Youngjae Lee was quoted in Pacific Standard regarding unusual criminal sentences.
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.”
…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.