Is Sentencing Someone to Public Shaming Constitutional?

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Nov. 15 2012 4:37 PM

Can We Bring Back the Stockades?

The constitutionality of public shaming.

The Scarlet Letter, by Hugues Merle, 1861.
The Scarlet Letter, by Hugues Merle, 1861.

Walters Art Museum (Baltimore/Maryland/USA)/Wikimedia Commons.

Cleveland resident Shena Hardin was caught driving her SUV on the sidewalk to avoid stopping for a school bus. On Tuesday and Wednesday, she served her sentence for the crime: standing on a street corner with a sign that read, “Only an idiot would drive on the sidewalk to avoid a school bus.” Is public shaming a constitutional punishment?

Usually, yes. Public shaming is an integral part of our criminal justice system, although its prominence rises and falls periodically. Many cities have posted the names of drug offenders, deadbeat dads, or public urinators on billboards. Some have required people convicted of drunk driving to affix fluorescent license plates to their cars once they start driving again. Kansas City experimented with broadcasting on a government-owned television channel the names and addresses of men arrested for solicitation. The “perp walk” is a pre-conviction public shaming ritual. Individual judges have ordered offenders to wear signs and shirts, or go door-to-door apologizing to victims of their crimes. Legal challenges to such shaming sanctions typically fail. In 2003, for example, a San Francisco mail thief was ordered to spend eight hours standing in front of a post office wearing a sandwich board that read, “I stole mail. This is my punishment." An appeals court upheld the sentence, arguing that shaming is an unlawful punishment only when imposed for the sole purpose of humiliation. It is acceptable, and even useful, according to the court, as a tool to prevent recidivism. When criminals succeed in overturning their shaming sanctions, it’s often because the judge was too flippant in designing the punishment. A California court in 1993 released a shoplifter from the requirement to wear a T-shirt that read, “My record plus two six-packs equals four years” on the front and “I am on felony probation for theft” on the back.

Public shaming sanctions can get much harsher than the “idiot” sign that Hardin was forced to hold. Before the widespread adoption of sex offender registries, a Seattle-area criminal was required to walk around wearing a T-shirt that read, “I am a convicted child molester.” Others had to post signs on their property warning parents to keep their children away. Memphis Judge Joe Brown allowed victims of theft to take anything they wanted from the robber’s home in full view of the neighbors. (His signature punishment helped get him a television show.) In 1989, the city of Dermott, Ark., ordered parents of children who violated the town’s 11 p.m. curfew to spend two days in a stockade.

The stockade was a popular punishment in the Colonial era, the heyday of public shaming in America. At the time, imprisonment was reserved mostly for debtors and those awaiting trial. Once a suspect was convicted, the judge usually ordered him executed, flogged, or shamed. (Flogging itself involved a shaming element, as the public was invited to watch and often hurled stale eggs and dead animals at the criminal.) Some criminals spent days in the stocks, and Colonial judges sometimes got creative. A Virginia servant convicted of stealing pants was ordered to sit in the stocks with “a pair of breeches about his necke.” Around the time of the Revolution, public shaming began to fade. Most historians believe that urbanization and migration undermined the power of shaming, because people no longer feared the condemnation of their communities. Imprisonment slowly became the punishment of choice, although shaming held on for a time. In the early days of the Republic, states like Pennsylvania and Massachusetts admitted members of the public to prisons to watch the inmates “as if in a zoo.”

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Brian Palmer is Slate's chief explainer. He also writes How and Why and Ecologic for the Washington Post. Email him at explainerbrian@gmail.com. Follow him on Twitter.