The Weird History of Unorthodox Sentencing in the U.S.

A man convicted in an illegal, multi-year deer poaching scheme, was sentenced to watch Bambi once a month. While the punishment is certainly unique, the methodology isn't.
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During the year-long jail sentence the poacher has been served, he is required to watch Bambi once a month.

During the year-long jail sentence the poacher has been served, he is required to watch Bambi once a month.

Deep in the right-angled corner of southwestern Missouri, behind the bars of the Lawrence County Correctional facility, a television flickers against the low light of the jail's dayroom. The Disney classic Bambi is yet again being screened for an audience of one.

As young Bambi witnesses his mother's murder at the hands of the offscreen villain known only as "Man"—a hunter who nearly burns down the forest and all its anthropomorphized animal inhabitants with his reckless sporting—the incarcerated Missourian breaks down into cascading sobs of empathy and realization. The message has finally clicked for him: He should never have hunted deer without a permit.

This appears to be the goal of an unusual punishment recently handed down by a Missouri judge to a man convicted in an illegal, multi-year deer poaching scheme, in which hundreds of bucks were decapitated for their antlers and their bodies left to rot at the scenes of the crime. During the poacher's one-year jail sentence, he is required to watch Bambi once a month—beginning this month before Christmas Eve, the Springfield News-Leader reports.

The judge "was kind of trying to get through to this guy, some kind of emotional response over the gravity of what he has done," the local prosecutor told the New York Times. Although Bambi had a similar effect on Paul McCartney—he cites it as an early influence on his animal rights activism—there appears to be no precedent for a court-ordered Bambi viewing. However, punishments tailored to the spirit and content of a corresponding crime have a sizable, if idiosyncratic, history in the United States and around the world.

The earliest example of this kind of criminal justice might be the Code of Hammurabi, a Mesopotamian legal system that began during the early 18th century B.C.E. The code, named in praise of its enacting king, called for a retributive system of punishment in which the damages of a crime were often repaid by inflicting the same act on the accused person. "If a man destroy the eye of another man, they shall destroy his eye," law 196 begins. "If one break a man's bone, they shall break his bone."

In more recent U.S. history, a Michigan teenager was sentenced to two hours of listening to Vegas schmaltz king Wayne Newton for playing hip-hop at a volume that violated his neighborhood's noise ordinance. An Ohio woman was ordered to cook Thanksgiving dinner for three police officers after she pled guilty to felony assault for knocking down a cop who was directing traffic. One woman was sanctioned to spend two morning rush hours in Cleveland wearing a poster board that read "only an idiot drives on the sidewalk to avoid a school bus."

These kind of alternative penalties, often called shaming sanctions, were a popular subject of debate among law professors during the '90s when the rise in mass incarceration spurred discussions about alternatives to prison, says Stephen Garvey, a law professor at Cornell University. One of the most discussed papers, by legal scholar Dan Kahan, asked why punishments whose severity fell between prison and probation weren't used more often. According to Garvey, Kahan's answer was that judges and the public didn't view these intermediate punishments as "retributive enough," or "condemnatory enough" of the crimes they punished. And Kahan argued that shaming penalties, like being forced to wear a scarlet letter, would read as more convincingly finger-wagging—and so would be utilized more often.

Two decades later, shaming penalties are usually left out of most discussions by the law literati. Garvey attributes this decline to the left-leaning academy, which tends to view shaming as "icky." "The academic debate has kind of petered out, I think it's more of a curiosity than it is anything else," Garvey says. Instead the specially tailored shaming sentence has primarily become the purview of big personality judges, often in Texas or Ohio.

One of the most famous of these judges is Ted Poe, who served as a judge in Houston for 25 years, before using his headline-grabbing unorthodox sentences to buoy a congressional run (He will have served 14 years in the House of Representatives when he retires in January.) During his time as a judge, Poe's creative punishments—dubbed "Poetic Justice" by local media—included forcing a man to apologize in public to his wife for beating her.

A municipal judge in a Cleveland suburb on the shore of Lake Erie, Michael Cicconetti, has also made national news dozens of times for punishments like requiring a man convicted of drunk driving to spend three days watching gruesome footage of car crash fatalities, and ordering a woman who abandoned a large litter of kittens to spend a night alone in the woods without food, water, or shelter. He sentenced a woman who ditched her cab without paying to walk the 30-mile distance she rode as punishment. Cicconetti reduced the jail sentence of a man who ran from the police on the condition that he train for a five-mile race.

Many of these wacky punishments are delivered with a smirk from the judge and received with a hearty belly laugh from the press corps. But are they legal? A popular concern is that these strange sanctions are a violation of the Eighth Amendment, the prohibition of "cruel and unusual punishment." But to successfully challenge a punishment under the Eighth Amendment, "textually speaking, the punishment would have to be both cruel and unusual," Fordham's Lee says. "The Bambi sanction is certainly unusual, but it's not clear that it's cruel, especially compared to the kind of hardship that is generally experienced by the people who are just sitting in prison."

A side view of the "fingertip" of the Code of Hammurabi. The code called for a retributive system of punishment in which the damages of a crime were often repaid by inflicting the same act on the accused person.

A side view of the "fingertip" of the Code of Hammurabi. The code called for a retributive system of punishment in which the damages of a crime were often repaid by inflicting the same act on the accused person.

For a punishment to be considered cruel, and thus a violation of the Eighth Amendment, courts have generally found that the punishment must offend the "evolving standard of decency." It's not enough for a court order to just be weird. Some unorthodox penalties are also challenged under laws that govern conditions of probation, such as the Sentencing Reform Act, Garvey says.

One of the best-known challenges is a case where a man convicted of stealing mail was ordered to stand outside a post office wearing a sign that read "I stole mail. This is my punishment." The punishment was challenged under four amendments of the constitution, including the "cruel and unusual punishment" provision, as well as the Sentencing Reform Act. However, a Federal Circuit Court of Appeals upheld the punishment as serving a legitimate purpose. "It's very difficult to win an argument like that just because the prevailing idea is that whoever is doing the sentencing has some discretion to figure out what the appropriate punishment is," says Youngjae Lee, a law professor at Fordham University. "You have to kind of defer to that entity."

Challenges are especially common in punishments related to sex offender notification. "The argument that a type of punishment is dehumanizing has been raised a lot in the sex offender registration context, because it's also seen as a type of shaming sanction," Lee says. However, courts have largely upheld registry laws so far, because they usually don't view them as punishment, but a public good. "The way they think about it, it's actually not a punishment, it's just a way for the state to keep track of dangerous people. They've already been punished, and this is something different—general harm prevention," Lee says.

One precedent case for these challenges was a punishment struck down by the Illinois Supreme Court in the late '90s, when a man convicted of battery was ordered to post a sign in front of his house that said "Warning! A violent felon lives here. Enter at your own risk!" The court found this sanction "unreasonable."

Beyond the question of legality, many legal scholars find the usefulness of many of these punishments to be dubious. "Some of these are more defensible—even attractive—to me than others. The attractive ones try to teach a person something, rather than just humiliating them," Garvey says. "To humiliate them you need to put them out in public. But to educate them you don't need to do that." Garvey distinguished between the once-common, and still-occurrent, practice of posting the pictures of men caught soliciting sex workers, with a program that educates Johns about the difficulties and dangers of sex work.

Other scholars worry that many alternative punishments may shift the control of the punishment too far into the hands of the community. "The state is kind of sending people out there, to be punished by private citizens. At least when you're in prison, it's very clear that you're being punished by the state. So it might be stigmatizing that you've been to prison, but it becomes a side effect of the punishment," Lee says. "Whereas shaming punishments enlist your peers to give you the punishment, and letting the mob mentality take over. That's quite troubling."

The mob mentality may not have taken over in the case of the Bambi punishment, unless the chief punishment is the humiliation of being publicly ordered to watch a children's movie 12 times over the coming year. But there are other, more practical issues with the order: "The problem is we only have the one room," Sheriff Brad DeLay told the Times, speaking about the 52-person Lawrence County jail where the hunter is headed. "We have to run everybody out except for one person."

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