5-9-2013 National:This Informational Post was prompted by the case: State v Schad.
Below are other cases which cover "Sign Issues" and we will update this post as we find others in the future.
In all of the following the signs were ordered TAKEN DOWN for various reasons, see cases:
- Kansas: State v Schad (Reasons are shown in the original)
- Tennessee: State v Burdin "The power to define what shall constitute a criminal offense and to assess punishment for a particular crime is vested in the legislature. State v. Hale,840 S.W.2d 307, 314 (Tenn. 1992); Hunter v. State,496 S.W.2d 900, 902-03 (Tenn. 1972); Woods v. State, 130 Tenn. 100, 106-07, 169 S.W. 558, 559-560 (1914). The condition imposed in this case is not expressly or implicitly authorized by the Act.
Where the legislature has considered the public disclosure of the identity of sexual offenders, authorization has been far more restrictive than the public disclosure ordered in this case. The Sexual Offender Registration and Monitoring Act, which became effective January 1, 1995, addresses the circumstances under which the identity and other information regarding sexual offenders may be released. That act establishes a sexual offender registry to be maintained by the Tennessee Bureau of Investigation, and it authorizes the use of information about sexual offenders by law enforcement officials and other public officials "assigned responsibility for the offender's supervised release." Tenn. Code Ann. § 40-39-106 (Supp. 1995). That act further provides that otherwise, the information in the registry, "shall be confidential," except that a law enforcement agency "may release relevant information deemed necessary to protect the public concerning a specific sexual offender." Tenn. Code Ann. § 40-39-106(c). Even though the issue before the Court is not controlled by that statute, it does reflect the policy of the legislature regarding the public identification of sexual offenders. Posting the sign ordered by the court in this case would not be consistent with that policy." - Montana: State v Muhammad " ¶ 37 We agree with the majority of jurisdictions holding that the imposition of such conditions exceeds express or implicit statutory authority granted to trial courts, as the requirement is not reasonably related to serve the goals of rehabilitation and the protection of the victim and society. Therefore, we conclude that the condition requiring the placement of signs at every entrance of Muhammad's residence violates § 46-18-202(1)(e), MCA (1997).
This condition, as is the banishment condition, is unduly severe and punitive to the point of being unrelated to rehabilitation. As noted by other jurisdictions, the effect of such a scarlet letter condition tends to over-shadow any possible rehabilitative potential that it may generate. Moreover, the District Court imposed less restrictive means to rehabilitate Muhammad and to protect the victim and society, such as requiring that he obtain sexual offender treatment, have no contact with the victim or her family and register as a sexual offender and as a violent offender, which permits the agency that Muhammad is registered with to disseminate his name to the public with the notation that he is a sexual offender, pursuant to § 46-23-508(1)(b)(ii), MCA (1997).
¶ 38 Whereas we have determined that the sign requirement is not reasonably related to the goals of rehabilitation and the protection of the victim and society in violation of § 46-18-202(1)(e), MCA (1997), we will not address Muhammad's constitutional arguments. For the foregoing reasons, we vacate the condition requiring the placement of warning signs at every entrance of Muhammad's residence imposed in the District Court's June 7, 2000, Order." - Illinois: People v Meyers "Although the sign may foster the goals of probation to the extent that it punishes the defendant and protects the public, furtherance of these two goals alone does not render the condition reasonable. Indeed, we are persuaded by defendant's contention that the sign, in fact, may hamper the goal of rehabilitation, and that the erection of the sign is inconsistent with the conditions of probation listed in section 5-6-3(b). We recognize that the trial court labored arduously and sincerely to develop a sentence which would serve the needs of society and simultaneously avoid incarceration of the defendant. Nonetheless, we hold the sign condition of probation imposed in this case was unreasonable and did not serve the purposes of section 5-6-3(b).... ... ...
We hold that section 5-6-3(b) of the Code did not authorize the trial court to require the sign as a condition of the defendant's probation. The sign contains a strong element of public humiliation or ridicule because it serves as a formal, public announcement of the defendant's crime. Thus, the sign is inconsistent with the conditions of probation listed in section 5-6-3(b), none of which identify public notification or humiliation as a permissible condition. Further, we determine that the sign may have unpredictable or unintended consequences which may be inconsistent with the rehabilitative purpose of probation.
Finally, the nature and location of the sign are likely to have an adverse effect on innocent individuals who may happen to reside with the defendant. At the time of sentencing in this case, the defendant's wife was living on the premises where the violent felon sign was to be displayed. The defendant's elderly mother also intended to live there. The record shows that the defendant has two adult children who visit the farm, as well as young grandchildren. We believe that the manner in which the sign affects others also renders it an impermissible condition of probation.
Conditions which label a defendant's person or property have a stigmatizing effect and are considered shaming penalties. D. Kahan, What Do Alternative Sanctions Mean? 63 U. Chi. L.Rev. 591 (1996); Comment, Sentenced to Wear the Scarlet Letter: Judicial Innovations in Sentencing-Are They Constitutional? 93 Dick. L.Rev. 759 (1989); Comment, The Modern Day Scarlet Letter: A Critical Analysis of Modern Probation Conditions, 1989 Duke L.J. 1357 (1989). Although a probationer may experience a certain degree of shame from a statutorily identified condition of probation, shame is not the primary purpose of the enumerated conditions.
The judicially developed condition in the case at bar does not reflect present penological policies of this state as evidenced by our Unified Code of Corrections. The authority to define and fix punishment is a matter for the legislature. People v. Breen,62 Ill.2d 323, 327, 342 N.E.2d 31 (1976). The drastic departure from traditional sentencing concepts utilized in this case is not contemplated by our Code. Therefore, we determine that the erection of the sign as a condition of probation was unreasonable, and may be counterproductive to defendant's rehabilitative potential."
More to follow as we find them.
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