Shaming penalties involve the public humiliation of an individual who commits a crime or violates social norms, subjecting the offending individual to ridicule or disrespect by others in an attempt to punish and rehabilitate the individual. Proponents of shaming penalties attempt to exploit a perceived connection between the feeling of shame and compliance with legal or social norms. Unlike incarceration, shaming does not employ a denial of liberty but rather a withdrawal of social status. This essay will review the history of shaming penalties and explore the arguments for and against the place of such penalties in the criminal justice system.
Shaming penalties typically involve requiring the offender to wear some kind of badge of shame identifying her or his offense, like the scarlet letter “A” the fictional character Hester Prynne is required to wear as punishment for adultery in Nathaniel Hawthorne’s novel The Scarlet Letter; and/or keeping the offender exposed in a public place under restraint, such as sitting in wooden stocks or being bound to a pillory. Most towns in colonial America had stocks or pillories in their public squares.
More painful and violent public shaming penalties include having to kneel on rice, pebbles, or other objects; having to stand outside balanced on a box during inclement weather; or, in one of the most extreme examples, being tarred and feathered by a community, which was often accompanied by being “ridden out of town on a rail” —being paraded around town sitting on, or tied to, a long wooden pole as an object of shame and derision, before being dumped on the ground outside of town. Native American tribes and Amish communities impose the penalty of “shunning” on offenders, refusing to allow them to participate in community activities or even acknowledging their presence until they are able to restore their status as a community member in some way.
Humans are social creatures, and the sense of self is dependent on the regard of others. Through relationships with others, individuals construct a sense of self. The emotional and psychological pain caused by shaming can be extreme; it can even threaten the sense of personal identity. Shaming penalties are especially painful in cultures in which “saving face” or preserving one’s reputation or place in society has primary importance, such as in China and Japan, where public humiliation has led to suicide.
Such penalties have fallen into disfavor in more modern times as cruel and unusual punishment, or torture, which are prohibited by the U.S. Constitution and the United States Convention Against Torture. To some extent, however, all criminal punishments involve some element of public shaming, as they, to various extents, call public attention to an individual’s offense and preserve a public record of that offense. Further, trials of criminals are open to the public and sometimes even broadcast on television; the resulting widespread media coverage of convicted criminals often serves as a form of public shaming, replacing the former physical stocks and pillories with virtual public squares.
In addition to the general effect of widespread media coverage, more specific forms of modern shaming penalties have included a requirement to publicly identify the crime one has committed by displaying a sign outside one’s home, attaching a bumper sticker on one’s car, standing on a street corner holding a sign, or running an ad in a local paper or on a local billboard. Shoplifters have been ordered to stand in front of stores they have robbed wearing signs identifying them as having shoplifted from those stores. Drunk drivers have been ordered to display special license plates. Public apologies, with advance notice to the media or through letters published in local papers, have also been ordered. Other forms of shaming include debasement of the offender by requiring involvement in a humiliating activity. For example, a man convicted of domestic violence was required to endure his wife spitting in his face. Similarly, a slumlord was required to remain in one of his rat-infested apartments under house arrest.
In U.S.V. Gementera (2004), the Ninth Circuit Court of Appeals upheld a shaming penalty imposed on an individual convicted mail theft, who was required to stand outside of a post office wearing a sign that said, “I stole mail; this is my punishment.” In affirming this penalty, the appellate court held that the shaming sanction met the federal sentencing act’s purposes of deterrence, protection of the public, and rehabilitation of the offender. The court specifically found that such public profession of his crime would emphasize to the offender the significance of that crime to his community and thus serve a rehabilitative, as well as a deterrent, purpose.
Criminal justice scholars have debated the usefulness of shaming penalties. Advantages of such penalties include the lower cost compared to incarceration and satisfaction of a need for community condemnation of a crime. Shaming penalties impose a similar type of moral condemnation as physically removing someone from society via imprisonment, and at a greatly reduced cost. Shaming penalties also offer a sense of empowerment to communities that often feel estranged from the criminal justice system, and even encourage them to work to reintegrate remorseful offenders back into society. Crimes are considered to be not just offenses against a victim but are also offenses against society. Like other criminal penalties, shaming satisfies the needs of both victims and communities for retribution for, or compensation for the harm caused by, a crime; they reset a proper moral balance. Finally, by exposing the offender to public view and by advertising his or her crime to the community, shaming may make the commission of similar crimes by the offender more difficult.
Critics of shaming penalties argue that criminals are without consciences and therefore are incapable of being shamed. Because most criminals are not strongly socialized and therefore do not have the same incentive to maintain a position in society, shaming penalties are useless. Other critics have argued that shaming penalties are too humiliating, violating constitutional principles of individual dignity. Enduring public stigma also detracts from attempts to rehabilitate and reintegrate offenders into society. Individuals who have lost their sense of a respected place in society may be less motivated to attempt to regain such a place. In fact, shaming may prompt some offenders to reject the norms of their society and become more committed to a criminal lifestyle.
Stigmatizing offenders may reinforce existing feelings of being an outcast and looking to criminal activities to strengthen a sense of self-efficacy, and thus may actually serve to increase, rather than decrease, crime. Prominent criminologist John Braithwaite distinguishes between this retributive stigmatization, which counterproductively emphasizes and re-enforces an offender’s criminal identity, and reintegrative shame, which shifts the focus from the offender to the criminal act and its consequences to others. By focusing on the consequences of the crime, the offender’s resulting shame for causing this harm serves as a catalyst, prompting the offender to take responsibility for his or her actions.
Thus, reintegrative shame serves to encourage the offender to change the “script” that labels him or her as a “criminal,” and to work to restore his or her place in society as a responsible citizen. The active responsibility prompted by reintegrative shame in a restorative justice context is a productive contrast to the passive acceptance of punishment imposed by the traditional criminal justice system.
Other critics have observed that American society, with its emphasis on individualism and independence, does not provide an effective environment for imposing effective shaming penalties. Shaming penalties are most effective in interdependent, communal societies that share strong common norms. They seem to have the greatest deterrent and rehabilitative effects when offenders care about being respected by, and included in, such a community, and are allowed an avenue of regaining their former status as community members. Shaming may also be more effective when the emphasis is on evoking a sense of remorse for the harm caused to victims and to a community, rather than humiliating the offender, much like a restorative justice approach.
As the expense of incarceration becomes more of an economic burden on society, alternative sanctions such as shaming penalties will continue to be explored. While the place of shaming penalties within the criminal justice system remains unclear, studying the questions surrounding shaming penalties may provide helpful guidance for shaping future punishment and rehabilitation strategies.
- Braithwaite, John. Crime, Shame and Reintegration. Cambridge: Cambridge University Press, 1989.
- Garvey, Stephen P. “Can Shaming Penalties Educate?” University of Chicago Law Review, v.65/3 (Summer 1998).
- Kahan, Dan M. “What’s Really Wrong With Shaming Sanctions.” Texas Law Review, v.84/7 (2006).
- Karp, David K. “The Judicial and Judicious Use of Shaming Penalties.” Crime & Delinquency, v.44/2 (1998).
- Massaro, Toni M. “Shame, Culture and American Criminal Law.” Michigan Law Review, v.89 (June 1991).
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