A Missouri judge ordered a 29-year-old man to watch the movie Bambi once a month during his year behind bars, authorities announced on Monday. David Berry Jr. had pleaded guilty to the “illegal taking of deer” in what the Missouri Department of Conservation is calling “one of the state’s largest-ever poaching investigations.” Berry is also serving a 120-day sentence for violating his felony firearms probation.
Prosecutors say that Berry, his brothers, and their father were part of a group that illegally killed hundreds of deer over a three-year period. In some cases, the group allegedly took the heads of the deer and let their bodies decay. After Berry’s guilty plea, County Judge Robert E. Greene ordered him to watch the 1942 Disney film Bambi, a cartoon in which hunters kill the titular fawn’s mother, on a monthly basis. Are unconventional punishments like this legal?
It’s a gray area. Judges have been handing down gimmicky punishments, typically meant to shame offenders, for decades. In 2003, a judge in Kentucky gave an abusive father the choice between spending 30 nights in jail or sleeping in a doghouse, as he allegedly forced his 11-year-old stepson to do. The next year, a judge in Georgia instructed a man to buy a casket and keep it in his home as a constant reminder of the consequences of drug addiction. Judge Michael Cicconetti of Ohio has gained a reputation for doling out unconventional punishments, ordering offenders to complete tasks like shoveling manure, wishing mothers “Happy Mother’s Day” at a church, and visiting a morgue to look at the corpses.
Legal advocates have long argued that these “creative” sentences violate the Eighth Amendment’s prohibition against cruel and unusual punishment. Lawyers for a man named Shawn Gementera, who was made to wear a sign reading, “I Stole Mail. This Is My Punishment” outside a post office, asked the Supreme Court to find the practice unconstitutional in 2005. However, the justices declined to take up the case. The court has generally limited the scope of the Eighth Amendment and the types of punishments it covers. Federal appeals courts have also upheld unusual punishments, and its defenders claim that shame has long been a part of the justice system and that no corporal cruelty is involved.
“The fact that these punishments may escape constitutional sanctions does not mean that they are appropriate for judges to impose,” says Jonathan Turley, professor of public interest law at George Washington University. “It plays to an inclination of some judges to act like little Caesars. … It really runs against the grain of a system based on the rule of law.” Turley points out that the vast majority of judges in the U.S. do not take such a sensational approach to sentencing and are often appalled at prospect.
Most judges who mete out these sorts of punishments are elected state officials. The unusual sentences help to raise their public profiles and endear themselves to a segment of the voting population that is enthralled by these zany judicial stunts. Turley surmises that the Bambi punishment in Missouri was very likely tailored to public relations rather than a sincere effort to reform the offender. “The judge cannot possibly believe that watching Bambi is going to produce an epiphany in this man’s life,” says Turley. “That leaves two possibilities: that the judge is trying to make a mockery of the defendant or is simply trying use the defendant for a type of public joke.”
It’s unlikely that the Supreme Court or lower federal courts will be the ones to put a stop to these punishments. Instead, Turley says, state bar associations and people in legal professions should be actively discouraging this behavior on the part of judges. “Lawyers in places like Missouri need to bring charges against these judges. The state judges as a whole need to make clear statements against the use of these types of creative or shaming punishments,” he says. “The failure to do that is almost as shocking as these sentences.”
June Tangney, professor of psychology at George Mason University, agrees that shaming punishments are not likely to reform offenders. “Our research says that shame in general does not inhibit re-offense, whether it’s criminals or fifth-graders,” Tangney said, adding that the Missouri case seems particularly humiliating and disrespectful.
Tangney, who has been researching restorative justice and the psychology of rehabilitation for about 30 years, claims that shame often angers offenders and causes them to blame other people for their situation instead of accepting responsibility. “People blame outwards: ‘That stupid judge, the stupid laws, my brother-in-law who got me involved in this,’ ” Tangney said. There is also little evidence that shame punishments have a deterrent effect on other potential offenders since it is difficult to conduct studies on actions people didn’t take.
According to Tangney, punishments that instill guilt and truly encourage convicts to think about their own actions are more productive than those intended to humiliate them. She does think that there’s a possibility of devising creative sentences that are truly effective, which would involve legitimate community service tied to the crime, such as helping out at the scene of car accidents if you’re convicted for drunk driving.