Forced apologies from Orie debated

A photo of former Pa. Supreme Court Justice Joan Orie Melvin in handcuffs is a controversial part of her sentence. Story, B9.
A photo of former Pa. Supreme Court Justice Joan Orie Melvin in handcuffs is a controversial part of her sentence. Story, B9.

Some wonder if the punishment can be enforced.

Posted: May 10, 2013

The sentence imposed Tuesday on Joan Orie Melvin likely was meant to humiliate the former justice of the Pennsylvania Supreme Court. And experts agree that it will.

But it also requires her to apologize to former staffers and colleagues even though she has repeatedly proclaimed her innocence and said she intends to appeal her conviction.

Some wonder whether such a caveat can be enforced.

Melvin was found guilty in February of six criminal charges, including three felonies, for using her judicial staff on Superior Court to work on her two statewide campaigns for the high court, in 2003 and 2009.

On Tuesday, Allegheny County Court Judge Lester Nauhaus sentenced the 57-year-old mother of six to three years' house arrest, to be followed by two years' probation. What Nauhaus did next raised eyebrows: He required Melvin to go into chambers after the sentencing hearing, be handcuffed by a deputy sheriff, and have her picture taken by the county photographer.

As part of her sentence, she must send copies of the photo to about 500 trial and appellate judges in Pennsylvania with a handwritten apology.

Jules Epstein, a criminal law professor at Widener University, said the sentence raises a significant question about Melvin's Fifth Amendment rights.

"Even when you are convicted of a crime, you retain your Fifth Amendment protection against self-incrimination," he said. "You can't be punished for refusing to exercise it."

Epstein also said he does not believe the apology aspect of her sentence is enforceable.

A good lawyer, he said, would go back to the judge and ask for that part of the order to be modified or be held in abeyance while appeals play out.

In the meantime, the shaming aspect of the sentence began almost immediately, when on Wednesday the court released the black-and-white photo of Melvin, her hands clasped in front of her and bound by cuffs, to the news media.

Stephen Garvey, a law professor at Cornell University who has written on so-called shaming penalties, said that in recent years unconventional sentences have come more into fashion.

A woman in Cleveland last year had to hold a sign at roadside that read, "Only an idiot would drive on the sidewalk to avoid a school bus." Names of men arrested for patronizing prostitutes have been published in newspapers. And sometimes, drunken-driving offenders have been forced to display placards on their cars noting their violations.

"Typically, shaming penalties are imposed as conditions of probation," Garvey said. "Rather than go to jail, you have to do this."

Often, the objections that surround those types of punishment don't have to do with the law. "You can object to them on moral grounds - that you shouldn't humiliate and demean people," Garvey said.

He said he doesn't know of any studies showing that shaming results in deterrence.

Gershen Kaufman, a retired psychology professor who has authored books on shaming, said it most often has a detrimental effect on defendants. It's a variant of medieval times, when offenders were forced to stand on a pillory and be gazed upon by the community, he said.

"I don't believe shaming is an effective way of dealing with this," Kaufman said. "Shame is so disturbing and disruptive, and invariably it causes psychic harm."

He said shame often has a negative impact on a defendant's loved ones as well. "It's a public humiliation of the whole kinship clan," Kaufman said.

In the Melvin case, in which two of her sisters were also convicted in related cases, that could be particularly true.

As for the sentence imposed on Melvin, Garvey questioned its value. "It feels to me like it goes over the line, that it's designed just to humiliate her," he said. "Forcing her to have the handcuffs feels like too much to me."

Kaufman agreed. "I think it's deeply humiliating," he said. "We don't do that with other criminals."

Handcuffs or not, Widener's Epstein pointed out, Melvin is not going to jail.

Instead, she is to remain in her 3,655-square-foot home in Marshall, north of Pittsburgh.

Epstein said, "A prudent lawyer might look at that and say, in the big picture, 'You're not going to jail. Let's get on with your appeal and seek modification on the apology.' "


Contact Paula Reed Ward at 412-263-2620 or pward@post-gazette.com.

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