In what initially appeared to be a run-of-the-mill case, Common Pleas Judge Harry M. Ness on Thursday offered Durell Scales an unconventional punishment when he appeared for sentencing for shoplifting a Nintendo Switch from the Best Buy in Springettsbury Township and several probation violations.
“You have a significantly horrible criminal history,” said Ness, who added that he tried to come up with a resolution that could make a change in Scales’ life. The original plea offer in the case was 11 1/2 to 23 months in York County Prison. “This is your eighth offense.”
Scales, he said, has been placed on probation. He’s served time. And he unsuccessfully participated in what used to be called York County Drug Treatment Court.
So Ness started to lay out the proposal: two years’ probation, with the first six months on house arrest. Then, the judge pulled out a large sign from below the bench that read, “I AM A SERIAL RETAIL THIEF. 7 PRIORS !!”
As part of the sentence, Scales would have to stand with the sign from 8:30 a.m. to 4:30 p.m., twice per week, for three consecutive weeks, outside the York County Judicial Center.
He agreed to the terms.
Ness isn’t the first judge in York County to hand down an unorthodox sentence. A late colleague, Judge Sheryl A. Dorney, once famously ordered a man who’d been convicted of stealing a car stereo — a crime that happened to have taken place on her birthday — to send her a card every year on that date. But some raised questions about the appropriateness of the punishment.
Public shaming has been around since before the founding of the country, said William Dunlap, a professor of law at the Quinnipiac University School of Law in Connecticut, who has looked at dozens of these kinds of cases across the United States.
People used to be put in the stocks and pillories in the middle of town. Neighbors could walk up and insult and throw trash at them. Even today, he said, trials are a more formal way of calling attention to crime and wrongdoing.
Dunlap said these types of sentences don’t violate the Constitution — or, to his knowledge, any state laws.
He said he doesn’t see the sentence as constituting cruel and unusual punishment. The penalty is less cruel than the alternative that’s the perfectly legal and usual result: incarceration. The man agreed to the condition, “which suggests the defendant also thinks it’s less cruel than going away.”
“Judges do have a wide discretion in most jurisdictions. And usually it consists of adding conditions like this to a fine or a custodial sentence,” said Dunlap, who teaches criminal and constitutional law. “So when it’s instead of a fine or a custodial sentence, and the defendant agrees to it, there’s very little basis for challenging.”
But others questioned the sentence.
“I think it’s incredibly problematic,” said Nyssa Taylor, criminal justice policy counsel for the ACLU of Pennsylvania, who added that she felt the punishment seemed malicious and fell outside judicial norms. “We’re not living in the 1700s.”
Judges, she said, are required to act in a way that’s neutral and follows the law. She described the sentence as grounds for serious concern.
Scales, who is Black, appears to have a history of drug addiction. He stated that he’d be staying at a motel in Fairview Township when he’s released from York County Prison.
Taylor said drug addiction should be treated as a public health concern. Public humiliation, she said, won’t address the issue.
Sandra Thompson, an attorney who is president of the York NAACP, said it’s hard to know when treatment will click with a person.
“I don’t believe that’s helpful to the person. I don’t believe it’s helpful to society,” Thompson said of the sign. “I just think that a better thing for the judge to have done is make him perform community service for those hours. He missed an opportunity to help build up his humanity.”
At the same time, Thompson said, the man was likely facing a prison sentence.
Black people, she said, have a history of being humiliated in the criminal justice system. That includes situations in which police officers order them to pull down their pants in the street.
Alisa Livaditis, Scales’ attorney, quickly left the courtroom and could not be reached.
In Ohio, retired Painesville Municipal Court Judge Michael A. Cicconetti received national attention for offering creative sentences in cases.
Cicconetti said he had a pretty lucrative practice handling criminal and drunken-driving cases, but he kept seeing the same clients come back. So he started making people find help to address the root problem — or he wouldn’t represent them.
Later, Cicconetti said, he ran against an incumbent judge with whom he didn’t get along. That was so all his cases would be automatically reassigned to a different court. He won.
“When I got on the bench, I said, ‘I’ve seen what judges do. They all do the same damn thing,’” said Cicconetti, who served from 1994 to 2019 and stated that he took that philosophy of helping people along with him.
“You come into court, you negotiate a plea,” he added, likening the process to a grocery store cashier. “That’s it, in and out.”
So Cicconetti said he started offering drivers who had illegally passed school buses a choice: lose their license for 90 days, or sit with elementary school children and witness the dangers firsthand of what happens when people go around these vehicles. Everyone picked the second option. Then, he said, they’d come back to court and thank him for the eye-opening experience.
Cicconetti said his guiding principle was to never propose a sentence that he would not do himself if offered it in the same situation. Most of them were spontaneous. He emphasized that people always had a choice and could’ve instead taken jail time.
One time, Cicconetti sentenced a woman who’d become overwhelmed and abandoned 35 cats to spend the night in the woods. (The plan was called off at about midnight due to lake effect snow from Lake Erie, he said, and she spent the rest of the night in jail.)
In another case, Cicconetti sentenced a man who’d called law enforcement “pigs” to stand outside for several hours next to a 350-pound pig with a sign that read, “This is not a police officer.”
“This guy, a matter of fact, after that, we go to lunch a couple times. It turned out well. He turned out well,” Cicconetti said. “Everything turned out well.”
Contact Dylan Segelbaum at 717-771-2102.