York judge stays sentence requiring man to hold 'serial thief' sign
A judge who ordered repeat shoplifter Durell Scales to stand in front of the York County Judicial Center while holding a sign identifying him as a "serial retail thief" has temporarily suspended Scales' punishment.
On Wednesday, Common Pleas Judge Harry M. Ness issued an order staying the sentence he imposed Aug. 6, which was in response to a petition for reconsideration filed by the York County District Attorney's Office.
Ness said in his order that Scales' sentence will remain stayed until the prosecution's motion to modify it is resolved.
On Wednesday afternoon, members of the Black Ministers' Association of York stood in front of the judicial center and thanked District Attorney Dave Sunday and his office for meeting with them Tuesday and listening to their concerns. Sunday's office filed its motion for sentence reconsideration late Tuesday afternoon.
Pastor Bill Kerney, senior pastor of Covenant Family Ministries and president of the Black Ministers' Association, announced the stay of Scales' sentence during the news conference.
"He no longer has to stand outside ... and be humiliated publicly," Kerney said, adding the issue isn't solely about how Scales has been affected. "Public humiliation is not a proper form of discipline."
Kerney said the public-shaming part of the sentence "showed racial bias." Scales is Black.
Meeting with judge: The BMA is scheduled to meet the judge in his chambers Thursday morning, according to the pastor.
"He was eager — gracious — to meet with the clergy here in York," Kerney said of Ness.
He said the BMA has already established working relationships with the DA's office and with York City Police, so when something troubling happens the association is able to work toward "a positive reaction, instead of a destruction reaction."
The pastor said York's clergy doesn't want to dictate what Scales' eventual revised sentence should be, because that's the job of the courts. Rather, he said, the BMA wants to help put Scales on the path of recovery.
Sandra Thompson, president of the York NAACP, said that group and allies have already started trying to help Scales address housing — he's homeless and is staying in a hotel — and other needs, including finding mentors for him.
It was Thompson who put out the call for citizens to stand with Scales on Tuesday to support him.
A practicing attorney, Thompson said she knows very well that a request for reconsideration "can cut both ways," meaning judges have the power to hand down harsher sentences when defendants ask for reconsideration.
DA's motion: First assistant district attorney Tim Barker's motion asked Ness to vacate the sentence he handed down to Scales on Aug. 6 and instead allow the York man to apply for wellness court, formerly known as treatment court. Wellness courts are designed to address the underlying issues that cause defendants to offend and include drug court, mental-health court, DUI court and veterans court.
Prosecutors and Scales' attorney had reached a negotiated plea agreement that involved a time-served sentence of six to 23 months for his eighth retail theft conviction, but Ness refused to impose it.
Instead, he told the 42-year-old Scales he was sending him to state prison.
Ness said Scales asked the judge not to do that, prompting the judge to ask if Scales was willing to hold up a sign saying "I am a serial retail thief (with) 7 priors." Ness said Scales agreed.
The judge then sentenced him to two years of intensive probation with the first six months on house arrest and ordered him to pay restitution and court costs for stealing a Nintendo Switch worth about $300.
As part of Scales' punishment, Ness ordered him to stand in front of the York County Judicial Center holding the "thief" sign from 8:30 a.m. to 4:30 p.m. Tuesdays and Thursdays for the weeks of Aug. 10, 17 and 24, according to court records.
History of issues: "The Defendant has a well-documented history of drug and alcohol and mental health issues ... (and) previously had been in drug wellness court and was an unsuccessful discharge," the prosecution's motion states.
Scales reapplied for mental-health wellness court in 2018 but was determined to be ineligible because he had failed to complete drug wellness court, "and the Court had indicated that if he committed any further crimes that a severe penalty would be imposed," the motion states.
While Scales was in York County Prison on probation violations, he successfully completed the 16-week Freedom program, which uses a cognitive-behavioral approach to teach inmates how to deal with chemical-dependency issues.
"The Defendant's crimes continued to appear to be fueled by substance use disorder as well as co-occurring mental health (issues)," the motion states. "Recognizing that the defendant is a high risk, high need individual ... the best measure of county supervision would be a re-application for Wellness Courts and potential admission into one of the Wellness Court programs."
Barker noted that he reviewed Scales' criminal history and found him to be eligible for wellness court.
If Scales isn't accepted into wellness court, then prosecutors are requesting "an alternative restorative probation sentence that is focused on the drug and alcohol and mental health needs of the Defendant," and includes updated drug-and-alcohol and mental-health evaluations, Barker wrote.
Supporters: Scales completed his first day of sign-holding in front of the judicial center Tuesday and was joined throughout the day by more than two dozen supporters who maintain holding the "thief" sign does nothing except humiliate Scales.
Supporters held their own signs Tuesday, including "He is a man" and "Black Lives Matter."
Thompson and other supporters maintain that a white man would not have received the same shaming punishment.
Thompson said defendants such as Scales need sentences that help address their underlying issues.
"Dehumanizing them does not help," she said. "They're already degraded. They're already rejected. They've already (been made to feel) 'less.'"
'My last hope': Ness told The York Dispatch that his primary intent in handing down the unusual sentence wasn't about humiliating Scales — it was about doing something that makes Scales change his behavior.
"I think the point is to have him ... see himself as others see him," the judge said. "That’s my last hope for him. Otherwise I’ll just lock him up."
Scales was on probation in three other shoplifting cases when he was arrested and charged in his latest retail theft case, according to Ness.
"We did everything we could do (to help Scales)," the judge said, including previously giving him probation and access to drug treatment.
The judge said he's never handed down such a sentence before and said it had nothing to do with race. He said he would do it again in the future for other defendants, if it's appropriate.
"He happened to be the (defendant) who created a frustration point in my career," Ness said, adding Scales seemed happy about avoiding state prison.
— Reach senior crime reporter Liz Evans Scolforo at firstname.lastname@example.org or on Twitter at @LizScolforoYD.