Sentencing / Post-Conviction

Is 'Scarlet Letter Sentencing' Experiencing an Upswing?

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A recent ad in the Boston Herald featured an announcement by the Rockmore Co. admitting to and apologizing for discharging human waste into coastal Massachusetts waters.

The ad, no surprise, was part of a court-ordered sentence, and is something that National Public Radio cites as an increasing trend in sentencing.

Michael Sullivan, a former U.S. attorney for Massachusetts and current partner at Ashcroft Sullivan has served on sentencing subcommittees and has helped increase the use of these sanctions in Massachusetts, NPR says. He says the goal of these sentences is deterrence, but adds that they also are satisfying to the public.

“I think that’s what might frustrate the public—when it doesn’t appear that the company has been punished sufficiently enough, by simply writing a check,” he told NPR.

There have been some examples of publicity-based sentences against individuals in recent years. U.S. District Judge Ricardo Urbina sentenced a former executive of Bristol-Myers Squibb Co. found guilty lying to the Federal Trade Commission to cover up a secret agreement between his company and a Canadian drugmaker to write a book so others “don’t find themselves in a similar situation.” Urbina also sentenced a lobbyist who made illegal campaign contributions to write a monograph describing the criminal provisions of federal campaign contribution laws and distribute it to 2,000 other lobbyists at his own expense.

In 2008, a Florida judge sentenced teens who filmed a prank and posted it on YouTube to post an apology on YouTube.

And back in 2007, the ABA Journal predicted “scarlet letter sentencing” would take hold and wrote about an Indiana judge who sentenced teens with driving infractions to ride the school bus.

But federal public defender Stellio Sinnis told NPR that sentences like these against individuals, rather than corporations, seem to be more about retribution than deterrence. “When you impose a sentence that embarrasses family members and creates hardship—public humiliation and public ridicule—and kind of ostracizes someone from the community, I think it’s gratuitous, and that’s just counterproductive to what you want to achieve,” he says.

Ohio State University law professor Doug Berman also notes the distinction and told NPR that judges don’t have such considerations with corporations.

“Corporations don’t feel,” he said.

Hat Tip: Wall Street Journal Law Blog

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