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OUTLET MALL CASE

Appeals court overturns public shaming sentence of Kenosha County judge in local retail theft case

Public shaming — from stocks to whipping posts—were a mainstay of the criminal justice system two centuries ago.

The Wisconsin Court of Appeals found this week that public shaming should remain a thing of the past, vacating a provision in a sentence by Kenosha County Circuit Court Judge Bruce Schroeder that required a woman to inform the management of any store she entered that she was on supervision for retail theft.

Milwaukee resident Markea Brown, 28, was convicted in 2018 of felony retail theft, admitting in a plea deal that she had stolen $2,655 worth of merchandise from a store at the Pleasant Prairie Premium Outlets. Schroeder sentenced Brown to 15 months in prison followed by two years of extended supervision.

As part of the conditions of that supervision, Schroeder ordered that Brown stay away from the Pleasant Prairie mall, and ordered that at any store she entered while she was on supervision she “notify management at the service desk that she is on supervision for retail theft.”

In requiring that notification, Schroeder told Brown that condition “is “going to embarrass you, of course” and continued that while the courts no longer put people in stocks “to be embarrassed and humiliated .. (the court feels) that embarrassment does have a valuable place in deterring criminality.” Schroeder upheld the condition when asked to reconsider in a post-conviction motion.

The appellate court disagreed.

“We are not persuaded that embarrassing or humiliating defendants with a state-imposed broad public notification requirement promotes their rehabilitation,” the court ruled.

“While the court also stated that it sought to provide all merchants with an opportunity to protect against theft, the state has provided no legal support for the imposition of a requirement that repeat offenders must self-identify as they go about day-to-day life to personally notify any and all individual potential victims of their criminal history. We do not see where such a requirement would start and stop.”

The appeals court found that the notification would likely result in store managers refusing to allow Brown in their stores, which because of the way the sentence was imposed would have included necessary services like grocery stores.

“Thus the likely consequence — refusal to serve Brown and the attendant public humiliation with being kicked out of a store when she is not doing anything wrong — would undoubtedly occur,” the appellate decision states. The decision states that the condition would also impact Brown’s children as well.

The annual Law Enforcement Memorial Service takes place Wednesday in Downtown Kenosha.

The appellate court did uphold a second part of Schroeder’s conditions, stating that the condition barring her from being on the outlet mall property was narrowly tailored to the location of her crime.

Brown was charged in Milwaukee County with another retail theft in November 2020. That case is still pending.

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