[FN 124] EDWARDS v. ARIZONA, 451 U.S. 477 (1981)

[FN 125] Taylor v. Hayes,

418 U.S. 488, 94 S.Ct. 2697, 41 L.Ed.2d 897, U.S. Ky., Jun 26, 1974 (NO. 73-473)

[FN 126] U.S. Const. Ammen. XIV.

[FN 127] Id.

[FN 128] Griswold v. Connecticut. 381 US 479 (1965).

[FN 129] Oscar Wilde (1854-1900), Anglo-Irish playwright, author. The Soul of Man Under Socialism, in Fortnightly Review (London, Feb. 1891; repr. 1895).

[FN 130] Griswold v. Connecticut. 381 US 479 (1965).

[FN 131] Id.

[FN 132] ROE v. WADE, 410 U.S. 113 (1973)

[FN 133] Lawrence v. Texas, 539 U.S. 538 (2003)

[FN 134] PAUL v. DAVIS, 424 U.S. 693 (1976)

[FN 135] Lawrence v. Texas, 539 U.S. 538 (2003)

[FN 136] Id.

[FN 137] Griswold v. Connecticut. 381 US 479 (1965).

[FN 138] U.S. Const. Ammen. V, U.S. Const. Ammen. XIV

[FN 139] U.S. Const. Ammen. IX

[Fn 140] Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).

[Fn 141] Id.

[Fn 142] Justice Frank Murphy, draft of an unpublished dissent (1946)

[FN 143] Tom Clancy quoted whatquote. com/quotes/Tom-Clancy/38137-Back-in-pre-Revoluti.htm,

[Fn 144] FURMAN v. GEORGIA, 408 U.S. 238 (1972)

[Fn 145] Id.

[Fn 146] Bill Maher safesearching. com/billmaher/transcripts

[Fn 147] Id.

[Fn 148] Id.

[Fn 149]Id.

[Fn 150] Id.

[Fn 151] U.S. Const. Ammen. VI.

[Fn 152] Jon A. Brilliant, The Modern Day Scarlet Letter: A Critical Analysis of Modern Probation Conditions, 1989 DUKE L.J. 1357, 1357 (1989) (noting modern scarlet letter sanctions akin to those imposed in colonial days); Mercurio, supra note 1, at 97 (asserting public humiliation sentences common in early America).

[Fn 153] RALPH A. ROSSUM, ANTONIN SCALIA'S

JURISPRUDENCE: TEXT AND TRADITION (2006).

[Fn 154] Id.

[Fn 155] FURMAN v. GEORGIA, 408 U.S. 238 (1972)

[Fn 156]Id.

[Fn 157] Marquis de Sade (1740-1814), French author.

Letter, 21 May 1781, to his wife from Vincennes prison (published in Selected Letters, no. 8, ed. by Margaret Crosland, 1965).

[Fn 158] Scott E. Sanders, Note, Scarlet Letters, Bilboes and Cable TV: Are Shame Punishments Cruel and Outdated or are They a Viable Option for American Jurisprudence?, 37 Washburn L.J. 359, 363-64 (1998).

[Fn 159] Id.

[Fn 160] Id.

[Fn 161] Id.

[Fn 162] Id.

[Fn 163] Jon A. Brilliant, The Modern Day Scarlet Letter: A Critical Analysis of Modern Probation Conditions, 1989 DUKE L.J. 1357, 1357 (1989) (noting modern scarlet letter sanctions akin to those imposed in colonial days); Mercurio, supra note 1, at 97 (asserting public humiliation sentences common in early America).

[Fn 164] Id.

[Fn 165] Id.

[Fn 166] Id.

[Fn 167] id.

[Fn 168] Id.

[Fn 169] RALPH A. ROSSUM, ANTONIN SCALIA'S JURISPRUDENCE: TEXT AND TRADITION (2006). [Fn 170] Duke law

[Fn 171] TROP v. DULLES, 356 U.S. 86 (1958)

[Fn 172] id.

[Fn 173] Id.

[Fn 174] Id.

[Fn 175] Id.

[Fn 176] Id.

[Fn 177] Id.

[Fn 178] FURMAN v. GEORGIA, 408 U.S. 238 (1972)

[Fn 179] id.

[Fn 180] id.

[Fn 181] id.

[Fn 182] Kyle J. Kaiser, Note, Twenty-First Century Stocks and Pillory: Perp Walks as Pretrial Punishment, 88 Iowa L. Rev. 1205, 1211-12 (2003)

[Fn 183] id.

[Fn 184] id.

[Fn 185] id.

[Fn 186] id.

[Fn 187] Kyle J. Kaiser, Note, Twenty-First Century Stocks and Pillory: Perp Walks as Pretrial Punishment, 88 Iowa L. Rev. 1205, 1211-12 (2003)

[Fn 188] Id.

[Fn 189] Bambrick, M. and Roberts, G.E. The sterilization of people with a mental handicap: the views of parents. Journal of Mental Deficiency Research 1991 35(4) 353-63

[Fn 190] Kyle J. Kaiser, Note, Twenty-First Century Stocks and Pillory: Perp Walks as Pretrial Punishment, 88 Iowa L. Rev. 1205, 1211-12 (2003)

[Fn 191] Scott E. Sanders, Note, Scarlet Letters, Bilboes and Cable TV: Are Shame Punishments Cruel and Outdated or are They a Viable Option for American Jurisprudence?, 37 Washburn L.J. 359, 363-64 (1998).

[Fn 192] Id.

[Fn 193] FURMAN v. GEORGIA, 408 U.S. 238 (1972)

[Fn 194] Id.

[Fn 195] Id.

[Fn 196] Id.

[Fn 197] Id.

[Fn 198] Id.

[Fn 199] Steven Weinberg quote Address at the Conference on Cosmic Design, American Association for the Advancement of Science, Washington, D.C. (April 1999) This comment is modified in a later article derived from these talks: [

[Fn 200] Chief Justice Earl Warren, TROP v. DULLES, 356 U.S. 86 (1958)

[Fn 201] June Arney, Shame and Punishment: Our Forebears Put Scoundrels in Stocks, or Branded Them with the "Scarlet Letter." Now, 300 Years Later, "Shame" Sentences Are Back in Vogue, Virginian-Pilot Ledger-Star, Mar. 2, 1997, at J1; Judge Uses Humiliation as Sentencing Tool, Tampa Trib., Dec. 7, 1996, at 7; Jack Kisling, Courts Rediscover Shame, Denver Post, Dec. 8, 1996, at G3; Julia C. Martinez, Judges Using 'Shame Punishment' More to Emphasize Message, Fla. Times-Union, Feb. 16, 1997, at F1; Ted Poe, Public Humiliation Is Effective Deterrent, Dallas Morning News, Apr. 11, 1997, at 31A; Elizabeth L. Spaid, Humiliation Comes Back as Criminal Justice Tool, Christian Sci. Monitor, Dec. 17, 1996, at 1; Neal Thompson, A N.J. City Borrows From 'Scarlet Letter' to Shame Sex Solicitors, Christian Sci. Monitor, Aug. 20, 1996, at 3.

[Fn 202] Id.

[Fn 203] Id.

[Fn 204] iD.

[Fn 205] In 1994, Oregon became the first state to

legalize assisted suicide when voters approved a ballot measure enacting the Oregon Death With Dignity Act, which survived a 1997 ballot measure seeking its repeal. See Gonzales v. Oregon, 126 S.Ct. 904, 911 (2006). In 1998, Michigan, the home state of Dr. Jack Kevorkian, also had an initiative placed on the ballot by its voters to allow physician-assisted suicide, but it did not pass. See Assisted Suicide Law Fails in Michigan, St. Louis Post-Dispatch, Nov. 4, 1998, at A7.

[Fn 206] Victor Hugo (1802-85), French poet, dramatist, novelist. Les Mis�rables, pt. 4, bk. 7, ch. 1 (1862).

[Fn 207] Interview, Richard Christopher Simons with seargant at downtown police department. (January 26th, 2007)

[Fn 208] id.

[Fn 209] id.

[Fn 210] FURMAN v. GEORGIA, 408 U.S. 238 (1972)

[Fn 211] Interview, Richard Christopher Simons with seargant at downtown police department. (January 26th, 2007)

[Fn 212] FURMAN v. GEORGIA, 408 U.S. 238 (1972)

[Fn 213] Friedrich Nietzsche (1844-1900), German philosopher. The Genealogy of Morals, essay 2, aph. 14 (1887).

[Fn 214] Most recently, Dateline NBC has found a solid audience for its 'To Catch a Predator' series, in which Chris Hansen exposes sexual predators prowling the Internet for children by luring them to a house under the pretense of fulfilling sexual fantasies with teenagers only to find a camera crew and a team of police officers waiting nearby. Dateline NBC, To Catch a Predator: Potential Predators in Petaluma (NBC television broadcast, Sept. 29, 2006) (transcript available at msnbc.msn. com/id/14824427/).

[Fn 215] cops. com/

[Fn 216] A tangled web of sex, technology, and civil liberties - The Boston Globe... boston. com/news/nation/articles/2005/06/27/a_tangled_web...

1 of 2 6/28/2005 12:13 PM

[Fn 217] FURMAN v. GEORGIA, 408 U.S. 238 (1972)

[Fn 218] Id.

[Fn 219] Albert Camus (1913-60), French-Algerian philosopher, author. Resistance, Rebellion and Death, "Reflections on the Guillotine" (1961).

[Fn 220] A tangled web of sex, technology, and civil liberties - The Boston Globe... .boston/news/nation/articles/2005/06/27/a_tangled_web...

1 of 2 6/28/2005 12:13 PM

[Fn 221] Id.

[Fn 222] (In re Lynch (1972) 8 Cal.3d 410, 424; In re DeBeque (1989) 212 Cal.App.3d 241, 248.) [Fn 224]

[Fn 225] Wilkerson v. Utah, 99 U.S. 130 (1878).

[Fn 226] id.

[Fn 227] id.

[Fn 228] Id.

[Fn 229] id.

[Fn 230] Id.

[Fn 231] Id.

[Fn 232] Robinson v. California, 370 U.S. 660 (1962)[1],

[Fn 233] Wilkerson v. Utah, 99 U.S. 130 (1878).

[Fn 234] FURMAN v. GEORGIA, 408 U.S. 238 (1972)

[Fn 235] Aggravating Youth: Roper v. Simmons and Age Discrimination, 2005 Sup. Ct. Rev. 51, 72-81.

[Fn 236] Atkins v. Virginia, 536 U.S. 304 (2002),

[Fn 237] EIGHTEENTH CENTURY PUBLIC HUMILIATION PENALTIES IN TWENTY-FIRST CENTURY AMERICA: THE "SHAMEFUL" RETURN OF "SCARLET LETTER" PUNISHMENTS IN U.S. V. GEMENTERA, 19 BYU J. Pub. L. 499, 522+ (2005)

[Fn 238] Simone Weil (1909-43), French philosopher, mystic. "Human Personality" (published in La Table Ronde, Dec. 1950; repr. in Selected Essays, ed. by Richard Rees, 1962).

[Fn 239] FURMAN v. GEORGIA, 408 U.S. 238 (1972)

[Fn 240] Rummel v. Estelle, 445 U.S. 263 (1980),

[Fn 241] Harmelin v. Michigan, 501 U.S. 957 (1991),

[Fn 242] Lockyer v. Andrade, 538 U.S. 63 (2003)

[Fn 244] Pastor Martin Niemoller, First They Came for the Jews (1938), available at .rkdn. org/u-r-next.htm.

[Fn 245] Interview, Richard Christopher Simons with officer sam ******* vice squad, Chicago Illinois. (January 26th, 2007)

[Fn 246] Id.

[Fn 247] And the Band Played On: Politics, People, and the AIDS Epidemic. New York: St. Martin's.Smith-Sehdev, A. E., and G. M. Hutchins. 2001.

[Fn 248] Id.

[Fn 249] .slashdot.g/article pl?sid=01/12/13/2157215&mode=nested

[Fn 250] Id.

[Fn 251] A tangled web of sex, technology, and civil liberties - The Boston Globe... boston/news/nation/articles/2005/06/27/a_tangled_web...

1 of 2 6/28/2005 12:13 PM

[Fn 252] , The Scarlet Letter, Chapter XVIII "A Flood of Sunshine

[Fn 253] Frasier, NBC, Transcript available at.frasieronline. co. uk/ episodeguide

[Fn 254] Id.

[Fn 255] Id.

[Fn 256]Family Reasearch counsel-Heritage foundation- .frc. org/get.cfm?c=HOME

[Fn 257] Warner, Rex (1963). The Confessions of St. Augustine. New York: Penguin Books. ISBN 0-451-62474-2. (Translation into English)

[Fn 258] U.S. Const. Ammen. V, U.S. Const. Ammen. XIV

[Fn 259] Griswold v. Connecticut. 381 US 479 (1965).

[Fn 260] U.S. Const. Ammen. VIII

[Fn 261] Most recently, Dateline NBC has found a solid audience for its 'To Catch a Predator' series, in which Chris Hansen exposes sexual predators prowling the Internet for children by luring them to a house under the pretense of fulfilling sexual fantasies with teenagers only to find a camera crew and a team of police officers waiting nearby. Dateline NBC, To Catch a Predator: Potential Predators in Petaluma (NBC television broadcast, Sept. 29, 2006) (transcript available at msnbc .msn. com/id/14824427/).


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