Shaming is one of the oldest forms of social regulation and, in the U.S., has long been employed to enforce social order – specifically to fight crime and suppress unacceptable beliefs and practices. Today, there is an apparent rise of public shaming either as an alternative or supplement to incarceration. However, on February 8th, Pres. Obama signed the “International Megan’s Law to Prevent Demand for Child Sex Trafficking” (H.R. 515), the first law in U.S. history in which a special symbol will be placed on a citizen’s U.S. passport to identify that the individual was convicted of a sex crime.
Public shaming was at the core of early America’s moral order. In the 1640s, the Puritan placed people in “stocks” in the village square and they were required to wear a “scarlet letter” — or some other display of their wrongdoing — to cast shame upon themselves. In Williamsburg, VA, thieves were subject to what was known as being “ear-marked.” A convicted person was nailed by the ear to a pillory and, after his sentence was completed, the convict was ripped from the pillory without first removing the nail, thus leaving a permanent scar.
With national independence and the adoption of the Constitution, the Eighth Amendment formally banned “cruel and unusual punishment.”
Nevertheless, public shaming lives on in different ways. In December 2015, Secretary of State John Kerry invoke the role of public shaming to ensure that countries comply with the then newly-adopted Paris climate-change accord. In an interview on NBC’s Meet the Press, he proclaimed: “There’s a lot of pledges. There’s a lot of promises. But there seems to be no mechanism for getting countries to comply other than wagging your finger at them and shaming them. Am I wrong?”
Some parents are using public shaming as an alternative to spanking. Some have posted videos of their kids wearing a sandwich board detailing bad behavior or poor school test results. Teens, especially teen girls, are being shamed on social networking sites like Facebook, Twitter and Vine. The unanswered question is whether public shaming is a form of cruel and unusual punishment?
* * *
Aaron Book, an attorney and legal scholar, reports in a revealing article, “Shame On You: An Analysis of Modern Shame Punishment as an Alternative to Incarceration”: “Virtually no empirical data exists detailing the effectiveness of shaming in deterring crime and reducing recidivism rates; however, ample data suggests that current forms of sentencing are ineffective in punishing and/or rehabilitating criminals.” Book wrote this in 1999 and a lot has changed since then.
Book reveals that criminal shaming had, for nearly two centuries, considerably declined. However, he writes, “Beginning in the mid-1970s, trial judges began to reincorporate shame into their judicial arsenal.” He identifies a handful of examples of this new era: a child molester had to erect a 4′ x 8′ sign in front of his house reading that he was “an admitted and convicted child molester”; one drunk-driver was ordered to affix a sign, in fluorescent letters, to his license plates that read, “convicted dwi,”; and another drunk-driver was ordered to place an advertisement in a local newspaper describing his crime.
For generations there has been an intellectual struggle within the broad jurisprudence community – of police, courts, prisons and politicians who make the laws – whether shaming is a form of probation, punishment or rehabilitation. “Ultimately,” Book concludes, “shame punishment is good for society because it allows offenders to return to productive lives without the stigma of prison on their records, and it provides the public with some tangible evidence that the offenders are paying their debts to society.” But is shaming good for 21st century America?
* * *
Over the last decade, there been a noticeable uptick in court-ordered shaming sentencing. In 2004, the Ninth Circuit court validated – in U.S. v. Gementera – public shaming punishments. In this case, a 24-year-old convicted mail thief was ordered to stand outside of a postal office for 8 hours and wear a sandwich board that read: “I stole mail. This is my punishment.” The local judge found the punishment humiliating but humane, appropriate for rehabilitation. Did public shaming work? A month later the thief stole again and this time his case made it way to the Ninth Circuit. The court found, “much uncertainty exists as to how rehabilitation is best accomplished,” and recidivism rates are “unfortunately extremely high, regardless of the type of punishment.”
A host of shaming incidents from across the country illustrate how a policy of pubic shaming is being implement:
— An Ohio couple was arrested in 2003 for vandalized a nativity statue and were ordered to lead a donkey through the streets carrying a sign that said, “Sorry for the jackass offense” – they also were required to replace the statue.
— A San Francisco mail thief in 2005 was ordered to stand on the post office steps with a sign that read: “I stole mail and this is my punishment.”
— Three Ohio men in 2007 were busted for soliciting an undercover cop and had their 30-day jail sentence suspended if they wore a chicken suit outside a local courthouse.
— A Texas man was convicted in 2010 of stealing $255,000 and was order to repay the money and hold a sign at a busy Houston intersection for five hours every weekend for six years.
— A Colorado juvenile in 2012 was convicted of cutting the hair off a younger girl with a pair of scissor and a judged ordered the juvenile’s mother to cut off her pig-tale.
— An Ohio judge in 2012 gave a woman a choice of going to jail or spending two days standing on a street corner with a sign reading: “Only an idiot would drive on the sidewalk to avoid a school bus.”
These are but a handful of shaming incidents that are on the increase.
* * *
The “war of drugs” may finally be coming to an end as states around the country are revising “illegal” drug prosecution and sentencing practices. Put simply, the costs associated with maintaining the prison-industrial complex may have hit the wall. The anti-drug campaign launched by the Reagan’s four decades is estimated to have costs over $1 trillion for both federal and state/local efforts. More troubling, it doesn’t seem to have worked as states are decriminalizing medical and recreational drugs and there is an epidemic of drug abuse.
Within the context, more states may likely employ shaming techniques to offset prison sentencing. But does it work? One episode is illustrative. A Pennsylvania judge was busted for misusing public funds and a lower court ruled in 2009 that she was send to every state judge a photograph wearing handcuffs and write an apology for her actions.
However, in August 2014, the judge appealed the ruling to the Pennsylvania Superior Court that found: “We must conclude that while a sentencing court has wide latitude to design conditions to assist in efforts at rehabilitation, no condition may be imposed for the sole purpose of shaming or humiliating the defendant… We note that the highest courts in at least five sister states have reached similar conclusions, namely that shaming is not reasonably related to rehabilitation and may in many circumstance overshadow any possible rehabilitative effects that the punishment might otherwise provide.”