Whether it’s by way of charging authority, as under the pre-Booker Sentencing Guidelines, or plea bargaining policy, prosecutors want more than to merely charge a defendant. They want to impose their ideal of justice, leaving as little discretion to the judge to go all soft and mushy as possible. It may not be merely a lack of faith in judges to exact a sufficient punishment, but an exertion of power to prove who’s really in charge.
Via Turley, Bedford County, Pennsylvania, District Attorney Bill Higgins decided a little pre-plea shaming was just the ticket for Evelyn Border, 55 and her daughter, Tina Griekspoor, 35, who were charged with stealing a gift card from a 9 year old girl at her birthday party. Now that’s pretty low, even though it’s unlikely that the amount of the theft would have reached Bernie Madoff proportions.
Border apparently wanted a plea deal that avoided jail. Higgins apparently saw his opportunity. If not jail, what they could he do to exact his pound of flesh? Hey, what about some public humiliation! DA Higgins came up with an idea. If only Border and her daughter were to stand outside the courthouse with a sign, then he would recommend a sentence of probation. And so they did.
Some will see the “punishment” as fitting, serving not only the purpose of personal but general deterrence, as any good public shaming should. But this isn’t punishment, in the sense that it was a sentence imposed by a judge for the offense for which they stood accused. Rather, this is a condition of the prosecutor, imposed by unilateral fiat, in order to receive a sentence of probation.
While it wasn’t outside the realm of possibility that they could have told Higgins to go screw himself, and placed themselves in the hands of the judge for the imposition of sentence despite the prosecutor’s recommendation, Border and Griekspoor wanted as much of a guaranteed sentence as possible, and obviously weren’t too keen on going to jail. (Hint Ladies: This is the sort of thing to think about before stealing.)
Would a judge have imposed a sentence of public shaming and probation? It’s happened, and usually been subject to harsh criticism. There’s a reason why we no longer have stocks in the village square. But Higgins can deflect criticism by claiming that Border and Griekspoor voluntarily agreed to do this, a disingenuous argument for sure but one that might fly if he leaves out the part about jail as the alternative.
The problem here is that a prosecutor used his discretionary authority as a weapon to impose his own brand of justice, in this case public humiliation, in advance of a sentence imposed by a court, It should not be within the prosecutor’s power to ignore the legislative sentencing scheme and superimpose his own brand of justice, outside the system. There’s no appeal from this “sentence” of public humiliation. There’s no choice made by those elected to do so as to whether shaming is the way to teach lessons.
This is one man’s personal vision of how best to teach a lesson, and regardless of how nasty it may be to steal from a 9 year old on her birthday, the choice doesn’t belong to DA Higgins.