Do “shaming punishments” promote rehabilitation? Deter criminal conduct?  Unnecessarily shame and humiliate defendants?

We must decide the legality of a supervised release condition that requires a convicted mail thief to spend a day standing outside a post wearing a signboard stating, “I stole mail.”

Facts

Shawn Gementera pilfered letters from several mailboxes along San Francisco’s Fulton Street on May 21, 2001. A police officer who observed the episode immediately detained Gementera and his partner in crime. Following his indictment, Gementera entered a plea agreement pursuant to which he pled guilty to mail theft, and the government dismissed a second count of receiving a stolen U.S. Treasury check.

The offense was not Gementera’s first. Though only twenty-four years old at the time, Gementera’s criminal history was lengthy for a man of his relative age, and it was growing steadily more serious. He was twice convicted of misdemeanor criminal mischief. A domestic dispute led to convictions for driving with a suspended license and for failing to provide proof of financial responsibility. Other arrests and citations listed in the Presentence Investigation Report included possession of drug paraphernalia, additional driving offenses (most of which involved driving on a license suspended for his failure to take chemical tests), and, soon after his twenty-fifth birthday, taking a vehicle without the owner’s consent.

On February 25, 2003, Judge Vaughn Walker of the U.S. Sentencing District of California sentenced Gementera. The guidelines range was two to eight months incarceration; Judge Walker sentenced Gementera to the lower bound of the range, imposing two months incarceration and three years’ supervised release. He also imposed conditions of supervised release.

One such condition required Gementera to “perform 100 hours of community service” to consist of “standing in front of a postal facility in the city and county of San Francisco with a sandwich board” which in large letters declares "I stole mail; this is my punishment." 

Gementera later filed a motion to correct the sentence by removing the sandwich board condition.

Judge Walker modified the sentence after inviting both parties to present “an alternative form or forms of public service” The district court imposed a four-part special condition in three new terms, proposed jointly by counsel, that the defendant observe postal patrons visiting the “lost or missing mail” window, write letters of apology to any identifiable victims of his crime, and deliver several lectures at a local school. It also included a scaled-down version of the signboard requirement.

The defendant shall perform 1 day of 8 total hours of community service during which time he shall either (i) wear a two-sided sandwich board-style sign or (ii) carry a large two-sided sign stating, “I stole mail; this is my punishment,” in front of a San Francisco postal facility identified by the probation officer. 

Reasoning

We first address Gementera’s argument that the eight-hour sandwich board condition violates the Sentencing Reform Act.

The Sentencing Reform Act affords district courts broad discretion in fashioning appropriate conditions of supervised release, while mandating that such conditions serve legitimate objectives. The statute explicitly authorizes the court to impose “any other condition it considers to be appropriate. Such special conditions, however, may only be imposed” to the extent that such condition is reasonably related to “the nature and circumstances of the offense and the history and characteristics of the defendant.” Moreover, it must be both “reasonably related” to and “involve no greater deprivation of liberty than is reasonably necessary” to “afford adequate deterrence to criminal conduct,” “protect the public from further crimes of the defendant,” and “provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.”

Accordingly, the three legitimate statutory purposes of deterrence, protection of the public, and rehabilitation frame our analysis.

Of course, the district court’s discretion, while broad, is limited—most significantly here, by the statute’s requirement that any condition reasonably relate to a legitimate statutory purpose. “This test is applied in a two-step process; first, this court must determine whether the sentencing judge imposed the conditions for permissible purposes, and then it must determine whether the conditions are reasonably related to the purposes.” Gementera’s appeal implicates both steps of the analysis.

Gementera first urges that the See condition was imposed for an impermissible purpose of humiliation. He points to certain remarks of the district court at the first sentencing hearing: “[H]e needs to understand the disapproval that society has for this kind of conduct, and that’s … the idea behind the humiliation… having to stand and be labeled in front of people coming and going from a post office as somebody who has stolen the mail.”

According to Gementera, these remarks, among others, indicate that the district court viewed humiliation as an end in itself and the condition’s purpose.

Reading the record in context, however, we cannot but conclude that the district court’s stated rationale aligned with permissible statutory. At the second sentencing hearing, when the sentence was objectives, amended to what is now before us, the court explained: “[U]ltimately, the objective here is, one, to deter criminal conduct, and, number two, to rehabilitate the offender so that after he has paid his punishment, he does not reoffend, and a public expiation of having offended is, or Although, in at least it should be, rehabilitating in its effect.” In general, criminal punishment “is or at least should be humiliating,” the court’s court emphasized that “[h]umiliation is not the point.” written order similarly stresses that the court’s goal was not “to subject defendant to humiliation for humiliation’s sake, but rather to create a situation in which the public exposure of defendant’s crime and the public exposure of defendant to the victims of his crime” will serve the purposes of “the rehabilitation of the defendant and the protection of the public.”

The court expressed particular concern that the defendant did not fully understand the gravity of his offense. Mail theft is an anonymous crime and, by “bring[ing] home to defendant that his conduct has palpable significance to real people within his community,” the court aimed to break the defendant of the illusion that his theft was victimless or not serious.

While humiliation may well be—indeed likely will be—a feature of the defendant’s experience in standing before a post office with such a sign, the humiliation or shame he experiences should serve the salutary purpose of bringing the defendant in close touch with the real significance of the crime. Such an experience should have a specific rehabilitative effect on defendant that could not be accomplished by other means, certainly not by a more extended term of imprisonment.

Moreover, “[i]t will also have a deterrent effect on both this defendant and others who might not otherwise have been made aware of the real legal consequences of engaging in mail theft.”

Read in its entirety, the record unambiguously establishes that the district court imposed the condition for the stated and legitimate statutory purpose of rehabilitation and, to a lesser extent, for general deterrence and for the protection of the public.

Assuming the court articulated a legitimate purpose, Gementera asserts, under the second prong of our test, that humiliation or so-called “shaming” conditions are not “reasonably related.” In support, he cites our general statements that rehabilitation. conditions must be reasonably related to the statutory objectives, several state court decisions and several law review articles that were not presented to the district court.

In evaluating probation and supervised release conditions, we have emphasized that the “reasonable relation” test is necessarily a “very flexible standard,” and that such flexibility is necessary because of “our uncertainty about how rehabilitation is accomplished.” While our knowledge of rehabilitation is limited, we have nonetheless explicitly held that “a public apology may serve a rehabilitative purpose.” Introducing mere uncertainty about whether the condition aids rehabilitation does not suffice; rather, he must persuade us that the condition’s supposed relationship to rehabilitation is unreasonable.

Gementera and amicus contend that shaming conditions cannot be rehabilitative because such conditions necessarily cause the offender to withdraw from society or otherwise inflict psychological damage, and they would erect a per se bar against such conditions. Though the district court had no scientific evidence before it, as Gementera complains, we do not insist upon such evidence in our deferential review. Moreover, the fact is that a vigorous, multifaceted, scholarly debate on shaming sanctions’ efficacy, desirability, and underlying rationales continues within the academy.

Criminal offenses, and the penalties that accompany them, nearly always cause shame and embarrassment. Indeed, the mere fact of conviction, without which state-sponsored rehabilitation efforts do not commence, is stigmatic. The fact that a condition causes shame and embarrassment does not automatically render a condition objectionable; rather, such feelings generally signal the defendant’s acknowledgment of his wrongdoing.

While the district court’s sandwich board condition was somewhat crude, and by itself could entail risk of social withdrawal and stigmatization, it was coupled with more socially useful provisions, including lecturing at a high school and writing apologies, that might loosely be understood to promote the offender’s social reintegration. In short, here we consider not a stand-alone highly significant condition intended solely to humiliate, but rather a comprehensive set of provisions that expose the defendant to social disapprobation, but that also then provide an opportunity for Gementera to repair his relationship with society—first by seeking its forgiveness and then by making, as a member of the community, an independent contribution to the moral formation of its youth.

These provisions, tailored to the specific needs of the offender, counsel in favor of concluding that the condition passes the threshold of being reasonably related to rehabilitation.

Accordingly, we hold that the condition imposed upon Gementera reasonably related to the legitimate statutory objective of rehabilitation. In so holding, we are careful not to articulate a principle broader than that presented by the facts of this case. The district court outlined a sensible logic underlying its conclusion that a set of conditions, including the signboard provision, but also including reintegrative provisions, would better promote this defendant’s rehabilitation and amendment of life than would a lengthier term.

Gementera also urges that the sandwich board condition violates the Constitution. Claims with respect to the First, Fifth, Eighth, and Fourteenth Amendments are presented.

We turn then to the Eighth Amendment, which forbids the infliction of “cruel and unusual punishments.” A particular punishment violates the Eighth Amendment if it constitutes one of “those modes or acts of punishment that had been considered cruel and unusual at the time that the Bill of Rights was adopted.” The Amendment’s prohibition extends beyond those practices deemed barbarous in the 18th century, however. “[T]he words of the Amendment are not precise, and their scope is not static. Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”  We are aware of no case holding that contemporary shaming sanctions violate our Constitution’s prohibition against cruel and unusual punishment.

In the absence of any evidence to the contrary, and particularly in comparison with the reality of the modern prison, we simply have no reason to conclude that the sanction before us exceeds the bounds of “civilized standards” or other “evolving standards of U.S. decency that mark the progress of a maturing society.”

Hawkins, J. dissenting

Conditions of supervised release must be reasonably related to and “involve no greater deprivation of liberty than is reasonably necessary” to deter criminal conduct, protect the public, and rehabilitate the offender. Clearly, the shaming punishment that is at issue in this case was intended to humiliate Gementera and that is all it will do. Any attempt to classify the goal of the punishment as anything other than humiliation would be disingenuous. Because humiliation is not one of the three proper goals under the Sentencing Reform Act, I would hold that the district court abused its discretion in imposing the condition.

People v. Hackler, 13 Cal.App.4th 1049, 16 Cal.Rptr.2d 681, 686-87 (1993), involved a condition that required a shoplifting offender to wear a court-provided t-shirt whenever he left the house that read: “My record plus two six-packs equals four years” on the front and “I am on felony probation for theft” on the back. Applying a state sentencing regime similar to the federal guidelines—authorizing the imposition of reasonable conditions of probation to foster rehabilitation and to protect public safety— Id. at 686, 13 Cal.App.4th 1049. court struck down the condition. The court held that the relationship between the required conduct (wearing the t-shirt) and the defendant’s crime (stealing beer) was so incidental that it was not reasonable and that the true intent behind the condition was to expose Hackler to “public ridicule and humiliation” and not “to foster rehabilitation.”

As in Hackler’s case, the purpose behind the sandwich board condition was not to rehabilitate Gementera, but rather to turn him into a modern day Hester Prynne. This sort of condition is simply improper under the Sentencing Reform Act.

Ballenger v. State, 210 Ga.App. 627, 436 S.E.2d 793 (1993), approved a condition that a convicted drunk driver wear a fluorescent pink identification bracelet By my lights, the dissent in Ballenger is far identifying him as such. Concluding that the purpose of the condition was more persuasive. clearly to humiliate, Judge Blackburn argued that “a rationale of rehabilitation may not be used to vest authority[to prescribe this type of punishment in the judiciary.”

Just as in Hackler and Ballenger, the true intention in this case was to humiliate Gementera, not to rehabilitate him or to deter him from future wrongdoing. When the district court initially imposed the sandwich board condition, the judge explained that Gementera should have to suffer the “humiliation of having to stand and be labeled in front of people coming and going from a post office.” Only at the hearing on Gementera’s punishment or release conditions did the district court change its characterization of the shaming punishment, remarking that the punishment was one of deterrence and rehabilitation and not merely humiliation.

Although the majority opinion initially seems to accept the district court’s retroactive justification for the punishment, it later as much as concedes that the sandwich board condition amounted to a shaming punishment. that the condition was “crude” and “could entail risk of social withdrawal and stigmatization,” the majority nonetheless finds the condition acceptable because it was “coupled with more socially useful provisions.”

Although I believe that the sandwich board condition violates the Sentencing Reform Act and we should reverse the district court for that reason, I also believe that this is simply that a fair measure of a civilized society is how its institutions behave in the space between what it may have the power to do and what it should do. The shaming component of the sentence in this case fails that test. “When one shames another person, the goal is to degrade the object of shame, to place him lower in the chain of being, to dehumanize him.” To affirm the imposition of such punishments recalls a time in our history when pillories and stocks were the order of the day. Abuse of power runs the very great risk that by doing so we instill a sense of disrespect for the criminal justice system” itself. I would vacate the sentence and remand for resentencing, instructing the district court that public humiliation or shaming has no proper place in our system of justice.

Do you agree with the judge’s sentence?

The opinion of the court was delivered by Rosen,  J.

Matthew M. Hines appeals the Court of Appeals’ decision to reverse the sentencing court’s imposition of a controlling, downward durational departure sentence of 24 months’ imprisonment for his convictions of attempted second-degree intentional murder and aggravated battery. We conclude that based on the facts of this case, the reason cited by the sentencing court for imposing the departure sentence (the victim’s request for leniency) does not constitute a substantial and compelling reason to depart from the presumptive sentences for each of Hines’ convictions. Thus, we hold that the sentencing court abused its discretion in imposing the 24-month sentence. Accordingly, we affirm the Court of Appeals’ decision, vacate the sentence imposed, and remand for resentencing.

Facts

According to the probable cause affidavit filed in this case, on May 29, 2008, Wichita police were dispatched to the residence Hines shared with his wife, Charmaine, and their four children. When police arrived, they discovered that Charmaine had suffered significant lacerations to the front of her neck and chest. As a result, Charmaine was transported to the hospital by ambulance.

At the hospital, Charmaine told law enforcement that she arrived home that afternoon and told Hines that she wanted a divorce. While their four children played outside, Charmaine and Hines argued in their bedroom. Hines eventually told Charmaine, “If I can’t have you nobody will.” He then placed his hands around Charmaine’s neck and began choking her. When one of their children walked into the bedroom, Hines let go of Charmaine and told the child to go back outside. Once the child left, Hines resumed strangling Charmaine but stopped again when the child returned to the room. At that point, Charmaine escaped from the bedroom and ran out of the house to a neighbor’s house across the street. While standing on the neighbor’s front porch, Charmaine began yelling for the neighbor’s help.

The neighbor eventually came out onto her porch and began speaking to Charmaine, but Hines, who followed Charmaine to the neighbor’s home, started arguing with Charmaine. Hines eventually pulled a utility knife out of his pocket and held it up to Charmaine’s neck. He then grabbed her hair and pulled her off the porch and onto the neighbor’s yard, where Charmaine fell to the ground. According to the neighbor, Hines got behind Charmaine and elevated her head with one hand while holding the utility knife with the other. Hines then proceeded to cut Charmaine’s neck with the knife from side to side. Hines looked up at the neighbor after she told him to stop, but he proceeded to slash Charmaine again across her neck and on her chest. At least two of Hines’ children witnessed him cutting Charmaine. After the brutal attack, Hines ran to his vehicle and drove away. Police arrested Hines later that day.

The State initially charged Hines with attempted first-degree murder but later amended the information to add one count of aggravated kidnapping and two counts of domestic battery. Eventually, Hines and the State entered into a plea agreement where Hines agreed to plead guilty to the amended counts of attempted second-degree intentional murder and aggravated battery in exchange for the State’s promise to dismiss the remaining counts. As to sentencing, the State would be allowed to argue for imposition of the aggravated prison sentence in the applicable grid box for each conviction as well as argue for consecutive sentences. Finally, the parties’ agreement allowed Hines to argue at sentencing for a downward dispositional departure (which the State could oppose), but the agreement prohibited Hines from arguing for a downward durational departure or for concurrent sentences.

At the plea hearing, Hines pleaded guilty to each count. With regard to the factual basis for each count, Hines agreed that he had cut Charmaine twice across the neck with a utility knife with the intent of committing second-degree murder and that he had also intentionally caused Charmaine great bodily harm or disfigurement—supporting the count of aggravated battery. Accordingly, the sentencing court found that there was a factual basis supporting each of Hines’ guilty pleas and, thus, found him guilty of attempted second-degree intentional murder and aggravated battery.

Prior to sentencing, a presentence investigation was conducted which determined that Hines’ criminal history score was an H, resulting in an applicable sentencing range of 61-66-71 months’ imprisonment for the primary offense of attempted second-degree murder, a severity level 3 felony. For aggravated battery, a severity level 4 felony, the applicable sentencing range was 38–43 months’ imprisonment. See K.S.A. 21-4704(a).

Hines filed a motion requesting a dispositional departure sentence. In support of his motion, Hines listed the following mitigating factors: (1) his admission of guilt; (2) probation would promote his reformation given his age of 31; (3) probation would allow him to continue with the anger management and counseling that he was already undergoing; (4) he had no prior felony convictions; (5) his crimes involved a single individual, indicating that he does not pose a threat to society as a whole; (6) Charmaine did not want Hines to be sent to prison and wished for the district court to show leniency; (7) Hines was under duress when he committed the crimes because prior to attacking Charmaine, she had admitted to him that she was having an affair and wanted a divorce; and (8) community based programs would promote Hines’ reformation as well as protect the safety interests of society.

At sentencing, Charmaine made a statement in support of Hines’ request for a dispositional departure sentence: “I’m asking the Court to please, you know, as far as my husband, if he could get probation. I’m not saying that what he did wasn’t wrong, but I feel like he really wasn’t trying to harm me. And I just ask the Court to think about his children, as far as his sentencing. He’s really not a—as far as what people are trying to make him out to be. He’s a loving father, a loving husband. And I’m just asking the Court, please, to give him probation, to think of his kids.”

After Charmaine made her statement, defense counsel argued in favor of granting a dispositional departure sentence, noting that Charmaine and Hines were currently separated and, thus, this was “not a situation where … the victim wants to get back together with the defendant and pretend this didn’t happen, these individuals are not going to be back together.” Defense counsel also pointed out that Hines did not have any prior convictions for any violent offenses and that he pleaded guilty to the two crimes in order to take responsibility for his actions and to have the opportunity to request probation. Furthermore, defense counsel noted that Hines was currently attending counseling for anger management, that he had the support of his family, and that his actions in this case were an isolated event that was explained by the fact that Charmaine had told him she was having an affair and wanted a divorce.

In addition to defense counsel’s statements, Hines addressed the court and expressed sorrow for what he had done to Charmaine and asked the court to grant him probation.

The State responded by contending that a departure sentence was not appropriate based on the facts of the case. The State argued that the aggravated number in the applicable grid box should be imposed for both convictions and the sentences should be ordered to run consecutive.

After hearing statements from all the parties, the sentencing judge stated: “All right. Well, I’ve reviewed the file pretty carefully, went over the criminal history and the motion for departure. The plea agreement was worded in kind of a unique way, where I think there was an anticipation that there would be a request for probation, but for some reason there was an agreement that we would be running these cases consecutive and that there wouldn’t be a request for a durational departure.” Fortunately, I have the ability to deviate somewhat from a plea agreement, even where they don’t really agree on final disposition. I will tell you that, you know, the crime that was committed here—and I appreciate the victim being here and testifying and asking that Mr. Hines be given an opportunity on probation, and I am going to take into account the victim’s wishes, but I don’t think that I’m going to be able to grant Mr. Hines probation.

“I will take into account all the facts and circumstances of the case and enter a durational departure. In regard to the motion for departure, I’m going to find that there are substantial and compelling reasons to enter a durational departure. And the reason being that the victim has appeared here today and is requesting leniency for Mr. Hines. But I can’t simply ignore the fact that Mr. Hines, on this day, tried to kill Mrs. Hines. And in fact, is charged with two counts, not just the attempted second-degree murder, but also the aggravated battery.”

Ultimately, the sentencing court imposed downward durational departure sentences of 24 months’ imprisonment for the attempted second-degree murder and aggravated battery convictions and ordered the sentences to run concurrent.

The State filed a notice of appeal to challenge the sentencing court’s decision to impose a downward durational departure sentence. Before the Court of Appeals, the State argued that the court’s stated reason for granting the durational departure sentence—the victim’s request for leniency—was not legally sufficient for two reasons. First, the State contended that the basis for Charmaine’s request for leniency (i.e., her belief that Hines was not trying to harm her) was not supported by substantial competent evidence because (1) Hines pleaded guilty to crimes that proscribed intentional conduct; (2) the facts alleged in the probable cause affidavit indicated that Hines had acted with the intent to kill Charmaine; and (3) the district court explicitly found at sentencing that Hines had tried to kill Charmaine. Second, the State argued that even if Charmaine’s request for leniency was supported by substantial competent evidence, a victim’s request for leniency, standing alone, can never be considered a substantial and compelling basis to grant a departure motion. Finally, the State argued that if the Court of Appeals determined that a downward durational departure sentence was warranted in this case, then the Court of Appeals should find that the extent of the departure was inappropriate, given the fact that the 24-month sentence was less than half of the presumptive mitigated sentence (61 months’ imprisonment) in the applicable grid box (3-H) for Hines’ attempted second-degree murder conviction.

In addressing the State’s arguments, the Court of Appeals first noted that in State v. Heath, it had held that testimony from a victim or his or her family may furnish a substantial and compelling reason for a departure. But the court ultimately concluded that Charmaine’s request for leniency did not constitute a substantial and compelling reason for a departure in this case because the facts established that Hines had acted with the intent to kill Charmaine. Accordingly, the Court of Appeals reversed the downward durational departure sentence and remanded for resentencing. We granted Hines’ petition for review.

Again, in granting Hines a downward durational departure sentence, the sentencing judge stated: “I will take into account all the facts and circumstances of the case and enter a durational departure. In regard to the motion for departure, I’m going to find that there are substantial and compelling reasons to enter a durational departure. And the reason being that the victim has appeared here today and is requesting leniency for Mr. Hines.” [Emphasis added.]

Although the sentencing court noted that it had “take[n] into account all the facts and circumstances of the case,” the court explicitly stated that Charmaine’s request for leniency was “the reason” for imposing a downward durational departure sentence. Furthermore, contrary to Hines’ assertion on appeal, the sentencing court did not find that the reasons stated in his dispositional departure motion constituted substantial and compelling reasons for granting the motion. The court clearly stated that it was imposing a durational departure sentence due to Charmaine’s request for leniency. That reason now governs as the sole basis for the sentencing court’s decision.

The Court of Appeals decision in Heath offers some insight into when a victim’s statement can provide a substantial and compelling reason for imposing a departure sentence.

Defendant Danny Heath was a driver of a car involved in an accident resulting in the death of his coworker and friend, Kord Cole. Testing determined that Heath’s blood-alcohol level was .151 percent. Heath ultimately pleaded no contest to involuntary manslaughter, a severity level 5 person felony.

At sentencing, both of Cole’s parents asked the court for leniency, specifically requesting that Heath be given probation. The sentencing court departed from the presumptive sentence of imprisonment and placed Heath on probation for 60 months. In support of its decision, the court cited the parents’ statements as one of the reasons for imposing the dispositional departure sentence. On appeal, the Court of Appeals held that based on the facts of the case, the parents’ request for leniency was a substantial and compelling reason justifying the departure sentence. The court stated: “The facts of this case give the statements of the victim’s parents reliability and trustworthiness. Heath had worked with the victim for two years preceding the accident. On the day of the accident, the two were working together on a construction site in Wichita. They made a daily commute together from Hutchinson to Wichita to get to work. In addition to their working relationship, Heath and the victim were also social friends. After leaving work on the day of the accident, they went to a tavern adjacent to the work area and had a couple of beers. After driving 25 to 35 miles back to Hutchinson, Heath swerved to miss an object—a piece of a tire—in the roadway, causing the car to slide off the road into a utility pole.”

Other events in this case also demonstrate the support the victim’s family showed for Heath. The day Heath was released from the hospital, the victim’s parents came to his residence, at which time he promised them he would never drink alcoholic beverages again. The victim’s sister also visited Heath after he was released from the hospital and showed her support by sitting beside Heath’s wife at the preliminary hearing. Last, before entering the courtroom on the day of the departure hearing, the victim’s mother came up to Heath, hugged him, and told him he needed to take care of his family. “Finally, Heath also showed remorse for what he had done. He continuously recognized his responsibility in causing the death of his close friend, Kord Cole. Heath’s parents and his brother had died prior to the accident, so he testified he knew the pain and the hurt the victim’s family was going through and he was sorry he caused it. Further, Heath testified he had not consumed alcohol since the accident, and he assured the court he could realistically live up to his pledge of abstinence from alcohol.” Heath, 21 Kan. App.2d at 417, 901 P.2d 29.

The parents’ request for leniency was obviously motivated by their son’s close relationship with Heath and the fact that Cole’s death was accidental. Furthermore, because the parents advocated on behalf of Heath at sentencing, they likely found his expression of sorrow and his vow to abstain from alcohol to be sincere. As the Court of Appeals found, the record clearly supported the finding of substantial and compelling evidence supporting the trial court’s reasons justifying departure. Accordingly, a reasonable person could conclude that there was substance behind the parents’ request for leniency and that their reason for requesting leniency would force a court, based on the facts of the case, to abandon the status quo and to depart from the sentencing guidelines.

In this case, the sentencing court imposed a durational departure sentence upon Hines based solely on Charmaine’s request for leniency. The judge failed to state on the record what he found persuasive about Charmaine’s request for leniency, but the transcript of sentencing shows that Charmaine’s request for leniency was based on her feeling that Hines “wasn’t trying to harm” her on the day of the altercation and that Hines was a loving father and husband.

Notably, the court found at sentencing that Hines was trying to kill Charmaine on the day of the altercation, indicating that the judge did not find Charmaine’s claim to the contrary believable. And without Charmaine elaborating on what makes Hines a loving father and husband, the facts of this case would force a reasonable person to simply not reach that conclusion about Hines. According to the probable cause affidavit filed in conjunction with the original complaint, Hines strangled Charmaine two separate times in their bedroom before Charmaine escaped from the couple’s house and ran to a neighbor’s house seeking help. Hines followed Charmaine onto the neighbor’s front porch and, after briefly arguing with her, pulled a utility knife from his pocket and held it to the side of Charmaine’s neck as he grabbed her by her hair. He then forced her to walk down the porch stairs and onto the neighbor’s front yard where he (in front of his neighbors and two of his children) proceeded to cut Charmaine twice across her neck from side to side and then slashed her from the bottom of her neck to the top of her breast bone. Charmaine sustained significant lacerations to the front of her neck and chest, resulting in her being transported to the hospital by ambulance. As a result of these actions, Hines pleaded guilty to attempted second-degree intentional murder and aggravated battery. He conceded at his plea hearing that he cut Charmaine two times across her neck with the intent to kill her and that he also intentionally caused great bodily harm or disfigurement to Charmaine.

A reasonable person would certainly not find much substance behind Charmaine’s request for leniency based on her belief that Hines is a loving husband, given the fact that he strangled her twice and cut her with a utility knife with the intent of killing her. (“In the context of domestic violence, the victim may have many conflicting emotions. A defendant and other family members could easily pressure the victim to request leniency. We would not wish to encourage trial courts to rely upon this reason for a downward departure sentence in a case involving domestic violence.”) Furthermore, without more explanation from Charmaine, one cannot put much weight on her belief that Hines is a loving father; he certainly had no qualms about battering, stabbing, and attempting to kill Charmaine in the presence of his children. To the contrary, the brutality perpetrated by Hines upon the mother of his children raises great concern regarding his ability to adequately control his violent impulses in light of the stresses and strains encountered in parenting (court stated that “[w]hile we agree that supporting a family may be a proper departure factor in certain cases, its application is questionable when there is reason to believe a defendant may harm the very children he is supporting”).

Unlike the parents’ request for leniency in State v. Heath, there appears to be little substance behind Charmaine’s request for leniency here. And based on the record currently before us, Charmaine’s request for leniency would certainly not force a reasonable person to abandon the status quo and impose sentences less than what are prescribed by the sentencing guidelines. Accordingly, we conclude that the sentencing court abused its discretion when it decided to impose a durational departure sentence based solely on Charmaine’s request for leniency.

The record on appeal indicates that the sentencing court may have had additional reasons for departure, but it did not clearly state those reasons on the record at the sentencing hearing. Accordingly, we vacate Hines’ sentences and remand for resentencing. If the court determines at resentencing that there are substantial and compelling reasons for imposing a departure sentence (which can include a request for leniency from Charmaine if she chooses to make such a request at resentencing and gives additional reasons for why she is requesting leniency), then the court may impose such a sentence, but it should clearly state on the record all the reasons why it is imposing a departure sentence. If the sentencing court chooses to impose a departure sentence, the court’s decision would naturally be subject to appellate review pursuant to K.S.A. 2011 Supp. 21-6820. The judgment of the Court of Appeals reversing the district court is affirmed. The sentences are vacated.

What are the objectives of sentencing? Were these goals achieved by a sentence of probation?

Judge Joyce Karlin sentenced Du to ten years in state prison (six years for voluntary manslaughter and four years for use of a gun in the commission of a felony) and then suspended the sentence and placed Due on probation.

Judge Karlin listed the purposes of sentencing as: (1) the protection of society; (2) punishment; (3) encouragement of a law-abiding life; (4) deterrence; (5) isolation; (6) restitution; (7) uniformity in sentencing. She observed that sentences in California for voluntary manslaughter (murder in heat of passion) ranged from probation to several years in prison and explained that the facts in these cases were so different that uniformity in sentencing could not be realistically achieved. There clearly was no need to protect society by incarcerating Mrs. Du or to encourage her to live a law-abiding life or to isolate her from society. There was perhaps some social interest in her punishment.

Judge Karlin noted that there was a presumption (or policy) that probation should not be extended to an individual who used a firearm during a crime. This could be overcome in an “unusual case.” She concluded that Mrs. Du’s case qualified as “unusual circumstances.” She was a shopkeeper who was defending herself and did not possess a record of violence or pose a threat to society. Her crime was committed “under circumstances of great provocation, coercion and duress.”

Du was defending herself against an assault by Latasha who, had she not been killed, would have been charged with as assault through the use of her fists. Du’s response, in the view of the court, was a reaction to the fear and anxiety created by the terror, and violence of gang members. Du would not have been working had she not been protecting her son from the “robberies and terrorism” that plagued the store.

The gun used by Mrs. Du had been stolen and returned to the family “shortly” before the shooting. The judge doubted whether Mrs. Du was aware that it had converted into an automatic weapon with a hairpin trigger.

Judge Karlin asked in conclusion, “[d]id Mrs. Due react inappropriately to Latasha? Absolutely. Was Mrs. Due’s over-reaction understandable? I think so … I could not justify imposing a short prison term.”