SHAMING PUNISHMENTS

Convicted of drug distribution, Takeisha Brunson—a twenty year old with a lengthy string of prior convictions—might ordinarily have been sentenced to a significant prison term. But the judge in her case decided to try an alternative sanction: shame. As a condition of probation, the judge ordered Brunson to place an advertisement in a local newspaper announcing, "I purchased drugs with my two kids in the car." Brunson objected to the sentence as "hard," yet she readily accepted it over more jail time and the certain loss of her children.

As innovative as it was, the use of shame in Brunson's case was by no means an isolated occurrence. Courts in New York, Texas, and other states now order drunk drivers to display brightly colored "DUI" bumper stickers. In Florida and Oregon, judges order nonviolent sex offenders to post warning signs on their property. In Massachusetts, men who are delinquent in their child support payments find their pictures displayed on subways and buses. A federal judge in Washington, D.C., ordered a lobbyist convicted of illegal campaign contributions to compose a narrative on his crime and to distribute it to some two thousand members of his profession. In all these instances and in many others, judges are relying on the pain of public humiliation to produce the deterrent effect of short prison terms at a fraction of the cost.

The widespread advent of shaming sanctions is one of the most significant developments in American criminal justice since the early 1990s. Before then, sentences that included elements of humiliating publicity were rarely imposed and when noticed at all, were typically reported as amusing spectacles. (In one well known case (People v. McDowell, 130 Cal. Rptr. 839 (1976)), a court ordered a man convicted of purse snatching to put taps in his shoes to alert potential victims.) But by the end of the 1990s, such sentences had emerged as a highly visible, if still unorthodox and controversial, alternative to jail for serious, but nonviolent, offenders. No longer dismissed as vulgar curiosities, punishments like Brunson's now command the serious attention of criminal justice experts and have won cautious endorsements from mainstream organs of public opinion such as the New York Times.

The movement toward shaming in American criminal justice raises many important questions. What are the precedents for such sanctions? What explains the contemporary interest in them? What forms do those sanctions typically take? What legal issues attend the imposition of them? And most important of all, is shaming criminals a just and sensible policy?

Historical antecedents: corporal punishments and imprisonment

The wave of shaming sanctions since the mid-1990s is not America's first experience with humiliation as a form of punishment. Indeed, the infliction of shame played a central role in the historical development of both corporal punishment and imprisonment.

Colonial Americans relied on a rich variety of corporal punishments, from the pillory to the whipping post to the ducking stool. Publicly inflicted in a highly ceremonial fashion, these sanctions were geared to inflict humiliation as much as physical pain. As Adam Hirsch has noted, "The sting of the lash and the contortions of the stocks were surely no balm, but even worse for community members were the piercing stares of neighbors who witnessed their disgrace and with whom they would continue to live and work" (p. 34).

Such punishments had largely fallen out of favor by the early nineteenth century and were overtaken by imprisonment as the dominant punishment for noncapital crimes. This shift was animated by two changes in social conditions. The first was the loosening of the tight communal bonds that had characterized colonial life. As American communities grew and became more impersonal, the disgrace of corporal punishment receded. Hirsch points out that "[t]he threat of a session on the pillory was less daunting when performed before persons with whom offenders were unacquainted, and with whom they need have no further personal contact" (p. 38).

The second change was the democratizing of American society. The Revolution unleashed a passion for equality that impelled Americans to root out all perceived vestiges of social hierarchy from within their institutions. Corporal punishment was targeted for reform because it was perceived to be distinctive of hierarchical relationships. The infliction of acute physical pain was the way that sovereigns disciplined their subjects, husbands their wives, parents their children, and masters their servants or slaves. As such, it rankled Americans' republican sensibilities for states to use this same mode of discipline to punish citizens, even the errant ones who committed crimes.

The advent of the prison responded to both of these changes. The dissipation of community life in early America was accompanied by growing devotion to individual liberty. Accordingly, the threat of liberty deprivation seemed a natural replacement for the threat of status deprivation formerly associated with corporal punishment. In addition, because imprisonment expressed what citizens of a republic shared—their liberty—rather than any settled social distinctions that set the punisher and the punished apart, imprisonment struck nineteenth-century Americans as more in keeping with the principles of republican self-government.

It would be simplistic, however, to view imprisonment as reflecting the complete dissipation of shame as an element of criminal punishment. Precisely because liberty was so intensely and universally valued, imprisonment was viewed by nineteenth-century Americans as an effective instrument for inducing shame even in a society of strangers. Early prisons were thus structured to maximize the public humiliation of offenders, who were "put . . . on display as if in a zoo" (Hindus, p. 101). It is more accurate, then, to see the shift from corporal punishment to imprisonment not as an unqualified repudiation of shame but rather as an adaptation of it to new social conditions.

Contemporary impetus: the search for an expressively appropriate alternative sanction

The renewed attention to shame as a form of punishment reflects two factors. One is the excessive reliance of American jurisdictions on imprisonment for nonviolent offenses. The other is political resistance to fines and community service, alternatives to imprisonment that many see as insufficiently expressive of moral condemnation. Judges have been drawn to shaming punishments as a potentially cost-effective and expressively appropriate alternative to imprisonment.

The United States has long been thought to rely excessively on imprisonment. Incarceration might be the only option for many violent offenders, including murderers, rapists, and armed robbers. But they make up less than half of the American prison population. The remaining inmates have engaged in nonviolent offenses—from larceny to fraud to drug distribution to drunk driving. Nearly half of those individuals, moreover, are serving terms of less than two years. Criminal justice experts have long advocated alternative sanctions for these offenders on the grounds that they need not be incapacitated for public safety and that the short prison terms they receive deter no more effectively than less expensive fines and community service dispositions.

Notwithstanding this expert consensus, however, the call for alternative sanctions has fallen on deaf ears. Over the past two decades, prison sentences have been dramatically lengthened for many offenses (including minor drug crimes) and extended to others (such as federal whitecollar crimes) that had traditionally been punished only with fines and probation. Large fines have also become common—especially in federal criminal law—but almost exclusively as supplements to imprisonment, not as substitutes for it. Similarly, community service is now a common disposition but mainly as an additional punishment for offenders who would otherwise have received straight probation. Thus, neither of the so-called alternative sanctions has succeeded in replacing imprisonment in any significant degree.

Because the argument for alternative sanctions has been a prominent part of crime policy debates for nearly two decades, it is implausible to attribute the unpopularity of fines and community service to public ignorance. A more satisfying explanation is that these conventional alternatives fail to satisfy the public's demand for punishments that effectively express society's moral condemnation of crime.

As the philosopher Joel Feinberg has observed, an imposition must do more than make an individual suffer before we recognize it as a punishment. It must also be understood to express moral disapproval of the individual who bears it. A person can lose just as much liberty, for example, in the military as she can in prison. The reason that only imprisonment and not conscription is regarded as punishment is that against the background of widely shared conventions only imprisonment expresses society's authoritative moral condemnation.

Because the public expects punishments to express condemnation, the political acceptability of various forms of punishment will reflect their expressive power. In American society, imprisonment expresses condemnation with unmistakable clarity. Because liberty is such a powerful symbol of what individuals are due, taking it away leaves no doubt about society's condemnation of a criminal wrongdoer. This has been true of imprisonment, moreover, since its inception in the nineteenth century, when Americans turned to it as a gesture of disapprobation more fitting to a republic than was corporal punishment.

Fines, in contrast, condemn much more ambiguously. When combined with a term of imprisonment, it is clear that they are being imposed for doing what is morally forbidden. But when fines are used as a substitute for imprisonment, they sometimes suggest that society is assigning a price to the regulated behavior. Such a connotation is inconsistent with moral condemnation: while we might believe that charging a high price for a good makes the purchaser suffer, we do not condemn someone for buying what we are willing to sell. The sensibility that fines are morally neutral "price tags" seems to lie at the heart of resistance to fines among legislators, judges, sentencing commissioners, and ordinary citizens.

Community service also fails to express condemnation unambiguously. We do not ordinarily condemn persons who educate the retarded, install smoke detectors in nursing homes, restore dilapidated low-income housing, and the like; we admire them. Accordingly, when judges order offenders to engage in such services, members of the public have difficulty accepting that the law takes the underlying conduct seriously. In addition, by saying that such services are fit punishments for criminals, the law inadvertently insults both those who perform such services voluntarily and those whom the services are supposed to benefit. The dissonant connotations of community service as a punishment explain why it has made so little headway as an alternative to imprisonment.

Shaming punishments, in contrast, appear to be making much more headway. It is not the case that all offenders who receive shaming penalties would otherwise have been incarcerated, but many of them would have been. Among the offenses for which shaming penalties are now used are drunk driving, larceny, embezzlement, minor assaults, burglary, perjury, toxic-waste dumping, and drug distribution. When used for crimes such as these, shaming penalties free up imprisonment resources for offenders who more urgently demand incapacitation.

But shaming penalties are also emerging as a serious rival of imprisonment because they do something that conventional alternative sanctions do not: express appropriate moral condemnation. Such penalties, one court explained, "inflict disgrace and contumely in a dramatic and spectacular manner" (Goldschmitt v. State, 490 So. 2d 123, 125 (Fla. Dist. Ct. App. 1986)). Thus, like imprisonment but unlike fines and community service, shaming penalties supply an unambiguous and dramatic sign of the wrongdoer's disgrace. Insofar as shaming penalties do successfully convey condemnation, substituting them for imprisonment does not invariably offend widespread expressive sensibilities.

A taxonomy of contemporary shaming punishments

American courts have fashioned a wide variety of shaming punishments. Although categorizing them risks understating their diversity, these penalties can be grouped into four classes: stigmatizing publicity; literal stigmatization; self-debasement; and contrition.

Stigmatizing publicity is the most straightforward. Penalties in this class attempt to magnify the humiliation inherent in conviction by communicating the offender's status to a wider audience. Some municipalities, for example, publish offenders' names in newspapers or even display them on billboards, a disposition that is especially common for men convicted of soliciting prostitutes. Other jurisdictions broadcast the names of various types of offenders on community-access television channels.

Literal stigmatization is just that—the stamping of an offender with a mark or symbol that invites ridicule. Some judges order petty thieves to wear T-shirts announcing their crimes. Others achieve the same effect with brightly colored bracelets that read "DUI Convict," "I Write Bad Checks," and the like. One judge ordered a woman to wear a sign declaring "I am a convicted child molester."

Less dramatic but even more common are penalties that attach stigmatizing marks to property. Some jurisdictions now require persons guilty of drunk driving to display special license plates or bumper stickers. Courts have also ordered those convicted of sexual assaults and other crimes to post signs at their residences warning others to steer clear.

Self-debasement penalties involve ceremonies or rituals that publicly disgrace the offender. In a contemporary version of the stocks, for example, some communities require offenders simply to stand in public spaces (such as the local courthouse) with signs describing their offenses. More imaginative forms of self-debasement attempt to match the penalty to the character of the offense. A judge in Tennessee orders convicted burglars to permit their victims to enter their homes and remove items of their choosing. In New York, a slumlord was sentenced to house arrest in one of his rat-infested tenements (where tenants greeted him with the banner, "Welcome, You Reptile!"). Hoboken, New Jersey, requires Wall Street brokers (and others) who urinate in public to clean the city's streets. This is only a small sample; self-debasement sanctions are as diverse and particular as the crimes that they are used to punish.

Contrition penalties come in two forms. The first requires offenders to publicize their own convictions, describing their crimes in first-person terms and apologizing for them. These penalties combine stigmatizing publicity with an element of self-debasement; the sincerity of the offenders' remorse seems largely irrelevant.

Another form of contrition is the apology ritual. In Maryland, for example, juvenile offenders must apologize on their hands and knees, and are released from confinement only if their victims and government officials are persuaded that their remorse is sincere. Other jurisdictions use community-based sanctions that include public apologies and appropriate reparations. Because many of these penalties contemplate genuine rapprochement, apology rituals seem to be used primarily in cases in which the offender is connected to the victim by family or close community ties.

Legal issues

Shaming punishments have been subjected to two sorts of legal challenges, one constitutional, the other nonconstitutional. The constitutional challenge asserts that shaming punishments are "cruel and unusual" for purposes of the Eighth Amendment. This is a difficult claim to establish insofar as shaming is typically used as an alternative to a prison sentence, which tends to visit just as much humiliation on an offender as shaming but which adds a variety of other hardships. Unsurprisingly, all the courts that have considered Eighth Amendment challenges to shaming have rejected them (e.g., People v. Letter-lough, 613 N.Y.S. 2d 687, 688 (1994), reviewed on other grounds, 631 N.Y.S. 2d 105 (1995); Lindsay v. State, 606 So. 2d 652, 657 (Fla. Dist. Ct. App. 1992); Ballenger v. State, 436 S.E.2d 793, 794–795 (Ga. 1993); State v. Bateman, 771 P.2d 314, 318 (Or. 1989); Goldschmitt, 490 So. 2d at 125–126.)

The nonconstitutional challenge is that judges lack the statutory authority to impose shaming punishments. This claim has proven relatively more successful. Typically, judges order shaming punishments as a condition of probation. Although sentencing statutes tend to vest judges with wide discretion to determine whether to grant probation and on what terms, they ordinarily require that such a sentence conduce to rehabilitation. Some appellate courts have held that shaming is thus an inappropriate probation condition because it is geared toward "punishing" rather than "rehabilitating" the offender (People v. Meyer, 680 N.E.2d 315 (Ill. 1997); State v. Burdin, 924 S.W.2d 82 (Tenn. 1996); People v. Letterlough, 631 N.Y.S.2d 105 (1995).) Paradoxically, in jurisdictions in which sentencing judges lack the authority to impose shame as a condition of probation, those judges might be more inclined to sentence offenders to prison, an unambiguously punitive disposition that likely impedes rehabilitation more than a shaming sentence does.

In practice, appellate decisions holding shame to be outside the scope of a sentencing judge's authority is not a major obstacle to the use of shaming punishments. Because it is not constitutional in nature, this limitation in judicial authority can be remedied by a statute expressly authorizing judges to shame offenders. Moreover, offenders typically prefer shaming punishments to imprisonment. In most jurisdictions, the consent of the offender to a shaming punishment in lieu of imprisonment effectively immunizes his or her sentence from appellate review. Thus, judges have continued to impose shaming sanctions on consenting offenders even in states in which appellate courts have deemed shame to be outside the sentencing judge's statutory authority.

Policy issues

The most important questions posed by the advent of contemporary shaming penalties are normative ones. Criminal justice experts have engaged in a lively debate over whether such punishments are effective and just.

Deterrence. Not surprisingly, the issue that has provoked the most dispute among policy analysts is whether shaming punishments are likely to be effective in deterring criminality. The best answer is that it is simply too early to say. Shaming punishments are still too new to have been subjected to rigorous empirical study. But at least one such study is well underway. With the cooperation of the Australian government, criminologist John Braithwaite has organized a large-scale experiment involving hundreds of convicted offenders who have received shaming sentences. The results of this study should help to bring the deterrence debate closer to a definitive resolution.

But because judges must decide what punishments to impose in the meantime, other analysts continue to present pragmatic conjectures on the likely effectiveness of shame. Shame proponents argue that shaming penalties are likely to deter for the same reason that other penalties, including imprisonment and fines, deter: because they hurt. Those who lose the respect of their peers can suffer a crippling diminishment of self-esteem. Moreover, criminal offenders are as likely to be shunned in the marketplace as they are in the public square, leading to serious financial hardship.

Shame skeptics question whether the threat of shame can effectively deter misconduct in modern urbanized societies, where social bonds are relatively loose and impersonal. The perceived inefficacy of shaming, they note, played a critical role in the shift from corporal punishment to imprisonment in nineteenth-century America.

Shame proponents acknowledge that shame may no longer be as potent a motivator as it was in colonial times, but assert that it would be a mistake to infer that that modern social conditions have vanquished shame altogether. A corporate executive deciding whether to authorize toxic waste dumping might not care that much what an auto mechanic in a remote part of town will think of him if he is caught and word of his offense is broadcast to the community at large. But he probably cares a lot about what his family, his colleagues, his firm's customers, his neighbors, and even the members of his health club think. Thus, the prospect of being disgraced in their eyes, shame proponents argue, continues to furnish a strong incentive—psychological, economic, and otherwise—to avoid criminality.

Critics also argue that shaming punishments are likely to deter unevenly across offenses. It is plausible to think that shaming will be less effective for offenses typically committed by the poor and disaffected, for example, than for offenses more likely to be committed by middle-class or affluent individuals, for whom the reputational cost of conviction is likely to be the largest.

Proponents respond that the selective efficacy of shame supplies a reason only to be selective about the use of shaming penalties, not to reject them wholesale. Even if many potential drug dealers and muggers are shameless (a proposition that not all shame advocates would concede), it seems unlikely that all potential drunk drivers, embezzlers, statutory rapists, tax evaders, and toxic-waste dumpers are.

Individual dignity. The critics of shaming punishments also invoke the value of individual dignity. It is inappropriate, they argue, for the law deliberately to humiliate or degrade anyone, even criminal offenders.

In proponents' view, the dignity objection ignores the practical consequences of denying judges the authority to shame. Shaming punishments are an alternative to imprisonment. Imprisonment also humiliates and degrades; indeed, the power of liberty deprivation as a symbol of the offender's sunken status is exactly what explains the public's stubborn preference for imprisonment over less expressive alternatives such as fines and community service. Moreover, as a practical matter, imprisonment imposes a host of indignities that shame cannot hope to rival, from physical confinement to the exposure of private bodily functions to physical violence at the hand of other inmates.

Because shaming penalties are typically imposed as a condition of probation, offenders can opt for imprisonment over shaming if they prefer by declining to accept probation on such terms. Unsurprisingly, offenders rarely if ever choose jail over shame. Critics who object to shame as contrary to individual dignity, the proponents point out, find themselves in the paradoxical position of arguing that society must disregard the individual offender's own preferences in order to treat him or her with respect.

The most sophisticated reply to this defense of shaming treats "dignity" not as an individual good only but as a public one as well. According to this argument (Whitman), shaming punishments—particularly in their most dramatic and ritualistic forms—risk creating a public appetite for degradation that imprisonment, because of its relative low visibility and antiseptic profile, does not risk creating. The result of adding shame to the schedule of criminal punishments, these critics fear, will be a less dignified regime of criminal administration, and ultimately a less civilized tone of public life.

Equality. The critics and advocates of shaming also disagree about whether this form of punishment is consistent with the value of equality. Like fines and community service, shaming penalties are not suitable for all offenders. Shaming punishments probably will not be nearly as effective for some offenders as they would be for others, including white-collar ones. Even more important, some offenders require incapacitation and not just condemnation. Making what is probably the most compelling objection to shaming, critics argue that it violates equality to punish these offenders with imprisonment while merely shaming white-collar or other nonviolent offenders who commit crimes of equal moral culpability.

Shaming proponents point out that we can assess the equivalence of punishments along multiple dimensions, including their expressive power, their regulatory effect, and their painfulness. To indict a particular alternative sanction on grounds of equality, then, requires showing not only that that sanction differs in one or more of these ways from imprisonment but that the difference is morally relevant.

Expressive significance is one dimension of equivalence that clearly matters from a moral point of view. Fines and community service, for example, do not express condemnation as clearly as imprisonment does; because condemnation is essential to punishment, imprisoning one offender while ordering another equally culpable one to pay a fine or to perform community service creates an objectionable form of inequality. Corporal punishment has also been understood to express inequality because against the background of historically rooted social norms, this mode of discipline connotes the offender's natural or social inferiority.

Shaming, its advocates contend, does not suffer from either of these defects. It clearly does express condemnation; that is exactly why it is succeeding in replacing imprisonment for certain offenses. Yet shaming does not express hierarchy. The particular sorts of shaming penalties now being enforced by American judges are free of any historical association with slavery or other forms of inequality.

Regulatory effect is another dimension of equivalence that clearly matters. But again, at least according to the shaming advocates, there is little reason to believe that shame will not be roughly as effective in deterring crime as the short terms of imprisonment that nonviolent offenders would otherwise likely receive.

Finally there is the dimension of painfulness. It seems plausible to think that even short terms of imprisonment are more painful than dramatic shaming rituals. But shaming advocates deny that this inequivalence matters from a moral point of view. The idea that the justice of punishment should be measured in the currency of pain is a recognizable form of retributivism, but it is surely the one that has the least to recommend it. Suffering, abstracted from all else, should not be a goal of punishment. If shaming is good enough from expressive and deterrence points of view, shaming advocates conclude, let's just get on with it and not worry about whether we are hurting criminals enough.

Dan M. Kahan

See also Deterrence; Restorative Justice; Retributivism; Sentencing: Alternatives.

BIBLIOGRAPHY

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——. "Shame and Modernity." British Journal of Criminology 33 (1993): 1–19.

Braithwaite, John, and Mugford, Stephen. "Conditions of Successful Reintegration Ceremonies." British Journal of Criminology 2 (1994): 139–160.

Feinberg, Joel. "The Expressive Function of Punishment." In Doing and Deserving: Essays in the Theory of Responsibility. Edited by Joel Feinberg. Princeton, N.J.: Princeton Press, 1970. Pages 95–121.

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Hindus, Michael S. Prison and Plantation: Crime, Justice, and Authority in Massachusetts and South Carolina, 1767–1878. Chapel Hill: University of North Carolina Press, 1980.

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Hoffman, Jan. "Crime and Punishment: Shame Gains Popularity." New York Times, 17 January 1997, page A1.

Kahan, Dan M., and Posner, Eric A. "Shaming White-Collar Criminals: A Proposal for Reform of the Federal Sentencing Guidelines." Journal of Law and Economics 42 (1999): 365–391.

Kahan, Dan M. "What Do Alternative Sanctions Mean?" University of Chicago Law Review 63 (1997): 591–653.

Massaro, Toni M. "Shame, Culture, and American Criminal Law." Michigan Law Review 89 (June 1991): 1880–1944.

——. "The Meanings of Shame: Implications for Legal Reform." Psychology, Public Policy, and Law 3 (1997): 645–704.

New York Times. "Alternative Sentencing." New York Times, 20 January 1997, p. A16.

Whitman, James Q. "What's Wrong with Inflicting Shame Sanctions?" Yale Law Journal 107 (January 1998): 1055–1092.