B. State Results: General Observations and Specific Findings

Unlike a fine, probation, or even custody, judicially imposed shaming punishments often place juveniles in emotionally and physically vulnerable situations. Shaming creates public exposure for the offense, undermining the traditional confidential nature of juvenile justice. Anyone subjected to a shaming punishment that involves public exposure may feel emotionally or physically insecure, regardless of age. However, some articulations of these punishments may invite physical or verbal ridicule, or even risk of harm.

Because of their minor status, society presumes juveniles to be individuals in need of protection. As part of this protection, states recognize a legitimate interest in preserving a juvenile's anonymity. Thus, subjecting youths to punishments explicitly designed to expose the offender to public view and heap ignominy upon him in ways that fines and community service cannot generally undermines the foundations of juvenile justice. This section provides several examples of potentially vulnerable juvenile shaming punishments offers overarching summary conclusions.

1. Blind in One Eye: Vision Obstruction in Prison

In 1996, Zakee Chambers, a fifteen-year-old boy, hurled a rock into the windshield of a passing car, blinding the car's passenger, Andrea Hartmann, in her left eye. The Court sentenced Chambers to one year in the county jail and ordered him to pay restitution of twenty-four thousand dollars over the period of his twenty-nine year probation. The Court also sentenced him to a shaming punishment: during his one-year incarceration, Chambers wore an eye-patch for his waking hours. In handing down her sentence, Judge Cynthia Mackinnon stated the purpose of the shaming sanction: I think it's important for you to understand what this lady has gone through and will continue to go through for the rest of her Chambers apologized and admitted that he had failed to consider the consequences of his actions.

Chambers's shaming punishment was not the sole sanction he received, but its potential to create unacceptable susceptibilities remains unchanged. Because the court only allowed Chambers to remove the eye-patch when he slept, all of his movements throughout the jail were constrained by his ability to see out of only one eye. Thus, the potential for Chambers to bump into something or someone and injury himself, another, or property was increased. Further, the visibility of the eye-patch to everyone who encountered him could serve to advertise his crime, opening up the potential for teasing, retaliation, and other emotional confrontations. The additional shaming sanction of the eye-patch could have created an environment beyond physical discomfort that actually served to enhance the risk of physical and psychological, injury.

2. Shame Around the Neck: Picturing the Victim in a Locket

After a delinquent adjudication for involuntary manslaughter, the Court sentenced to twelve months probation with the conditions that he (1) visit and lay flowers on the victim's grave on the anniversaries of the victim's birth and death, (2) wear a necklace with the victim's picture on it, and (3) not participate in extra-curricular activities at school. On appeal, the court upheld all three conditions as reasonable under the state's statutory scheme, which provided that the court could impose probationary conditions that are related to the needs of the juvenile and . . . reasonably necessary to ensure that the juvenile will lead a law abiding

The dissenting judge criticized the majority for failing to consider the psychological impact of wearing the necklace on a daily basis in light of testimony that J.B. was depressed, withdrawn, learning disabled, and in grief counseling over the incident. The judge further denounced as irrelevant (in light of the state's emphasis on juvenile rehabilitation) the majority's discussion of what conditions it would have ordered if J.B. had been an adult. Although J.B.'s conditions did not mandate how he wore the picture, thus allowing him to wear it hidden from public view in a locket or under his clothing, the court forced J.B. to carry a daily reminder of his cousin's death. The potential psychological impact of this punishment cannot be underestimated, and the sanction directly contravenes the child saving mission of juvenile justice.

3. On the Cusp of Juvenility: The Shaming of Older Teens

Although neither case involved a minor, two other shaming sanctions demonstrate the potential for physical and emotional vulnerability with respect to older teens. In the first case, two nineteen-year-old Ohio residents stole a baby Jesus from a nativity scene and defaced it. Judge Michael Cicconetti, well known for his shaming punishments, ordered the pair to walk through their town with Sidney, a donkey from a local petting zoo, and a sign stating Sorry for the jackass offense. Several hundred local residents watched as the couple led the donkey through snowy streets for approximately thirty minutes. Although the pair's parade allowed them to reduce their time behind bars, Judge Cicconetti had other motives for imposing the punishment: This is a kind of conscience flogging . . . . It is intended to bring them some public The Ohio couple's walk exposed them to traffic, verbal insults and abuse, and violent reactions from the viewing public.

In another case, police busted up a toga party at the University of Massachusetts and charged the host, James Connolly, with underage drinking, noise violations, and other alcohol violations. As part of his punishment, Connolly had to don his toga and stand in front of the police station for an hour. Although Connolly was in a relatively safe environment in front of a police station, he wore nothing but a toga. In both cases, the court's punishment physically exposed young adults to the public and risked the potential for verbal and physical abuse.

4. Judge-Imposed Shaming Punishments May Damage Juveniles Emotionally and Physically

Most Judicially-imposed shaming punishments are often public in nature and can result in physical exposure, thus increasing the risk of physical harm or injury. Emotional or psychological vulnerability is also frequently present, as the punishment is designed to remind the offender of his bad actions and inflict feelings of shame or humiliation. Scholars recognize the stigmatic harm that can result from undesirable exposure in two other areas: strip searches and shackling.

In Safford v. Redding, the Court acknowledged the trauma stemming from a strip search, noting the obvious difference between communal undress for sports and the nakedness resulting from an intrusive body search. While strong documentation supports the trauma of a strip search, the potential stigma resulting from a shaming punishment's exposure is unknown. However, it is reasonable to anticipate similar arguments about the trauma of a shaming punishment. In an amicus brief filed in Redding, the National Association of Social Workers, joined by other interested parties, argued that the trauma resulting from a strip search could actually encourage some of the precise inappropriate behavior that strip searches are suppose to detect and A youth traumatized by a shaming punishment could also act out in inappropriate ways, including substance abuse or further delinquency, or suffer negative mental health effects. Although it would be rare for a shaming punishment to rise to the level of intrusiveness present in a strip search, the physical and emotional vulnerabilities inherent in these sanctions directly contradict the traditional goals of the juvenile justice system and are not supportable under the doctrine of parens patriea.

Scholars also recognize the dangers of emotional and physical harm stemming from shackling. Shackling, however, has more than just pernicious physical and psychological effects; it also affects a juvenile's agency and dignity. Juveniles forced to appear in court shackled suffer embarrassment and humiliation and feel like captive animals. Much like juveniles chained in a courtroom, juveniles subjected to a public shaming punishment may feel like they are on display like animals in the zoo. Furthermore, shackling has no proven deterrent effect, and as one scholar notes, to consider shackling as a punishment potentially deterring other juveniles from committing criminal acts is unconscionable in light of the historical mission of the juvenile court system to provide treatment for juvenile Overall, the negative effects of shackling, like the negative effects of shaming, undermine the values of traditional juvenile justice by blatantly exposing juveniles to significant emotional and psychical discomforts and by treating the youths like criminals, not individuals in need of help.

The negative effects stemming from judicially-imposed shaming punishments, strip searches, and shackling are distinguishable from parent imposed shame punishments. Parents have long enjoyed broad rights to raise their children for societal integration free from governmental intervention, and this includes the right to choose and administer appropriate discipline. Further, a parental shaming punishment is unlikely to expose the child to the physical or emotional danger that public shaming punishments invoke as one might expect that parents do not generally seek to expose their children's indiscretions. Not all parents agree with the extent of shame sanctions, and one might infer that parent-imposed shaming punishments would not implicate the public humiliation and embarrassment of judicially-imposed shaming sanctions. Another distinguishing factor is that under the traditional system of juvenile justice, courts acted in lieu of parents because the court considered all youths victims of inadequate parental care. Thus, a parent who publicly exposed his child would directly contravene parens patriae and the original goals for juvenile protection and rehabilitation.

The doctrine of parens patriae was the basis of a rare appeal of a juvenile's shaming punishment in In re MEB. In MEB, the juvenile was convicted of felony breaking and entering and felony possession of burglary tools, and as a condition of her probation, she was sentenced to wear a sign around her neck stating I AM A JUVENILE CRIMINAL anytime she appeared in public. The youth appealed on two grounds: (1) the trial court abused its discretion because the state statute limited alternative sanctions by requiring the confidentiality of the juvenile's case and (2) the shaming punishment undermined the purposes of the state's juvenile justice system because it treated her as an adult criminal and subjected her to the type of public stigma rejected by parens patriae. The North Carolina Court of Appeals ruled in favor of the juvenile on both grounds. The court found that the statute guaranteed that a juvenile's records would be closed, even though the law also provided an exception for certain individuals to obtain the records, and that by forcing the young girl to wear the sign announcing her crime, the shaming punishment violated her right to confidentiality.

The court also held for MEB on her second argument, although it did not address how the punishment failed to comply with traditional notions of juvenile justice. The state argued that MEB's punishment was permissible because it promoted accountability and responsibility and did not criminalize her acts. The court found that because it was MEB's first offense, she did not qualify for the intense supervision the statute permitted in cases where community supervision was needed to promote offender accountability. The court also rejected the state's argument that MEB did not actually have to wear the sign because she could stay at home; de facto house arrest was impermissible because MEB's crime was statutorily ineligible for house arrest. Finding the juvenile's only alternative to be the public humiliation of wearing the sign, already held a violation of the state's Juvenile Code, the court also ruled that the punishment violated public policy. Although the court never explicitly addressed MEB's claims regarding the foundations and purposes of the juvenile justice system, it acknowledged that public policy supported overturning the youth's shaming sanction.

Public policy may support adult shaming punishments, as evidenced by the Ninth Circuit's reasoning in United States v. Gementera. In upholding an adult's shaming punishment, the Ninth Circuit explicitly articulated the desirability of facilitating the public exposure of defendant's crime and to the victims of his crime as part of the defendant's rehabilitation. Nevertheless, the logic behind exposing adults fails with respect to juveniles. States initially established juvenile justice courts to intervene in a troubled child's life and to rehabilitate the child in effort to make him a productive member of society. Courts did not consider the proceedings criminal, and the goal was not to punish the child, but to restore the child in a holistic fashion. Judicially imposing adult-style shaming punishments on children undermines the doctrine of parens patriae by creating a psychically and emotionally vulnerable situation for the child and by exposing him to society.