Shame on You!
When is it OK to humiliate thieves, drunk drivers, or Wall Street fat cats?
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.”
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).
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.”
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.
Emily Bazelon is a Slate senior editor and writes about law, family, and kids. Her forthcoming book, Sticks and Stones: Defeating the Culture of Bullying and Rediscovering the Power of Empathy and Character. Find her at firstname.lastname@example.org or on Facebook or Twitter.