Note: Partner Jon Katz sent the following opinion to a Sunday Times reporter requesting opinions on the effectiveness of so-called embarrassment sentences, for a November 11, 2001, article. The reporter explained that "I'm writing about the effect of embarrassment sentencing by American courts on youth convicted of anti-social acts -- e.g., an Ohio judge ordered two male vandals to dress in drag for an hour, another court ordered teens to listen to polka music. Does this work? This is for publication next Sunday. All ideas and thoughts are welcome. Need leads by 2 p.m. PST Thursday, November 8."

Jon Katz responded as follows: 

Judges should not be so quick to impose these embarrassment sentences, at least not without giving the defendant the option to choose between the embarrassment sentence and a more traditional one. First of all, not every alleged criminal act justifies a prosecution, let alone a sentence. As an example, I am embarrassed that the United States has a criminal justice system that enables prosecutions for criminal libel and for uttering profanities. To permit such embarrassment sentences arguably encourages more misdemeanor prosecutions, which only clogs up the courts all the more. Without the embarrassment sentences, prosecutors and judges might dismiss or inactivate more cases to limit prison overcrowding.

To force a convicted defendant to appear in drag for an hour sounds no more enlightened than when Red Guards paraded intellectuals down the street with dunce caps during China's Cultural Revolution. Moreover, such a sentence mandates the defendant to engage in expression that the defendant does not wish to engage in; this makes the sentence a violation of the defendant's First Amendment rights to free expression, because the right to choose not to express is as sacred as the right to choose to express.

The sentence to listen to polka music is in bad taste at best, and is reminiscent of the music torture performed on one of the ne'er do wells in "A Clockwork Orange."

I provide you these views as a criminal defense lawyer who wants massive improvement in the criminal justice system, including widespread drug decriminalization for users and distributors; legalization of prostitution, gambling, and sexually-oriented entertainment; and strengthened Constitutional protections for all people accused of crimes.

Please feel free to call me if I may provide any further comments. Thanks. Jon Katz.

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