Tuesday, December 20, 2005

Shaming as Legitimate Punishment

Last month the Supremes denied cert in U.S. v. Gementera, a 9th Circuit case that upheld a judge's decision to shame Shawn Gementera by making him wear a sign that said, "I stole mail. This is my punishment." outside a Post Office.

The district court was a bit more overt in its intentions when it spoke from the bench, saying,
"[H]e needs to understand the disapproval that society has for this kind of conduct, and that’s the idea behind the humiliation. And it should be humiliation of having to stand and be labeled in front of people coming and going from a post office as somebody who has stolen the mail."

In its written order, the court was a bit more circumspect:
[the court’s goal was not] “to subject defendant to humiliation for humiliation’s sake, but rather to create a situation in which the public exposure of defendant’s crime and the public exposure of defendant to the victims of his crime” [will serve the purposes of] “the rehabilitation of the defendant and the protection of the public.”

The Circuit court found that the punishment was rehabilitative, served as a general deterrent, and that the specifics of the punishment were reasonably related to the rehabilitation.

Smarter folks than I have written on the issue, but after all the ivory tower talk is done, I'm still in favor of shaming as punishment.

I think shaming would be much more effective in instilling a sense of "I really don't want put myself in this situation again" than probation or community service or fines. And in my world, a punishment that included shaming would not stay on a person's record. Shaming may last hours or days, but it would not be a lifetime albatross around the neck of a kid who did something stupid.

Interestingly, shaming is more often seen in sexual or quasi-sexual matters, like public letters of apology for urinating in public (which is charged as indecent exposure around here) and "John lists" like Chicago has for accused solicitors and Minneapolis has for convicted ones. This is probably because legal shaming for sexual/body matters fits in so well with our Judeo-Christian sex/body shame and why this form of shaming can be so effective - perhaps too effective.

Also, shaming would work only for relatively minor offenses - shaming for serious crimes would have to be in addition to other punishment, which would tend to make the 'punishment' of the shaming less effective on the person being punished.
However, the bigger problem with shaming for serious offenses is that it would encourage vigilantism; instead of inviting 'mere' opprobrium, the likelihood of violence would be too great. From the punished person's perspective, shaming for serious offenses would be tantamount to outlawry and would serve to banish the person from society rather than to re-integrate them into society with an object lesson in what's acceptable and what's not.

There is also a point where shaming starts to shade into retribution/eye-for-an-eye punishment. (For ivory tower folks and retribution apologists, that's "congruent satisfaction")
Punishments like having to spend the night outside like you made the kittens you abandoned spent the night outside, or having to spend 30 nights in a doghouse because that's where you put your 8-year old are not so much shaming as a judicially enforced lesson in empathy. Once again, I think having the punishment fit the crime has some legitimacy with regard to relatively minor offenses, but I don't think anyone would argue that sodomizing a cop with a mop handle will make him any more empathetic toward people in his custody and care.

Then again, maybe its because shaming would be such an effective punishment against a nice middle class kid like me that I think it would be effective for a broader range of subjects.

What do you think?



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Anonymous Casey C said...

I absolutely loved your article, and am going to borrow a quote from it for an essay. I love how you defended your points and such. I was looking around google to help with an essay about scarlet letter punishment and today's society and I found this. Thanks so much! It will help me with my essay saying that shame is an ethical punishment!


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