Ingenious Punishments Their Object All Sublime

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Ingenious punishments
Their object all sublime

Oct 12th 2006 | WASHINGTON, DC
From The Economist print edition

A vogue for shaming wrongdoers

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ON SEPTEMBER 30th students at the University of Massachusetts threw a toga party. The cops showed up, uninvited. They charged the host, James Connolly, with under-age drinking, making too much noise, and having a keg without a licence. For punishment, he had to put on his toga again and stand in front of the police station for an hour.

Dan Markel of Florida State University reckons that such “shaming punishments” are on the rise. In 2003 a couple of teenagers who defaced a nativity scene in Ohio had to parade through town with a donkey. “The punishment must fit the crime,” explained the judge, Michael Cicconetti. Several cities have aired the names of men caught soliciting prostitutes on “John TV”. In 2004 a federal appeals court agreed that a mail thief could be made to stand outside a California post office wearing a sandwich board. “I stole mail,” it read. “This is my punishment.” In Virginia, if you fail to pay child support, you may find your car wheel-clamped: pink if you are neglecting a girl, blue for a boy.

Many support shaming punishments. Amitai Etzioni of George Washington University has argued that they are a good way to express communal values. Fines, in contrast, imply that you can buy a clear conscience. And shame seems to be a powerful deterrent. Mr Cicconetti says he sees few repeat offenders. Cheerful Hobbesian types want everyone to know who the bad guys are, so that decent citizens can avoid them.

Others are doubtful. According to Mr Markel, shaming punishments undermine human dignity. He suggests alternative punishments that omit the public-humiliation factor. A landlord who flouts the health code, for example, could be made to stay in one of his own slums. And it is true that there is something unpleasant about the desire to see other people humiliated. Remember the matron who objects to Hester Prynne's scarlet letter: “Why, look you, she may cover it with a brooch, or suchlike heathenish adornment, and so walk the streets as brave as ever!”

But voters appear to be comfortable on the high horse. Ted Poe, a former district judge from Texas, made his reputation by issuing a string of embarrassing sentences. He called this “Poe-tic justice.” Once, he sentenced a man who stole pistols from the Lone Ranger (technically, the actor Clayton Moore) to shovel manure in the Houston police stables. In 2004 Mr Poe was elected to the House of Representatives at his first attempt.

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Abandoned O.J. Project Shows Shame Still Packs a Punishing Punch

By Shankar Vedantam
Monday, November 27, 2006; A02

The whole project was pure shamelessness. A controversial former football star, who many believe got off scot-free after killing two people, writes a book about how he might have committed the murders. It was an end zone dance in the worst possible taste. Everyone was outraged but had to concede that O.J. Simpson, once acquitted, was beyond the reach of the law.

But Simpson and his publisher, Judith Regan, were within reach of another powerful tool that is not much used in American society: shame. Facing growing outrage and scorn, News Corp. chief executive Rupert Murdoch canceled the book project last week.

For Stephanos Bibas, a law professor and former prosecutor, the saga was grounds for celebration, because it showed that shame remains a powerful tool in America.

For nearly two centuries, using shame as a weapon against wrongdoing has steadily fallen into disfavor in the United States, even as it continues to be an essential part of social discourse in more traditional societies. After the rise of penitentiaries around 1800, the idea of shaming wrongdoers was replaced by more impersonal forms of punishment such as incarceration.

But in the past decade or two, a number of scholars have become interested in the uses of shame, especially in the criminal justice system. Bibas and others think the steady erosion of shame in U.S. courts and society has proved financially costly to the country, deprived victims of a sense of vindication and kept wrongdoers from feeling remorseful.

"I was very pleasantly surprised to see shame, and the shaming of Rupert Murdoch, triumph over O.J.'s shamelessness," Bibas said. "There are, apparently, some things that still go too far."

Murdoch's withdrawal of Simpson's book and a Fox television special about it scheduled to run during the November sweeps was evidence that shame could be effective where the law was impotent, said Bibas, a law professor at the University of Pennsylvania. There was nothing illegal about the book, but the widespread media coverage of the project and the collective revulsion of the country shamed Murdoch into retreat.

Where shame was once integral to how wrongdoers were dealt with -- offenders publicly whipped, put in stockades and pilloried in Colonial America -- it faded out of the justice system based on the idea that offenders should not be subjected to cruel and unusual punishment. And psychotherapists, including Sigmund Freud on down, showed how shame can damage people.

Bibas doesn't want a return to public floggings and other forms of cruelty, but he does want a way to reattach society's voice of moral outrage to offensive behavior. When someone commits a crime nowadays, society allows offenders never to have to speak directly to victims and their families. Bibas thinks this is why prison sentences are growing longer, but packing offenders off to jail does not give victims the public acknowledgment they seek that they were harmed. Societies that use shame to censure criminals often require such acknowledgment of the offense, along with reparative ceremonies involving the families of both offender and victim.

When those techniques work, as Cornell University law professor Stephen P. Garvey explored in an analysis of shaming punishments, society saves money because offenders do not have to be locked away for eons, victims have a sense of being made whole again and punishment becomes more than retribution -- social pressure from family and peers can shame wrongdoers into remorse in a way that locking them up and throwing away the key cannot.

The idea has many critics, who warn that shaming will lead to violations of dignity and to abuse and vigilante-style justice. Broadcasting the names of married men found guilty of visiting prostitutes through the mass media, as some police departments have done, can harm the men's families as much as the offenders. And sometimes, critics say, it is less important that offenders be remorseful than it is that they be locked away and kept from hurting their victims again.

Garvey and Bibas acknowledge these concerns and say shaming punishments have limitations when it comes to violent crime. But done right, they say, creative punishments have an element not just of justice but poetic justice. One program sent men found guilty of soliciting prostitutes to a "School for Johns," where they received lectures from former prostitutes. Neo-Nazis were made to watch the film "Schindler's List," listen to stories of Holocaust survivors and meet with a preacher they planned to kill. What about having auto thieves wash their victims' cars every weekend? Or have vandals beautify their city?

No one expects that shaming punishments will always lead to a change of heart. University of Chicago law professor Eric Posner pointed out that Murdoch owns tabloids that publish "grotesque" stories such as what meals people on death row are eating, meaning that his retraction of the Simpson book may be less about remorse than damage control.

But even superficial changes driven by shaming can lead to deeper effects. When a 3-year-old hits his brother and his parents make him apologize, the apology may be utterly insincere, but repeated apologies teach the child to internalize the idea that hitting other people is wrong.

"People may do things insincerely, but social psychology teaches us that we conform our beliefs to our actions," Bibas said. "If we have to act in a way that professes repentance and sorrow, we will eventually learn those as values."

http://www.washingtonpost.com/wp-dyn/content/article/2006/11/26/AR2006112600720_pf.html