When Is It OK To Shame Drunk Drivers and Wall Street Fat Cats?

Murder, theft, and other wickedness.
Feb. 22 2012 6:11 PM

Shame on You!

When is it OK to humiliate thieves, drunk drivers, or Wall Street fat cats?

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Ronal Serpas quickly changed his mind about posting these stickers on houses that had been subject to drug searches

Courtesy Sentencing Law and Policy

Earlier this month, New Orleans Police Superintendent Ronal Serpas brought down the wrath of civil libertarians by telling his cops to start putting plate-sized orange stickers on houses that they’d searched for drugs. The crazy thing about Serpas’ idea was that the cops wouldn’t have to make an arrest or find drugs to smack a sticker on a house—all they’d need was an anonymous tip and a quick investigation of the home. Cue the protests: The ACLU of Louisiana called the stickers a “scarlet letter tattooed onto the homes of otherwise innocent people, giving them no presumption of innocence.” When Serpas backed down last week, saying the stickers wouldn’t work without “widespread community support,” the Times-Picayune editorial page expressed relief that he’d scrapped a “dreadful idea.”

Emily Bazelon Emily Bazelon

Emily Bazelon is a Slate senior editor and the Truman Capote Fellow at Yale Law School. She is the author of Sticks and Stones.

That’s right, of course: It’s easy to see how one neighbor with a beef against another could have called up Crime Stoppers in hopes of using the stickers to settle a score. It’s an idea too easily abused to have legs. And by targeting people whom the cops didn’t even have grounds to arrest, Serpas veered into netherworld territory: it sounds more like North Korea than New Orleans. But what about other forms of shaming? Is it ever acceptable or even worthwhile to use shame as a form of punishment, and if so, when?

Shaming, of course, is as old as the public stocks or the pillory. (The Crimes Act of 1790, for example, decreed that anyone convicted of perjury had to stand in the pillory for an hour.) By 1839, however, Congress had abolished the punishment, and shaming started to be seen as primitive and out of fashion, even if it was never entirely abandoned. Then in 1989, the Australian criminologist John Braithwaite came up with a theory that distinguished “stigmatic shaming,” which he argued shredded ties between offenders and society, and “reintegrative shaming,” which he said could bring the offender back into society. To me, reintegrative shaming sounds a lot like restorative justice—the attractive idea that a teenager who shoplifts, for example, should be called to account by apologizing to the storeowner and doing some form of restitution (stacking boxes, maybe).

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For a while, the idea of stigmatizing culprits through shame got some play among academics. In the 1990s, Dan Kahan and Eric Posner, law professors at Yale and the University of Chicago, argued for shaming as an alternative to prison. It could be cheaper and more effective than just locking people up. Kahan and Posner floated the delectable idea of shaming nonviolent white-collar defendants—the Wall Street types who fleece their customers or companies. The insight was that shaming had a particular power—exposing the wrongdoer to the public gaze was different from hiding him behind prison walls or imposing a fine he could quietly pay. Posner and Kahan could point to examples where this type of shaming had already been tried. In Cincinnati, a corporate executive had to write an apology published in newspaper ads after his company put cancer-causing chemicals into the local groundwater. Elsewhere, a slumlord was sentenced to house arrest in one of his own rat-infested buildings. Kahan and Posner proposed that Congress should explicitly provide for such punishments, as a cheaper form of deterrence.

But then they got off the bus. Posner decided that shaming punishments weren’t reliable. Often the wrong people are targeted, he argued, or the penalty isn’t calibrated to the offense. How do you know, for example, how many years of prison the embarrassing newspaper ad or the rat-infested house arrest is worth? The uncertainty meant that shaming wasn’t actually a good deterrent. Kahan, for his part, abandoned shaming for being too partisan: Choosing these punishments means siding with people who care about community values over people who care about individual equality. When I emailed with Kahan this morning, he said he’d become less interested in shaming because the debate about it had become “nonserious ideological theater.”