Is this cruel and unusual punishment, or is it simply space-awesome? [Updated]


Tod Kelly

Tod is a writer from the Pacific Northwest. He is also serves as Executive Producer and host of both the 7 Deadly Sins Show at Portland's historic Mission Theatre and 7DS: Pants On Fire! at the White Eagle Hotel & Saloon. He is  a regular inactive for Marie Claire International and the Daily Beast, and is currently writing a book on the sudden rise of exorcisms in the United States. Follow him on Twitter.

Related Post Roulette

105 Responses

  1. Avatar Jaybird says:

    One of the points of punishment, so I’ve heard, is to get the offender to quit doing whatever it is.

    If this works to get the guy to quit doing what he did, that’s great… and, you know what? I suspect that this might get him to quit doing what he did in a way that, say, probation or community service would not.Report

  2. Avatar notme says:

    Punish him for his actions not for his beliefs.Report

    • I kind of agree, at least part of the way. I’d say that if I endorsed this punishment, I might not necessarily endorse that he must say he’s “intolerant.” The sign’s wording should probably focus on his actions, and maybe describe what he did in more detail. But it should not focus on his beliefs.

      That’s if I endorse the punishment. And like Tod, I’m not sure I do.Report

      • Avatar Will Truman says:

        I am a bit uncomfortable with the specifics. Namely, that he has to say these things in the first person rather than something more factual rather calling himself names. “I have been convicted of…”, “I am guilty of…”, or “I did…” (as opposed to “I am…”). Generally, there is something oddly discomforting about putting words in his mouth and forcing him to say it (even as part of a plea deal).Report

      • Avatar Kazzy says:

        Good point about the language, @will-truman . Bully is a loaded term, often thrown around entirely too easily. It sounds like this man might have a mental illness or instability of his own. Labeling him a bully — instead of more objectively describing his behavior — takes it to a weird place.

        “I shoplifted from this store” rings differently than “I’m a thief”.Report

      • Avatar Will Truman says:

        @kazzy Not just calling him a bully, but requiring that he call himself one.Report

      • Avatar Marchmaine says:

        The article says:
        “Court records show Aviv pleaded no contest in February to a misdemeanor disorderly conduct charge…
        The judge also ordered Aviv to serve 15 days in jail and to undergo anger management classes and counseling. He also had to submit an apology letter to Prugh.”

        Similar to Will, I guess I’m more concerned with the words than the sign. Was he convicted of intolerance? Or of not having “sufficient appreciation” of diversity of his South Euclid community? Is no one concerned with the word sufficient? Are all of us not merely appreciative of diversity, but sufficiently appreciative? Those seem to be secondary inferences and may or may not be true.

        It would seem that a sign required by the magistrate should only reflect that of which he was convicted:

        I was convicted of a misdemeanor disorderly conduct charge for
        1. Smearing feces on my neighbor’s car.
        2. Calling my neighbor’s adopted children an ethnic slur.
        3. Rigging a fan to blow the smell from my neighbor’s dryer back on their property.
        4. [Whatever else I had done to warrant a misdemeanor disorderly conduct conviction]

        Those should be sufficient to demonstrate his odious (and criminal) behavior; and possibly cause him to take stock (so to speak) of his behavior and hopefully remedy that.

        Would you be as cool with it if a different judge had noticed that he had seriously transgressed the 8th commandment and required him to wear a sign that said that? It seems to me the sign is a reflection of the judge, not the crime – and that, to me, is problematic.

        Whether this is effective punishment, I’m agnostic… it can hardly be worse than our horrible incarceration approach – which, it seems, he also will enjoy.Report

      • Avatar Marchmaine says:

        Oops… scratch the part about sufficient… I misread; not exactly sure how…but I did.Report

      • Avatar Kim says:

        guy ought to have more than a misdemeanor for throwing dogshit around.Report

      • Avatar Marchmaine says:

        Well, then, that might be a +1 for making people wear signs… passers by might be concerned that shit throwing is only a misdemeanor and demand tougher laws.Report

      • Avatar Kim says:

        I’m pretty sure biological terrorism is already on the books.
        (Deliberately introducing toxic chemicals into your neighbors’ airspace ought to also be more than a misdemeanor).Report

      • Avatar Marchmaine says:

        Then yet another +1 for the sign wearing to show prosecutorial restraint in *not* prosecuting the guy as a biological terrorist.Report

      • Avatar J@m3z Aitch says:

        Then yet another +1 for the sign wearing to show prosecutorial restraint in *not* prosecuting the guy as a biological terrorist.

        A wholehearted amen to this.Report

      • Avatar Glyph says:

        Put me down with those who don’t necessarily have a problem with the sign itself, but feel that it should more dispassionately/factually describe his transgressions, rather than making “moral” judgements on him and his mindset, and putting the words of those judgements in the mouth of the transgressor.

        Not only is that problematic in and of itself, I think it is likely to be counterproductive, because it is using terms that are perceived to be a little politically-loaded (“intolerant/appreciation/diverse”) that might make some people who otherwise might look at this guy and think “Christ, what an a-hole, he picks on KIDS?!”, instead be somewhat sympathetic to his shaming at the hands of the Portland Sharia Squad (sorry, couldn’t resist) and see it as an overreaction (instead of what it is in my mind – guy got off easy, compared to fines or prison).

        It risks making him into some perceived PC-victim/free-speech hero, instead of just a dick. Granted that to some subset of people this will be true anyway, but appearing to semantically stack the deck against him instead of just telling it like it is, dispassionately/neutrally, and letting people draw their own conclusions, seems unlikely to get the most-desirable results (he cuts it out, and a maximal number of other people learn from his example).Report

      • Avatar Stillwater says:

        It risks making him into some perceived PC-victim/free-speech hero, instead of just a dick.

        Our culture wars in a nutshell. What one person views as dickish behavior another will view as Rugged Individualism. The folks who are against dickish behavior are the REAL dicks in this story.Report

    • Avatar Kim says:

      Yeah. He’s committing acts of biological terrorism. Put him up on those charges.Report

  3. I’m not sure where I stand, but here are a few thoughts:

    1. It’s probably “unusual” in the sense that it’s not a punishment prescribed by common practice or by statutes. At least, I suspect it is not. And I’m no expert on the “cruel and unusual” jurisprudence, but I do suspect that “unusual” can mean punishment not settled on beforehand. If the law–understood as statute law and common practice–stipulates that the types of behavior implicit in the bullying this man did (behavior that seems to include vandalism and assault and probably other things) include, say, jail time or fines but not carrying a sign, then I imagine it might be “unusual.”

    2. Jaybird’s point is a good one.

    3. It’s a shaming tactic. And while shaming can be bad and has bad associations (scarlet letter punishment, etc.), one advantage is that it seems to end with the shaming. Or that appears to be the case here. I don’t know if that makes it right or wrong. But that’s something to consider.Report

  4. Avatar Road Scholar says:

    Yeah, I caught this on the radio. It’s cheap and likely to be effective (although I wouldn’t allow him to hide his eyes behind shades). I think we under-value the role of public shame in modifying undesirable behavior.

    Long ago in my misspent youth I got caught shop-lifting. The $50 fine stung my limited resources, but what really hurt was having Mom read about it in the weekly “police blotter” section of the local rag. Small towns have their own way of dealing with this sort of thing.Report

  5. Avatar Will Truman says:

    This sort of thing is old hat in the south. It’s a good way for a judge to get publicity. A judge in Texas became a congressman thanks to the Oprah Winfrey Show and the publicity he got for doing this sort of thing.Report

  6. Avatar zic says:

    I’m reminded of The Scarlet Letter.

    It invokes social opprobrium. But I’m not sure it’s any more effective then a really well-designed community service sentence, and it doesn’t do a damned thing to improve the greater community.

    There’s some element of sociopathy in acts like Mr. Aviv’s; and the more crowded the community, the more difficult these mental deficiencies are to deal with. There’s a reason extreme sociopaths often become hermits.Report

  7. Avatar Creon Critic says:

    Yes this is cruel and unusual punishment and to my mind impermissibly so. In US State Department human rights country reports, Section 1 is “Respect for the Integrity of the Person, Including Freedom From:” then “c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment” (matching up with UDHR text and the full name of the Convention Against Torture). Several countries are dinged for using public humiliation as a tactic (e.g. Nigeria and India). So it isn’t especially heartening to see these methods in use in the US. As a society, we can design routes beyond, essentially, the stocks to achieve justice. Perhaps we’re given extra impetus to do so by putting these types of public humiliation oriented methods off limits.Report

    • Avatar J@m3z Aitch says:

      I don’t see it as cruel. And to be blunt, I think any punishment could be defined as disrespecting the integrity of the human, and being degrading.

      I think there is a role for public shaming. Realizing one’s acts aren’t wholly private can have a positive effect on behavior.Report

      • Avatar Creon Critic says:

        I think any punishment could be defined as disrespecting the integrity of the human, and being degrading.

        Would you call restorative justice approaches degrading? Here are two examples (via wikipedia):

        Victim-offender mediation… is usually a meeting, in the presence of a trained mediator, between victim and offender….

        A community restorative board… Victims meet with the board and offender, or submit a written statement which is shared with the offender and the board. Board members discuss the nature and impact of the offense with the offender.


      • Avatar J@m3z Aitch says:

        I think it sounds sweet. Ought to work great at changing a sociopath’s behavior.Report

      • Avatar J@m3z Aitch says:

        Ok, a more fair response. I think it could be very uncomfortable and personally humiliating to have to attend mediation in a case where you have already been defined as the guilty party, and can expect the context of the mediation to be how you’re an asshole and the victim is blameless.

        Further, I think the quest to take the personal sting, the indignity, out of punishment is deeply misguided. I think it’s one of the areas where liberals have gone badly wrong. It’s not that I favor cruel punishments, but I think calling this cruel weakens the term to the point of near meaningless. He’s not been locked in a hotbox, he’s not been tortured, he’s not been deprived of all human contact. This just makes him uncomfortably aware that his actions are socially unacceptable.Report

      • Avatar Creon Critic says:

        Do we care about the well-being of the sociopath? Do sociopaths also have human rights? Are sociopaths also entitled to dignity? Can we target sociopaths for unusual treatment for the advancement of a political career, to make a splash in the press, or for electoral gain (I don’t know whether the judge in this instance is elected, but speaking generally), or basically use them as exemplars pour encourager les autres?

        If someone is actually diagnosed with a mental disorder, isn’t it reasonable to advance some sort of mental health treatment as the appropriate course? I don’t see why lock them away and throw away the key (the status quo in the US at present) has much to recommend it.

        In a country with 5% of the world’s population and 25% of the world’s prison population, we really ought to reflect on the demerits of our current system. That includes the war on drugs, the imprisonment of non-violent offenders, but also the punitive nature of our system. Yes the well-being of the victim matters, and so too does the well-being of the community. But, we ought to also take into consideration, more than the US has thus far, the well-being of the offender.Report

      • Avatar Creon Critic says:

        I think society is more endangered when (penal system) cruelty is defined down rather than up, when cruelty is underinclusive rather than overinclusive. That is, there’s a lot that deserves a critical look, even if it doesn’t fall into cruel and merely falls into degrading. For instance, perp walks in the US are a highly questionable practice to me, and I’m glad the US seems to be catching up in taking bullying more seriously.

        Also, I recall comments of yours about mercy, forgiveness, and a particularly strenuous defense of the importance of civil liberties (in part, by way of a strong critique of Obama’s record). I don’t see how they reconcile with boxing cruelty in as you have or characterizing the liberal outlook as, “ the quest to take the personal sting, the indignity, out of punishment is deeply misguided”. I’d have thought the more reconciliation-oriented outlook of restorative justice would fit better with the forgiveness/mercy/civil liberties considerations you had advanced.Report

      • Avatar Mo says:

        @creon-critic Both of those methods are the first steps, not the final steps, of the criminal’s punishment. Yes they get a say, but I imagine Aviv got a choice between sign and county lockup.Report

    • Avatar Mo says:

      The bad part of the stocks wasn’t the humiliation aspect, it was the physical cruelty, exposure to the elements and the fact that people were encouraged to fish with the person in the stocks. Holding up a sign for 5 hours on a clear and warm day is more dignified than 30 days in a cage.Report

  8. Avatar Kazzy says:

    This isn’t new. I’ve seen stories of youth offenders often being subjected to such punishments. I understand they’re usually offered as an option in lieu of jail time or a similar such detention. I’m not sure where I stand on them, but this seems like useful information.Report

  9. Avatar LeeEsq says:

    I’m not really cool with this. Its too much like the stocks and other forms of public shaming, which are cruel and unusual punishment. Mr. Aviv probably doesn’t belong in jail but he should receive fines or community service as punishment.Report

    • Avatar Brandon Berg says:

      This is nothing like the stocks. What made the stocks cruel is not the public humiliation aspect, but the severe abuse to which the convicts were subjected by the public, which was occasionally so severe as to prove fatal. There’s no reason to believe that the eight amendment was intended to prohibit public humiliation as such, especially since it was in wide use at the time and remained so for decades thereafter.Report

      • Avatar zic says:

        I agree.

        Having spent an afternoon in the stocks (a job, first-person interpreter for a living museum, hired to work a renaissance fair) it’s painful position to hold for any length of time.Report

  10. Avatar Mike Schilling says:

    Once again “diverse” is just a code word for liberal intolerance. Instead of being punished, the guy should be awarded an honorary degree.Report

  11. Avatar Saul DeGraw says:

    I’ve heard of this happening for shoplifters and petty thieves. This American Life ran a story about it once.

    Is it cruel and unusual based on Constitutional standards? Maybe but no one is going to contest it because it (probably) largely beats 60-90 days in county jail. It isn’t historically unusual, shame is a traditional method society has used to prevent/deter crime especially for really low-level stuff like shoplifting. Is it cruel? Maybe but it still seems better than jail to most people probably.

    It is certainly better than a person being put in the stocks. People are not allowed to throw things at Mr. Aviv.

    Though I can see how it makes people uncomfortable.Report

    • Avatar LeeEsq says:

      Its better than jail time but I’d argue that any punishment designed to cause shame and bring attention to the person receiving the punishment constitutes cruel and unusual punishment. Non-jail punishments should take the form of monetary fines or community service like clean litter in park or something like that.Report

      • Avatar Jaybird says:

        Cleaning litter? What about the dignity of the criminal?Report

      • Avatar LeeEsq says:

        The thing with community service is that as far as I know there is nothing to identify the criminal as a criminal or at least to identify what the person did wrong. With this, the evidence of wrong doing is public but I suppose in a small community everybody knows what you did anyway.Report

      • Avatar J@m3z Aitch says:

        The thing with community service is that as far as I know there is nothing to identify the criminal as a criminal

        Wearing an orange vest while picking up trash on the roadside and being guarded by an armed police officer seems like a pretty clear identification to me.Report

      • Avatar Brandon Berg says:

        Its better than jail time but I’d argue that any punishment designed to cause shame and bring attention to the person receiving the punishment constitutes cruel and unusual punishment.

        Why? If someone violates the law in a way that harms other people, why shouldn’t he be publicly shamed for it?Report

      • Avatar zic says:

        @jm3z-aitch I think that’s considered a type of work program, not community service. The prisoners are hired out on contract with the prison and the contracting agency, and the prisoners paid, though nothing near minimum wage. (My impression; I could be wrong, and it will vary by state.)Report

      • Avatar J@m3z Aitch says:


        In some states its used as punishment for drunk driving.

        Remember, criminal law is overwhelmingly state law, and there are 50 states. Only in rare cases can we ever make a blanket statement about laws at that level.Report

  12. Avatar Road Scholar says:

    I truly don’t understand all the hand-wringing over whether this is “cruel and unusual.” He’s a cruel and unusual bastard. A racist piece of filth that taunts the disabled and smears dog shit on his neighbors property. Dignity doesn’t appear to be a central component of his identity.

    His neighbor on the other hand, sounds like an earth-bound angel. Adopting the least desirable and providing a home for life.

    He’s getting off way too easy, IMO, and the judge crafted a remedy to an offense so unthinkable that no law existed to address the crime.Report

    • Avatar Jaybird says:

      I am one of the board’s resident “bad people” and, lemme tell ya, in *MY* circle, “cruel and unusual” means stuff a hell of a lot closer to “torture” and not “made to feel bad because of what they did got made public”.

      Good people have evolved to the point where they are no longer comprehensible to me.Report

      • Avatar Creon Critic says:

        I would not have thought libertarians would require an extensive explanation as to the dangers of defining cruel and unusual too narrowly. I can’t say that it is comprehensible to me that the state regulating 32 ounce sodas is an affront to liberty, while the state using public humiliation in the penal system is somehow unproblematic.

        “Cruel and unusual bastard”s and “racist pieces of filth” getting what they’ve got coming to them is certainly one outlook a penal system can have. I’d just suggest that the US justice system doesn’t currently want for vengefulness, or bloodlust for that matter (it was only relatively recently that we ceased executing people for crimes committed when they were ages 16 and 17).Report

      • Avatar Jaybird says:

        Neither did I! But then I had it explained to me that this was an example of cruel and unusual.

        it was only relatively recently that we ceased executing people for crimes committed when they were ages 16 and 17

        On a scale of 1 to 10, where 10 is “executing people for crimes committed when they were ages 16 and 17”, how “cruel and unusual” is this?

        (My answer is that it doesn’t even achieve a 2, which puts it as “better than jail/prison” and even gets a bonus point for perhaps resulting in the bad behavior being put to an end.)Report

      • Avatar Creon Critic says:

        I’d brought up that the Convention Against Torture’s full name is “the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment” specifically to point away from the narrowing that a focus on “cruel and unusual” yields. Some really bad things happen when you allow the state to play in the gray zone there – again, not something I’d have thought I’d be pointing out to people sympathetic to libertarian outlooks.

        There’s a bigger range of things to be identified as problematic beyond a narrowly construed “cruel and unusual”, from my point of view. In fact, the higher bar I advocate helps prevent edging closer to the gray zones that the lower bar allows – and that the lower bar more readily allows Torture Memo stuff to be waived through. The higher bar says, well you clearly can’t do that so-called enhanced interrogation stuff which Bybee and Yoo propose to approve, as well as this rather sketchy public humiliation stuff as well. I mean, the US comments on it in its human rights reports on other countries, clearly it set off someone’s potential human rights violation alarms (beyond mine).Report

      • Avatar J@m3z Aitch says:

        I would not have thought libertarians would require an extensive explanation as to the dangers of defining cruel and unusual too narrowly.

        “Too narrowly,” is a concept on whose precise definition reasonable oeople can reasknably differ. But you also misunderstand libertarianism, I think. For libertarians, theft is anathema to the principles of personal autonomy and not harming others. It is one of the very few justifications for government. So harsh punishments for actual crimes are not essentially anti-libertarian, this is especially true when you consider the possible penalty in an anarchic system, being killed by those you’ve wronged.

        Obviously, being distrustful of the power given to government, libertarians must find a balance between allowing severe punishments and constraining the government from being cuel and unusual. Nothing, however, logically compels them to land where you do.

        I can’t say that it is comprehensible to me that the state regulating 32 ounce sodas is an affront to liberty, while the state using public humiliation in the penal system is somehow unproblematic.

        That’s not a good comparison. One of these people has done real harm to othets, and one has not. Is it really a surprise that I’m more concerned about the liberty of the non-criminal than that of the criminal?Report

      • Avatar Creon Critic says:

        I’d imagined that libertarianism was concerned about everyone’s liberty interests, offenders included. So an emphasis on proportionality would follow, and that Amnesty’s Fair Trial Manual’s emphasis on impositions insofar as they are necessary for the circumstances of imprisonment would ring particularly true to libertarians. I stand corrected.

        (I’d mentioned the Fair Trial Manual in the other thread, prisons, p. 179, link )Report

      • Avatar Creon Critic says:

        Just to be more specific since I brought it up twice now, some examples of coverage of public humiliation in State’s country reports.

        Nigeria 2013, “Police commonly used a technique called “parading” of arrestees. Parading involved literally walking arrestees through public spaces, subjecting them to public ridicule and abuse. Bystanders often hurled taunts, food, and other objects. Police defended this practice with the argument that public humiliation helped deter crime.”

        India 2008, “According to media reports, the police in Rajkot, Gujarat, employed public humiliation as a tool to shame and punish certain accused persons. For instance, in September police forced 12 youths accused of vandalism to perform situps in public. In October the police forced a 61-year-old accused of raping his daughter-in-law to crawl on hands and knees through a crowded market place. Media reports indicate that the police, although aware that such treatment was a breach of the rights of the accused, viewed public humiliation as an effective crime deterrent.”

        Pakistan, 2001 “Common torture methods include: beating; burning with cigarettes; whipping the soles of the feet; sexual assault; prolonged isolation; electric shock; denial of food or sleep; hanging upside down; forced spreading of the legs with bar fetters; and public humiliation.Report

      • Avatar Jaybird says:

        Creon, please dig:

        I care about stuff like “the war on drugs” and I wonder if we, as a society, wouldn’t be better off without prisons entirely. Why? Because prisons have a lot of baked in assumptions such as “we can hold you in a room for 20 years” which I’m not sure I’m on board with.

        This is usually where people tend to call me crazy. I’m okay with that.

        As such, my craziness is such that I see something like this and I ask myself the question (THAT I ALSO ASKED YOU, BY THE WAY): On a scale of 1 to 10, where 10 is “executing people for crimes committed when they were ages 16 and 17?, how “cruel and unusual” is this?

        As I said, holding a sign doesn’t even register a 2.

        I’m also confused by seeing this guy holding a sign as a topic worthy of bringing Amnesty International into. My intuition is to say “Amnesty International Has Bigger Fish To Fry”.

        And if it turns out that there are no bigger fish to fry? Hurray. The utopia got here so quietly that I didn’t even notice.Report

      • Avatar Brandon Berg says:

        Rights are reciprocal. If you want others to respect your rights, you need to respect theirs.Report

      • Avatar Creon Critic says:

        To be clear, I’m invoking Amnesty inasmuch as they’ve published (recently, April 9, 2014) a well sourced writeup of existing standards, guidelines, principles, as enunciated by General Assembly resolutions, human rights conventions, special rapporteurs, human rights bodies, etc. It is an outlook on how to treat offenders and conditions of imprisonment that I find particularly compelling – and that helpful on shedding light on a broad range of circumstances. Circumstances that include looking at how the US penal system works.

        The fact of grave human rights abuses doesn’t mean that other potentially human rights violative situations ought to get a pass, get ignored, or get short shrift in analysis. The particular fish we’re frying is the instance brought up in the original post. Were the original post on North Korea or Syria, then I’d be bringing up points related to that discussion – the topic at hand from the original post was, examine/assess this particular instance in the US. Why shouldn’t I invoke the Amnesty’s Fair Trial Manual as a point of reference in examining this instance?

        Yeah, I saw your 1-10 scale question and attempted to point out why I saw the framing as flawed. To me omitting “Other… Inhuman or Degrading Treatment or Punishment” excludes something significant that we ought to also take into consideration. The scale you present has no place for those as far as I could tell, and instead focuses on cruel and unusual. So yes, you’re correct, using your scale public humiliation may not rank very high compared to executing people for crimes committed when aged 16 and 17. If that’s decisive for you, fair enough. I’d still suggest you don’t always have to look at highest reading on a scale to identify a practice as problematic.Report

      • Avatar Brandon Berg says:

        Citing Amnesty International has zero persuasive value. You either agree with their position on a particular issue, or you don’t. Nobody actually considers them an authority in the sense that he will change his mind on an issue because Amnesty International said so.Report

      • Avatar Creon Critic says:

        Maybe I should have made this clearer. I’m not saying “because Amnesty International said so”. I’m saying, they’ve produced a useful reference book. They’ve presented citations to specific texts that will orient you as to the current status of the standards they outline. With hyperlinks! So when they refer to a Human Rights Council special rapporteur’s report on “The Question of the Human Rights of All Persons Subjected to Any Form of Detention or Imprisonment” you can follow the link to the text of the report itself. The Fair Trial Manual is not free of Amnesty’s opinion, so the death penalty section explicitly says upfront what the organization’s particular position is – but then promptly goes beyond that to what the authoritative international bodies have said about the topic. To me, it is comparable to a case book or a literature review on the topic from an international human rights regime angle. That’s why it is relevant to this discussion.Report

      • Avatar J@m3z Aitch says:


        I’d imagined that libertarianism was concerned about everyone’s liberty interests, offenders included.

        If you’d go back and re-read what I wrote, it’s clear that they are. That’s why I emphasized that there’s a balancing act for libertarians between punishment and liberty. Because as Brandon noted, if you want liberty you have to respect others’ liberty. Libertarianism is not about the liberty to rape, rob and murder without having to face unpleasant consequences.

        So an emphasis on proportionality would follow,

        It does. Just because you define the proportions differently does not mean libertarians don’t. Do you think libertarians are indifferent to the concept of torturing someone to death for stealing a car without physically harming anyone? You may not like our proportions, but that’s a far cry from saying we aren’t concerned about proportionality.

        and that Amnesty’s Fair Trial Manual’s emphasis on impositions insofar as they are necessary for the circumstances of imprisonment would ring particularly true to libertarians.

        It’s not irrelevant, but you keep assuming that others must adhere to your standards or they’re violating they’re own standards. That’s incoherent. And you are implicilty treating things like the UNDHR and Amnesty’s manual as objective truths that must be agreed to. They are values-based and hortatory. And good on that–I approve of their emphasis on rights, even though I don’t fully agree with them. They’re not holy scripture for me.

        I stand corrected.
        No, I don’t think you do. To be corrected would be to understand libertarians’ understanding of their position. You’ve just effectively claimed that libertarians have no concern for the rights of criminal, which is very far from being correct.Report

      • Avatar J@m3z Aitch says:

        authoritative international bodies

        Their authoritativeness is itself is open to dispute.

        I don’t mean that snarkily, but as an objectively true statement, and as one of the roots of the broad disconnect between you and between folks like Brandon and me (daring to speak for Brandon there).

        I’m not saying international bodies are meaningless or dismissing them at all. I could go on at length about how useful and valuable they can be. But “authoritative” is–from a pure political science point of view–a debatable appellation.Report

      • Avatar zic says:

        @jm3z-aitch I’m a bit confused.

        My understanding is that Amnesty International is well respected for tracking international incarceration and treatment of prison populations; so on that front, I would say they are well respected.

        What gets cloudy is that they also do their work with a clear moral declaration of rights, and they frequently criticize states for abuses of those rights; so politically, they’re not a ‘respected’ organization because of that criticism.

        But I think they are considered an authority when it comes to data.Report

      • Avatar J@m3z Aitch says:

        Well-respected is not the same thing as authoritative. Authoritative smacks of having legitimate authority to declare something that is essentially binding on others. “Legitimate” is a rather disputed term–that is, what constitutes legitimacy, and how can we know when an institution claiming legitimacy really has it? But one strong line of thought is that legitimacy comes from below (or to some extent among states, horizontally, from other states on the same plan). Claiming it doesn’t make it so, but being granted it by others makes it so.

        Do some people see Amnesty as authoritative? Sure, some do. Does everyone, at least for all aspects of their actions? I think objectively we can say that, no, not everyone does. Does Amnesty claim the authority to bind others actions? No, they’re advocacy.

        Do people see their treatment of data as a fairly authoritative statement about the data? I doubt all do, even if they should. But even if they should, that doesn’t mean everyone is bound, or even likely, to view them as authoritative concerning the values statements of the data’s significance. (E.g., we can all agree with organizations’ unanimity on the data-point called “Texas’ frequency of execution.” But obviously the values attached to that will vary from person to person.)Report

    • Avatar Kim says:

      Biological terrorism exists. He should have been tried on it.
      If that means we hang him, we hang him high.Report

  13. Avatar North says:

    Hmmm… I don’t love the wording on the sign.

    That said, if this man was offered a choice between this sign thing or doing some amount of jail time and elected to do the former (which my feeble googling suggests is the case) then my concerns evaporate. All indications I can find is this punishment was chosen by Aviv in lieu of conventional punishment.

    With that established to my mind I do not consider this cruel and unusual punishment. Unusual, perhaps, but cruel? No.Report

  14. Avatar Brandon Berg says:

    I’d like to see serious research into things like this and other forms of public humiliation, rather than having stuff like this done on a one-off basis. Under certain circumstances, at least, public humiliation may be a cost-effective way of reducing recidivism for nonviolent crimes. If so, this strikes me as an all-around win. The taxpayers save money, prison space can be conserved for more dangerous criminals, and I know I’d prefer it if I were a defendant. But without controlled studies, there’s no real way of knowing.Report

    • Avatar Kim says:

      yeah, when the crimes aren’t violent.
      I don’t consider what this guy did to be non-violent.
      (whether or not he was deliberately trying to poison people).Report

  15. Avatar Kim says:

    this has come up before. I wonder, do we care more if it’s the government giving out such terms of service? Do we care more if it’s not a banker being publically humiliated?

    This is a bit different, mind, in that here he has to explain why he’s there. Is it worse to have someone beg than hold a sign?Report

  16. Avatar Michael Drew says:

    If this were standard, I’d have no problem with it. And if it was offered as an option, I have no problem with it. But to the extent this is non-optional, nonstandard, “creative” punishment devised on a case-individual basis by the judge (which I think is not to any extent at all because I think this was offered as an option to standard punishment), then to me this (or that) kind of creative freelancing by sentencing judges is exactly what the “unusual” part of “cruel and unusual” ought to proscribe. Maybe I’m wrong that that’s what it proscribes, but I want a primary target of the Eighth Amendment to be judges getting creative with sentencing. If we want a wider range of punishments for crimes we can write them into law.Report

    • Avatar J@m3z Aitch says:


      Take this with a grain of salt, because it’s been close on to 20 years now, but I seem to remember learning in my con law and English common law courses that “cruel and unusual” is something of a term of art. The words aren’t (in traditional understanding) really separable, and the term “unusual” had a touch of the concept of bizarre, or perverse, about it, rather than just meaning uncommon.

      Now, whether we must hold to traditional understandings (assuming my memory of that is even correct), is a whole different issue for debate altogether.Report

      • Avatar Michael Drew says:

        From what I’ve read that’s right, but from what I’ve read that doesn’t definitively govern the current active interpretation in American Eight Amendment law, but is instead just an argument for how that interpretation should change. (Or perhaps not change? – as my comment indicated, I’m not totally clear on where the American jurisprudence currently stands. But I don’t really care what ECL term-of-art meaning would have been; the meaning I described is (one of) the meanings I’d like this particular American law to have.)Report

      • Avatar Michael Drew says:

        …Also, I can certainly see an argument that this kind of thing is bizarre enough to run afoul of that in the context of a view that thinks punishments should be fairly standardized in terms of method of punishment (I’m not against judicial discretion in applying standardized punishment methods) – the reason for such a preference being a desire to prevent the kind of creativity that leads to CruelAndUnusualPushmentsTM from coming to be widespread in sentencing.

        The reason creativity like this has been limited to cases like this and has not spread into widespread crueltyandunusualness, I suspect, is because judges have generally taken themselves to be constrained against employing creativity in sentencing. And they perceived such a restrain, I have the impression, because that is largely how the Eighth Amendment has been interpreted in American law, regardless of what the ECL meaning of the phrase has been. But again, I’m not totally clear on the exact contours of 8A jurisprudence (though I’ve read about it a bit), so I’m open to correction on that.Report

  17. Avatar Tod Kelly says:

    So I’d like to pose a follow up question to everyone, since it seems to be consensus that there’s no real issue with the what the judge did.

    In the OP, I described Aviv in this way:

    And it certainly appears that some kind of punishment was warranted, as the guy might well be the biggest a-hole in all of Ohio, if the not the entire midwest.

    Suppose I had instead written this:

    And it certainly appears that some kind of intervention was warranted, as it’s pretty clear that Aviv suffers from some type of extreme mental illness.

    Would we be thinking about this differently?Report

    • Avatar Kazzy says:

      I immediately thought that he sounded like he might have a mental illness, something I mentioned in my comment to Will. It should change how we think about it, but the conclusion might be the same. This might be out of bounds regardless of the individual’s mental state.Report

    • Avatar zic says:

      I suggested he was a sociopath, which is considered a form of mental illness.

      My suspicion is that sociopathy may be akin to sexual orientation; an innate thing, and I don’t know of any evidence that we can change innate things. As the victim of a pedophile, I hope I’m wrong.

      But a lot of people in jail aren’t sociopaths, they have other mental illnesses which can be treated, and they are in jail because they (or their loved ones) were unable to access care for them.Report

      • Avatar zic says:

        And when it comes to treatment, sociopaths respond to incentives, not punishment. I’m trying to determine if this punishment embodies an incentive beyond not having to stand on the side of the road holding and being ridiculed.Report

      • Avatar Kazzy says:

        I’d be surprised if any mental illness genuinely responded to shaming behavior.Report

      • Avatar Jaybird says:

        Is the point to stop bad behavior or to make people be better in the first place?

        Personally, I find the former to be a “well, *DUH*” answer and the latter to be terrifying. But that’s me.Report

      • Avatar Saul DeGraw says:

        I think sociopath and psychopath get thrown about too much in internet diagnosis.Report

      • Avatar Kim says:

        aye, sociopathy is an empathy deficiency (or to be more precise, not caring whether your effects on the next person are good or bad.)
        That said, a good deal of sociopaths are quite intelligent — and there are jobs in this world where they do quite well, and sometimes better than the rest of us (Multinational CEOs, yes? What price do you put on someone’s death? Does it really depend on how old they are?).Report

      • Avatar Chris says:

        There is I think sociopath and psychopath get thrown about too much in internet diagnosis.

        Fixed that for ya.Report

      • Avatar zic says:


        I do agree.

        Flip side is too much credit for will, ending in prison instead of treatment. So discussion is necessary, and will veer to too much diagnosis on the internets.Report

      • Avatar Stillwater says:

        Is the point to stop bad behavior or to make people be better in the first place?

        Personally, I find the former to be a “well, *DUH*” answer and the latter to be terrifying. But that’s me.

        Well, the concept of punishment seems to include both of those aspects, so I don’t know why you should be terrified by recognizing something pretty basic. I mean, the idea of fining individuals for traffic violations is based on the idea (cynicism about cops and revenue streams aside) that a system of fines will a) change the future behavior of individuals who’ve violated traffic laws and b) change the behavior of individuals who haven’t but otherwise might violate those laws.

        Whether fines are sufficient to achieve those goals or whether or not those goals are desirable in any event are separate issues.Report

      • Avatar Kim says:

        remote analysis of someone will always be a problem, even if you have terribly good surveillance on them. Still, learning how to press people’s buttons seems to be something that the internet (4chan) is pretty good at.

        So I don’t think that we’re doing too much internet analysis of people — perhaps, in fact, we’re doing too little.Report

      • Avatar Jaybird says:

        I don’t know why you should be terrified by recognizing something pretty basic.

        I’m a big fan of the limits of jurisdiction. “My actions” seems to be a lot more easily defended as something the state has the right to change rather than “my thoughts”.Report

      • Avatar Stillwater says:

        “My actions” seems to be a lot more easily defended as something the state has the right to change rather than “my thoughts”.

        How do we establish that distinction? Take the example of fines for traffic violations – is the state trying to get you to change your thoughts about appropriate driving behavior? Presumably the inescapable answer for someone inclined to think this way is “yes, it is” since the purpose of those laws are to constrain your actions to only those deemed “appropriate”. Same with laws against murder and theft and whatnot. Those laws are a not-so-subtle form of indoctrination, yeah? At least for people inclined to view things that way.Report

      • Avatar Stillwater says:

        So I don’t think that we’re doing too much internet analysis of people — perhaps, in fact, we’re doing too little.

        This makes absolutely no sense, kim.Report

      • Avatar Jaybird says:

        Same with laws against murder and theft and whatnot. Those laws are a not-so-subtle form of indoctrination, yeah? At least for people inclined to view things that way.

        Periodically, I run across some study that explains that Conservativism is a mental illness. Or Libertarianism is a mental illness.

        These things make me somewhat wary about giving the state the power to cure mental illness when it finds it.Report

      • Avatar Chris says:

        zic, no need to convince me that mental illness is one of the areas where our society and our health care system fail, and fail miserably. And we should be discussing it, often and loudly. And there’s a good chance that this dude has some mental illness issues, just going on statistics alone, though his behavior, over such an extended period of time (the article says 15 years… 15 years?!), certainly back that up. And I’m cool with us talking about the relationship between mental illness, the criminal justice system, and punishment, and speaking hypothetically about this dude. But I don’t think we need to diagnose him to do that. I mean, we could, just on what we know, probably go through the DSM and find a few dozen potential diagnoses, many of which we would need to handle differently if our goal is to change behavior, but none of which could we apply to this situation with any degree of certainty.

        You know the quip about how everyone who diagnoses their physical illness online ends up thinking they have cancer? Everyone who diagnoses their own or other people’s mental illnesses online ends up thinking they are bipolar, a sociopath, or on the spectrum.Report

      • Avatar Stillwater says:

        Classic, Jaybird.

        I should know better by now.Report

      • Avatar Chris says:

        @Kim, did you ever see my comment about the 5 minute rule? I promise, I pinky swear, that if you observe it, you will get infinitely more traction on this site than you currently do.Report

      • Avatar Jaybird says:

        Well, then, let’s go back to behaviors. Let’s say that we have a thief.

        What’s the goal? For me, it’s to make sure that the thief doesn’t steal. Hey, so long as he isn’t stealing, I don’t care what he thinks.

        Now, he may spend his days daydreaming about stealing, or haunted by thoughts/temptations to steal, but I don’t see that as The State’s business. Why would it be? It doesn’t matter what he thinks about.

        All that matters is whether or not he steals. As a matter of fact, if he successfully doesn’t steal, we get to no longer think of him as a thief.

        And I don’t see why we want to go further than that for, to use your examples, traffic violations or murder. Because, I guarantee you, I can come up with at least one example of something that you don’t think should be illegal that is (or was until recently) and the very idea that we should change the way that people thought about this sort of thing made the criminalization of the thing itself pale in comparison to the wrong that was done by trying to make people be better. I can probably come up with more than one example.Report

      • Avatar Kim says:

        You seem to assume that with a 5 minute rule that I’d say something different. or not say anything at all. I assume that I might phrase things more deftly (a lagniappe, sure), but that I’d probably say the same things.

        And the anecdotes that I’m exercising discretion about repeating aren’t going to see the light of day, no matter what.Report

      • Avatar Tod Kelly says:

        I think, JB, that you’re describing a person who doesn’t suffer from mental illness and explaining why you are against thought crimes. That’s a different animal.

        Crimes due to mental illnesses are a very real thing, and treating people with mental illnesses is also a real thing — and it has nothing to do with bloggers saying Conservatism/Liberalism is a Mental Illness. (That’s a usually just a joke to fit on a bumper sticker, albeit a really unfunny one.)

        When we talk about mental illness being the cause of a crime, we’re more often than not talking about people who are anti-social to a pretty dangerous degree — and not because we’re afraid they’ll commit thought crimes.

        Now, if you don’t like prisons that’s cool. And if you don’t like treating people for mental illness (or perhaps you don’t believe that’s an actual thing?) then that’s cool too. But it does beg the question, if you don’t believe he state should not be allowed to jail, execute, or treat some homeless person who’s stabbed a stranger for no discernible reason, what exactly are we supposed to do with that person?

        I get that you can always find an example of some time when something terrible is done in the hopes of making the world better no matter what the proposed solution is, but unless you’re going to say that you just let the homeless person go do his stabby thing, you have to pick your poison. Treating him for mental illness (assuming he has been diagnosed with one) doesn’t seem so something-something-Stalin-mass-graves a choice.

        But that’s just me.Report

      • Avatar Glyph says:

        @stillwater – at the risk of stepping into a long-running feud where I’m not wanted, allow me to speculate that you are interpreting Jaybird’s original comment in a manner different than I believe it was intended.

        Is the point to stop bad behavior or to make people be better in the first place?

        My reading of the phrase “be better in the first place” is that JB is explicitly talking about, for lack of a better word, thought control, or changing someone’s “essence” (not in a Strangelovian sense, but in a Clockworkian sense).

        While it is certainly possible to conflate that idea with garden-variety “intended to deter future bad behavior” (which most laws are obviously aimed at), or to see the two ideas as a continuum, I don’t think that was what he meant, and that’s where things went off the rails.

        IOW, I think his original comment can be written as Is the point to stop (or discourage) bad behavior or to make people be better in the first place? (bolded part added by me).

        But Jaybird can correct me if I’m wrong.

        And let’s be honest – most of the time, if I’m not speeding, it’s not because I “want to be a good person”, or because I am actively thinking of the horrific consequences of a terrible auto accident – I just don’t want to have to shell out a few hundred bucks or more on fines, and waste a half-hour on a traffic stop.

        Much of the time, that’s the best we can expect out of a law: that it stops me from doing something antisocial, out of fear of punishment.

        We shouldn’t expect that the law is somehow capable of making me into a better, smarter person. That’s between me and my god, if any.Report

      • Avatar Jaybird says:

        Now, if you don’t like prisons that’s cool. And if you don’t like treating people for mental illness (or perhaps you don’t believe that’s an actual thing?) then that’s cool too.

        For the most part, I’m more than happy enough to assume that the system we currently have established is the baseline I’m starting from… so, in this case, my thought about the punishment the judge gave the guy isn’t compared to the punishments offered in Birdtopia but to 30 days in the clink.

        When we talk about mental illness being the cause of a crime, we’re more often than not talking about people who are anti-social to a pretty dangerous degree — and not because we’re afraid they’ll commit thought crimes.

        When you say “to a pretty dangerous degree”, what do you mean? I assume that you don’t mean “have already committed a crime” but something like “we’re waiting for the inevitable”. Is that accurate?

        But it does beg the question, if you don’t believe he state should not be allowed to jail, execute, or treat some homeless person who’s stabbed a stranger for no discernible reason, what exactly are we supposed to do with that person?

        My problems with prisons aren’t the whole “we put violent people in them” thing. It’s the “we’re putting a lot of non-violent people in there, who aren’t even committing things that should be considered crimes.” If, it turns out, prisons started becoming places where people who engaged in assault and battery, rape, murder, and the like ended up, I’d have much less of a problem with the idea of prison. It’s the war on drugs that creates many of the pathologies of the system and, without it, I suspect that many of the pathologies would disappear like candlesmoke.

        When it comes to treating the mentally ill, there are (generally) two or three categories in my mind:

        1) treating people with their consent
        2) treating people without their consent
        and, here’s where I get in trouble,
        3) treating people who, were they in their right mind, would give their consent

        I’m a huge supporter of 1 and I think I’m opposed to 2 but I’m a tentative supporter of 3… except for, of course, the tension between 2 and 3 (if a schizophrenic thinks that his medication is the doctor trying to poison him, I have sympathy for tricking the patient into taking his medication, for example).

        But there’s so much we don’t understand and we’ve got a pretty crappy track record for when it comes to misdiagnosis, I don’t know that 3 isn’t giving quite an escape clause for those in charge of helping those who seriously need it because we’re fairly sure that they’ll snap someday.Report

      • Avatar Jaybird says:

        (And Glyph nailed it)Report

    • At the risk of getting bogged down in procedures, if the defence doesn’t bring up the possibility of mental illness as a factor in the crime/misdemeanor, is it fair for the judge to speculate on that when deciding on a sentence?Report

      • Avatar Tod Kelly says:

        @jonathan-mcleod Perhaps?

        Part of the reason there is (mostly) consensus on this story, I think, is that we all genuinely don’t like this guy. And I think it’s easy to punish and shame people we don’t like.

        But part of me is still uncomfortable with the concept.

        Imagine, if you will, that someone reported a neighbor who had social-integration issues because they were developmentally disabled. (Not that uncommon among people with DDs, actually.) Would be feel the same way about a judge making his stand with a sign announcing to the world that was was “retarded” and detailed his transgressions?

        In a pre-Lawrence v. Texas world, would we have been ok with a judge forcing someone to stand on a corner with a sign saying, “I am a pervert?”

        Which brings me back to why I don’t feel entirely comfortable with this ruling: I think that punishments which are only ok for people we don’t like but have to be avoided for people we do are inherently troublesome.Report

      • To be clear, I don’t know where I stand on this punishment, but I’m certainly not comfortable with it. I think the scenarios you put forth are very much worth thinking through.

        But I’m also not totally comfortable with assuming that nasty behaviour can be easily assumed to be some form of mental illness (not saying you’re doing this, but combox diagnoses are not uncommon), so if we don’t have any evidence of mental illness, I’m not sure I want to build in, “but with if the perpetrator is mentally ill?”

        I don’t like the potential to make a rather firm link between bad behaviour and mental illness. It’s a disservice to those suffering through illness (as, to be clear, I’m sure you would agree).

        It’s more that as we start asking some questions, even more questions pop up… which is perhaps a good argument against this sort of punishment, as it just leads to many levels of uncertainty.

        But, still, I’m just not sure how I feel about it.Report

      • Avatar Mo says:

        @tod-kelly This doesn’t have to do with people that we don’t like, but rather crimes that we don’t think should be crimes. I would be equally uncomfortable putting someone in jail for 30-90 days for having social-integration issues because they were developmentally disabled or because they were gay. I would have little problem with the guy in the OP spending 30-90 in county lockup for harassment, vandalizing property and committing battery.Report

  18. Avatar Saul DeGraw says:


    To answer your question:

    The cynic in me thinks we would not be thinking about this any differently or perhaps it would be ignored all together. People would simply understand or believe that something was off about Aviv and treat him accordingly or avoid him accordingly. Maybe some liberals like me would rue about the state of mental health in the United States.

    I often wonder how much undiagnosed mental health causes problems in the United States. The most recent episode of This American Life featured a story about a small-town hair stylist who was victim of a smear campaign on a small-town gossip website, originally intended to be a news website. The guy was recovering from a severe tragedy when it happened because his fiancee was murdered by her abusive and obsessive second husband. Around the same time, rumors started appearing on this site that he was a drug user/addict and potentially a child molester.

    The guy hired a lawyer and was able to eventually unearth the name of the smearer. It turned out to be five accounts written by one woman. He worked with her years ago at a local general store. He sued her for defamation/libel and won and regained his reputation and was able to move back home. He also started an avalanche of lawsuits in this town over malicious gossip spread on the site.

    TAL interviewed the woman who spread the lies and she was unrepentant! She still claimed the guy was a no-goodnik and dirty dirty man. She damned the guy for the murder because he would be openly affectionate fiancee in public even though he knew about the jealous ex or something like that. She also claimed moral superiority about the sexual claims and said there was a difference between “looking” and “loooooking.”

    Listening to the woman, she clearly sounded mentally ill in some way or at least as a serious piece of work but nothing in the world could convince her that she was wrong. It was rather depressing.Report

    • Avatar LeeEsq says:

      This is why the Rabbis teach that gossip is a sin and the Talmud says that “the gossiper speaks in Syria and kills in Rome” or something similar. Its called lashon hara, the evil tongue.Report

  19. Avatar KatherineMW says:

    I think the wording of the sign could be better, but other than that I don’t have a problem with this punishment. I think public shaming can be an effective tactic for dealing with some kinds of crimes (including drunk driving, as mentioned above), and in other situations where I’ve heard of judges giving out similar punishment, the person has a choice between the “creative” punishment and a short jail term.Report

  20. Avatar Burt Likko says:

    I am of the opinion that most forms of public humiliation are, in fact, barred by the Eighth Amendment. The very nature of a public shaming is inherently cruel — it is intended to degrade the punishee’s pride and esteem. For originalists, note that in pre-revolutionary times we had stockades, which were there largely for the purpose of causing public shame, and it seems very likely to me that the Framers of the Eighth had stockades in mind, and for the very reason that the destruction of a person’s dignity would be a significant barrier to their re-entry to society afterwards. Certainly more than physical torture was intended to be taken off the table.

    From a utilitarian sense, this is unfortunate — humiliation as a form of punishment seems well-calculated to be a deterrent to crime, it causes little actual physical pain or inconvenience, and when done as here, it costs the state a miniscule amount of money compared to imprisoning someone.Report

  21. Avatar DRS says:

    Shaming someone implies they’re capable of feeling shame. Not necessarily the case anymore.Report

  22. Avatar Jim Heffman says:

    It seems to me that one big problem with public shaming is that it is enormously visible and creates a long-term impression. Someone goes to jail, okay, maybe you can go find their criminal records, maybe they tell you voluntarily, but it’s not like the publish weekly lists of the incarcerated or allow public tours of the local supermax. On the other hand, once you’ve been standing on the corner with a sign saying “I DID WRONG”, then forever afterwards you’re Sign Guy, whatever else you were before.

    This is related to the various rulings (and legislation) that prevent criminal records from being considered in employment decisions.Report

  23. Avatar Jim Heffman says:

    Another issue is, when did it become my job as a member of the public to take part in the correctional process? By putting this guy out in public for us all to gawk at, the judge is declaring that society is the jail and we’re all the wardens. The Milgram Experiment alone ought to tell us why that’s a bad idea.Report

  24. Avatar Damon says:

    This “bully” is a poser.

    If he was a REAL bully, he’d have at the end of his court mandated sign or on the opposite side of it.

    “And F**K you too.”

    I give him 3/5 stars in the bully rankings.Report