That has left the academic field largely to critics of shaming like Dan Markel of Florida State University and Martha Nussbaum of the University of Chicago. They each make the distinction between guilt punishments (good) and shame punishments (bad). The idea is that guilt punishments—and here we are back to apologies and restitution—tap into the impulse behind shaming and harness it to better ends. You’re still fighting against the erosion of values that leads to social disorder and decay. But you’re not deploying humiliation to destroy someone’s dignity. Instead, you’re trying to make someone think about what they’ve done wrong, take responsibility for it, and then use that to stitch them back into society. Nussbaum argues, too, that shame focuses on a trait—branding the whole person as deviant—whereas guilt focuses on an act. It’s what you did, not who you are.
This sounds more civilized. And yet the desire to shame hasn’t gone away. Before Ronal Serpas came to New Orleans, he headed the police department in Nashville, where he championed the use of stickers—two-foot-long green ones this time—stating that a narcotics search warrant had been served. (Serpas hasn’t explained why he didn’t just take that approach again in New Orleans.) In 2004, the U.S. Court of Appeals for the Ninth Circuit upheld an order of Judge Vaughn Walker—the gay-rights hero!—sentencing a mail thief named Shawn Gementera to “spend a day standing outside a post office wearing a signboard stating, ‘I stole mail. This is my punishment.’ ” The 9th Circuit said the sandwich-board sentence could be a form of rehabilitation that would help ensure that Gementera would “reassume his duty of obedience to the law.” In the last few years, a smattering of states have ordered up special license plates for DUI offenders. In Ohio, the plates are yellow with red numerals. In Minnesota, they start with the letter W—for whiskey. Last year, in Washington, the legislature considered marking offenders’ license plates with a Z for three years. The Washington bill seems to have quietly died for now, but the argument for such plates—besides shaming—is that other drivers will learn to recognize the telltale plates and know to take extra care. The argument against the plates is that the police may be more likely to stop former drunk drivers, even when they’re not doing anything wrong. And as Markel points out, attaching shame to property can punish people other than the offenders themselves—what about the wife of the drunk driver who has a clean record, but shares her husband’s car? Or the kid who lives in the house with the big green NARCOTICS SEARCH WARRANT sticker.
I’d also argue that shaming is all too unpredictable, uncalibrated, and hard to contain in the viral era of the Internet. Every time a perp walk is splashed across a newspaper’s web site, it becomes future Google fodder, carrying with it the seeds of bad publicity that makes the ritual very different from what it once was. The same is true for sex offender or general criminal registries that are published online—the ease of access increases their power to humiliate. You can argue that the perp walks and the registries are as much about warning and deterrence as they’re about shaming. But mostly I think we’re just too habituated to them to think much about their precise purpose. Last summer, when the French were outraged by Dominique Strauss-Kahn’s perp walk in New York City, Americans shrugged. The perp walk, and more recently the registry, have become part of the wallpaper of American criminal justice system in a way that Gementera’s sandwich board is not.
The 9th Circuit recognized the humiliating power of the Internet in another 2004 case. Arizona’s Maricopa County Sheriff Joe Arpaio—the immigration crackdown guy—installed web cams in a county jail that streamed the daily activities of pretrial detainees over the Internet. “We get people booked in for murder all the way down to prostitution,” Arpaio said. “When those johns are arrested they can wave to their wives on the camera.” The 9th Circuit, however, pointed out that the pretrial detainees hadn’t been convicted of a crime and were in jail after being arrested for a charge as minor as disorderly conduct. The court had no doubt that the web cam would do the detainees harm, calling the exposure “a level of humiliation that almost anyone would regard as profoundly undesirable.”
That’s hard to argue with. But I’d argue it also applies to making Gementera stand outside the post office with his sandwich-board. And I’m not sure the distance between pretrial detention and a conviction for mail fraud—hardly the very worst of crimes—is great enough to justify calling one kind of shaming excessive while keeping the other. Maybe the real problem here is the one that Eric Posner identified: In the end, the people whom the law shames aren’t likely to be the Wall Street fat cats. They’re just the unlucky ones.