Shaming and the "Meh" Factor

Every few years the press discovers  that somewhere in America judges are "shaming" defendants rather than just acting as automatons who hand out the usual sentence:

Though the practice was abandoned in the 1800s, over the last decade judges have been reviving shame-based sentencing in pockets across the country, doling out alternative punishments designed to humiliate the criminal and send a stern message to the public.  Chicago Tribune 2000.

Lately it hasn't been all that unusual either. The Gementera sentence -- taken last month to the Supreme Court -- is one of a growing number of "creative punishments" being handed down across the country by judges who want to use shame or humiliation to deter people from committing further offenses.  Washington Post 2005.

But what's the alternative? In recent years, a number of judges have ordered what amounts to public shaming instead of prison time. Punishments have included shoveling manure, being made to sleep in a dog kennel, or standing on a busy street corner wearing a sign to tell the public of the crime you committed.  NPR 2013.

The news articles almost all follow the same pattern.  They list a series of shaming punishments handed down by various judges.  Then they state how the low born, common hoi polloi love these kinds of punishments.  Finally, a law professor is quoted bemoaning these punishments as inconsistent with normal punishments and therefore violations of the 8th Amendment's prohibition against cruel and unusual punishment.  If they are ever so PC and progressive, sometimes you even hear the words "human rights violations."

Of course, these arguments are spurious.  They make for interesting copy in a slow news cycle and give some few law professors  an issue that they can write papers about and get media attention from, but there's nothing more cruel in these punishments than there is in sending someone to jail.

In theory, sending someone to jail is a shaming punishment. We're all taught five purposes for imprisonment: (1) rehabilitation, (2) disability, (3) teaching the offender not to re-offend, (4) deterring others from offending, and (5) punishment. It's arguable that among these only disability does not involve shaming. The others involve a mixture of actual harm - loss of income, separation from family, inability to go to the local high school football game - with the shame involved from being sent to jail as a sign of societal disapproval. In rehabilitation, teaching an offender not to re-offend, and deterrence of others the shaming is motivational. In punishment only do we find shaming for shaming sake.

Of course, once anything becomes too familiar it loses its shame factor and this has happened with imprisonment.  LawProf does not even consider the shame angle in sending someone to jail because it is the regular way that someone is punished.  And anyone who spends time practicing criminal law quickly comes to realize that for a significant portion of the defendants going to jail is inconvenient or painful (especially when it forces them to go cold turkey), but being locked in jail doesn't shame them any more than they are ashamed to sit at home and watch reality TV night after night.

The same thing would happen if the judge ordered everyone who shoplifted to stand outside the door of the local MegaMart with a placard saying "I'm a thief." At first people would pay a lot of attention to the twenty guys standing outside and most of the offenders would be mortified.  Give it a year or two (probably much sooner) and the public would be ignoring the offenders and most of the offenders would be treating it like an opportunity to stand around and talk to like souls.

So, while shaming may be, and probably is, an excellent motivator for offenders, it must be unusually applied in order to be effective.  Using shaming against someone who has been a repeat offender for the last 25 years is not likely to be effective.  Additionally, using a shaming technique so often that it becomes the expected norm will blunt its effectiveness.  When might shaming work?  First time offenders would seem to be those against whom shaming would have the most affect.  A guy in high school shoplifts? Make him stand in a pink jumpsuit and paper party hat outside the local MegaMart from 10 - 6 Saturday and Sunday handing out pamphlets about how shoplifting harms the community. Will it guarantee that he won't re-offend? No, because nothing can guarantee that.  However, it is bound to have more affect on him and other potential offenders than hiding him in a detention center for the same weekend would.  And the shaming punishments should not be the same every time.  One time it should be the pink jumpsuit at MegaMart.  Another time it should be sitting on a bench in front of the courthouse with a sign saying "I am a THIEF" from 9-5 on a day court is in session. A third time an offender should be required to write a single page apology for driving under the influence and walk door to door handing it to whomever answers the door. etc. Varying the punishment keeps it from becoming usual and ineffective.

Will people scream bloody murder about these punishments? Of course they will.  And why will they scream bloody murder? Because they will notice the punishments and if a punishment is noticed it must be cruel because it actually affects people. Which, of course, is the point of any punishment - to affect people.  They are uncomfortable with these punishments because they notice them and that uncomfort must mean the punishment is wrong.  Better to just lock people in jail where everyone can forget about them.