Justice Action Center
Student Capstone Journal
Project No. 07/08-01
The New Age of
New York Law School
Class of 2008
This paper can be downloaded without
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(re-formatted for increased readability)
Copyright 2008 by Author
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The New Age of
“There can be no outrage, methinks,
against our common nature, whatever be the delinquencies of the individual – no
outrage more flagrant than to forbid the culprit to hide his face for shame; as
it was the essence of this punishment to do.” – Nathaniel Hawthorne,
The Scarlet Letter
What is Scarlet-Letter
Members of society expect punishment to
protect them from harm and to express moral disapprobation.
The most well-known and often used methods of punishment include imprisonment,
fines, probation and community service. Different forms of punishment are
beginning to emerge that challenge conventional notions of what punishment is
In recent years,
has come back in vogue as an alternative to other popular sanctions.
These penalties are designed to humiliate and degrade an offender in public
while inviting some element of public participation.
These sentences reveal an offender’s bad behavior to the public and force him or
her to experience the uncomfortable exposure associated with the public
announcement of his crime.
They have reemerged primarily as a result of society’s skepticism that prison
time, fines and parole do not effectively work to rehabilitate criminals.
These penalties are typically reserved for sex and moral offenses,
commercial offenses, and minor
They are usually imposed on first-time offenders.
They are most likely handed down in state courts because state judges typically
have broader discretion.
Shaming penalties require an offender to publicize his offense to an audience
that, under normal circumstances, would be unaware of it.
As a result of this publicity, the penalties cause the offender to suffer an
unpleasant, and likely painful, emotional experience.
To comprehend what constitutes scarlet-letter punishment, consider these recent
examples of how judges across the county impose these types of penalties: a
judge in Houston, Texas ordered that a warning sign be placed on the front door
of a convicted child molester’s home.
The sign read, “No children under the age of 18 allowed on these premises by
The same judge required a witness who committed perjury to wear a sign in front
of the courthouse that read, “I lied in court. Tell the truth or walk with me.”
Another judge in Houston ordered a man who pleaded guilty to domestic violence
to stand on the steps of City Hall, face lunchtime workers, reporters and
battered women’s advocates, and apologize for hitting his wife.
Authorities in Canton, Ohio and Miami, Florida place the names, addresses and
ages of convicted prostitution
solicitors on a cable television channel.
A state agency in Georgia posts on the internet the names and photos of parents
who are delinquent with child support payments.
Judges in Texas have ordered shoplifters to parade in front of the stores they
robbed, carrying posters admitting their guilt.
A Florida judge sentenced a mother who bought drugs in front of her children to
take a newspaper ad telling the community what she had done.
These are just some of the examples of the newly aggressive approaches by judges
to send a message to offenders, would-be offenders, and the public.
Shaming punishments are not only inflicted
upon individuals. Every state has enacted some form of sex offender registration
Registration requires that convicted sexual offenders provide local authorities
with information regarding their whereabouts and prior criminal history.
These “Megan’s Laws” have been enacted at the state and federal level, which
require released sex offenders to register their home addresses with the states.
Many states publicize this information on websites and through other means.
How did the Concept of
Shaming Punishments Begin?
During the 17th and 18th centuries, the most popular
methods of punishment involved shaming penalties.
At that time, effective deterrence rested upon the shoulders of public
humiliation. Public shaming constituted the most severe punishment and tended to
cause more pain than physical beatings.
Shame punishments led to shunning by the community.
As a result, the threat of shame alone deterred crime and controlled deviant
Shaming sanctions were successful because
of the small size of American communities and intimate social structure in which
members depended upon each other.
Most community members were life-long and the towns were essentially
Shame punishment was based on one’s essential attachment to society.
In fact, at these times, the community was synonymous with life itself.
As society developed, a more humanitarian
approach to punishment evolved. By the 19th century, shaming
sanctions had become “worse than useless.”
One such explanation lay in the metamorphosis of American communities from
small, intimate and tight-knit to urban, sprawling and anonymous.
As a result, the relationships amongst community members began to transform into
more impersonal interactions.
Another possible explanation is the changes in the composition and size of the
The 19th century saw unprecedented population growth, new mobility
Citizens became more mobile and began migrating to large cities defined by
autonomy and individuality.
The breakdown in the sense of community weakened the sensation of suffering that
had accompanied public spectacles of shaming.
The prison system was born as a result of
increasing crime rates and the failure of traditional punishments.
By the 1850’s, confinement had emerged as the new form of punishment and social
control of criminal behavior.
Why Use Shame?
The return to shaming penalties is to some
extent a nostalgic longing for an era when a community and its principles were
so uniform that people could police themselves.
The primary reason for imposing these sanctions is economic. In 2006, there were
approximately 2.26 million people in state and federal prisons.
Prisons are costly and overused.
Today, the costs of imprisonment consume large shares of state budgets.
Another reason used by supporters of these punishments is that imprisonment is
sometimes too harsh of a punishment, and the other major alternative, probation,
is too lenient.
Judges tend not to use fines and community service all that much because they
are “expressively inadequate.”
Fines can be thought of as ambiguous punishment because they make it look like
offenders can buy their way out of harsher punishment.
Community service receives criticism as punishment because it is supposed to be
something civic-minded people do that wins them public praise and esteem.
Shaming penalties, according to their
supporters, express moral condemnation of the offensive conduct far better than
the alternatives. Proponents of scarlet-letter penalties argue that they
effectively succeed in the main goals of punishment – namely, deterrence and
What is the
Relationship Between Shaming and Deterrence?
Supporters argue that shaming can deter
future wrongdoing in three ways. First, these tactics impose some limitation on
the offender’s freedom, for example, by making the offender wear a sign.
Second, they produce an unpleasant emotional experience, which potential
offenders will want to avoid and actual offenders will want to avoid repeating.
Third, the offender may suffer adverse consequences from members of the
community, who may gossip about him or refuse to engage in social intercourse
In my opinion, these arguments are too speculative and
problematic. Even though the criminals may have their freedom restricted, it
will be in such a nominal way that it is unlikely to make a big impact. And this
restriction is nothing when compared with the restrictions imposed on criminals
who are sentenced to imprisonment, and who will be fully deprived of their
liberty. Furthermore, it is unclear to what degree these offenders may suffer
unpleasant emotions. Each person will react differently, which will largely
depend on his community, his status and his past experiences. These effects need
to be measured individually and in this context, it is virtually impossible.
While I do agree that offenders may suffer
adverse consequences from the community, I also find that not everyone cares
about being “accepted.” A community may be so atomized that no one cares about
what other people think about anyone else.
This is very plausible in today’s world, where technology and traveling
abilities help fragment communities and allow individuals to remain more
independent and anonymous. Additionally, when shame does work, it may push an
offender further into criminality.
The penalties may stigmatize or label him as a criminal, which can cause him to
think he needs to behave like criminal.
What is the
Relationship Between Shaming and Rehabilitation?
Another purpose of punishment is
Rehabilitation is meant to forestall future offenses by changing the defendant’s
The rehabilitated offender accepts that what he did was wrong and, out of
respect for the law and the rights of others, no longer thinks it is morally
acceptable to violate either of them.
Thus far, the power of shaming sanctions to rehabilitate has been questionable.
Courts have increasingly struck down these types of penalties after finding that
they are punitive, and not rehabilitative.
Furthermore, the punitive effects of
requiring the offender to publicize his conviction in nearly every aspect of his
life clearly outweigh the rehabilitative effects. These punishments will
humiliate the defendants and cause the public to disassociate themselves from
them. It is important to remember that the primary purpose of probation is to
reintegrate the defendant into society. The humiliation punishments will
frustrate this goal.
Proponents of shaming argue that these sanctions should be upheld because they
are often the mode of punishment chosen by offenders.
This argument must be looked at in context. Society should not rely on the
preference of offenders as a measure of the relative cruelty between
incarceration and shaming.
It is no surprise that criminal offenders are willing to choose shaming over the
other viable option of prison. Such choice is likely based on the duration of
the punishment rather than its intensity or intrinsic cruelty.
Typical shaming punishments have thus far been relatively brief when juxtaposed
against the duration of incarceration sentences.
If prisons were the benchmarks for alternative sanctions, then virtually
anything would be an improvement and worth trying.
People would perhaps be more willing to have two pinkies cut off to avoid having
to spend a year in prison away from their family, but that does not necessarily
mean the state should be in the business of punishing people by cutting off
fingers or that such punishments are less cruel.
Thus, shaming penalties seem far more
attractive to potential prison inmates.
Furthermore, since shaming sanctions are relatively new and rare, offenders who
have never been publicly shamed may discount the cruelty.
Why is Shaming Bad?
Despite the disagreements over the real purposes and effects of retributive
punishment, there is consensus over one thing: punishment should be
proportionate to the offense.
One of the problems with shaming sanctions is that they are difficult to
balance. It is difficult to disseminate information regarding the illegal
activity in a way that is proportional to the severity of the offense.
On one hand, these punishments can be disproportionately too weak on those
offenders who are socially alienated.
In order for these penalties to work, a person has to care about what others
think about him or her. Additionally, there are criminal sub-cultures in which
shaming may become a source of pride.
This cannot be said of the other types of punishment.
the other hand, these types of penalties may be too strong.
Since these punishments invoke a person’s emotions, they can have dire
consequences. They can cause the offenders to avoid the community and alienate
themselves from others.
At the extreme, shame can result in self-destruction, and the person may attempt
to rid those emotions through suicide.
Such case may seem inconceivable, but consider the following news story: In
Georgia, a man was
convicted of drunk driving.
As a condition of his sentence, the judge required that a photograph of the man
appear in the local newspaper.
The man had not told his mother of his conviction.
She saw his picture in the newspaper and left him a note that described the
horrid shame she was experiencing.
Distraught and embarrassed after reading the note, the man committed suicide.
Proponents of shaming
sanctions argue that imprisonment is cruel, degrading and more likely to
“vitiate the reputational stake a person has in resuming a law-abiding life that
These claims warrant scrutiny. There are minimum-security prison facilities
available for the types of offenders for whom shaming punishments are not an
These facilities do not even endeavor to destroy an offender’s basic human
In fact, a substantial part of the prison population is housed in these types of
What are Some Problems
with Shaming as Applied in Today’s World?
From its history, it appears that scarlet
letter sanctioning can successfully control and deter criminal conduct only
under very limited societal conditions, which are virtually nonexistent today.
The rise of the penitentiary and continual use of that institution attests to
the failure of shaming sanctions under modern conditions.
In the shaming context today there are
problems with the public bearing witness to such spectacles. The anonymous,
diverse, impersonal texture of today’s society is not conducive to eliciting
feelings of shame.
The American way of encouraging independence and individuality necessarily
reduces the effectiveness of shaming.
People are wrapped up in their own worlds and are concerned with their own
lives, so it is quite unlikely that they would respond apathetically to such a
public spectacle of shaming.
As one commentator noted about today’s society: “It is doubtful that in today’s
hectic, commuter-world people would congregate to witness someone’s public
shaming – Even a bumper sticker posted on an offender’s car would probably get a
mere glance at best.”
The community is unlikely to react to the public spectacle in a way that will
lead to the emotions and guilt needed for the offenders’ deterrence and
Is Shaming Undignified?
Shaming penalties are cruel, degrading and
They violate an offender’s dignity, which no morally decent state should do.
State enforced shaming authorizes public officials to search for and damage an
Mark Kappelhoff, of the American Civil
Liberties Union, sums up shame punishment by referring to it as “gratuitous
humiliation of the individual that serves no societal purpose at all”.
The supporters of shaming penalties argue
that since the alternative to shame is imprisonment, then shame simply
substitutes one set of indignities for another.
What’s missing from this argument is the fact that shaming encourages others to
bear witness to the offender’s indignities.
Individuals who are imprisoned for a certain period of time are able to remain
relatively anonymous since they do not walk around announcing their convictions
On the other hand, those individuals who are subjected to shaming sanctions
carry with them a public stigma that is not easily forgotten or ignored.
Should Punishment Focus
on Shame or Guilt?
Shaming differs from other methods of punishment in that its effectiveness
depends on the reaction of members of society or in the market to the public
information concerning the offender’s behavior.
Punishment, no matter what form, should be premised on guilt and not on shame.
Shame involves the idea of an audience, whereas guilt involves no such
Guilt focuses on the individual’s particular act of wrongdoing, whereas shame
focuses on the person as a whole.
These emotions also differ in their elicited responses.
Shame prompts one to hide or to strike back at the source of shame.
On the other hand, guilt prompts the person to
try to make amends for the wrongdoing.
Rehabilitation should not depend on the response of other people; it should be
an intrinsic process that an individual experiences from his own emotions. Of
course, eliciting a particular emotional response from a person is not an exact
However, if the state is going to aim at any such response, then it should be
Is This the Beginning
of Shifting Trends?
Dan Kahan, a national expert on shame
penalties, and a well-known proponent of them, recently recanted his position.
He admits that there is no statistical evidence showing that shaming works to
rehabilitate or deter.
Kahan argues that the problem with shaming penalties is that they are deeply
When shaming penalties are deployed, they signal that society has chosen sides
with those who elevate community values over individuality and equality.
He argues that imprisonment is pluralistic, which is why it works so well as a
Persons of all cultures and worldviews can understand it and can appreciate it
as a means of punishment.
Since one of the most well known advocates for shame punishments just renounced
his position, it will only be a matter of time before others will follow his
What are Viable
To fashion an acceptable alternative to
imprisonment, it is necessary to identify a form of punishment that not only
condemns as forcefully as imprisonment, but that also condemns as ambiguously as
Kahan, and Stephen Garvey, an opponent of these penalties, introduced two such
models. A third alternative, therapeutic jurisprudence is a preventive law
Kahan introduced a model of restorative
Restorative Justice is the term given to a variety of different practices,
including apologies, restitution, and acknowledgments of harm and injury, as
well as to other efforts to provide healing and reintegration of offenders into
Under this model, the offender, victim, and representatives of the community
participate in an informal mediation process.
The participants would negotiate an appropriate course of action, which would
typically include some type of apology by the offender and an agreement to
furnish monetary or other types of reparation to the victim.
Proponents suggest that by providing structured environments in which offenders
and victims meet and explain their injuries and hurts to each other, offenders
could acknowledge and explain their bad acts, apologize and make restitution to
victims who could forgive and feel safe again.
Restorative justice programs promote a healing response by creating an
atmosphere of rapprochement and then by initiating a process by which the
offender can help make the victim whole.
These programs emphasize the need to treat offenders with respect and to
reintegrate them into the community.
Additionally, this type of program could be beneficial to victims, who would no
longer be frightened or traumatized by what happened to them.
For these reasons, most people approve of restorative justice because they see
it as “as accentuating, not muting denunciation of offenders.”
Garvey concedes that shaming punishments
may successfully condemn and may even be effective deterrents, but they do
little to educate.
Thus, he introduces a theory of moral reform, which in essence is an educating
The idea behind this theory is that punishments should aim to reflect back on
the offender what he has done to his victim.
Under this model, punishment is seen as a mode of bilateral communication.
The goal of punishment is the offender’s moral education or reform.
This model requires the offender to be treated as a responsible, autonomous
agent and not merely as an object to be manipulated through coercion and fear.
It seeks education, not indoctrination.
It prides itself on treating the offender as a responsible moral agent.
This theory forces the offender to repair
the particular harm he caused, and not to simply provide some general service to
It urges that sanctions be designed in a way that makes an offender experience
the harm he has caused, either directly or vicariously.
The aim is to get the offender to reform himself.
Rather than simply “yelling” at the offender as in the shaming model, punishment
in the educating model is intended to speak to the offender so that he will
learn from what is said.
The other modes of punishment fail to provide such education.
For example, probation may limit what an offender can and cannot do, but it does
not show him why his actions were wrong.
Likewise, community service may introduce the offender to the virtue of helping
others but, again, it does nothing to show the offender why his actions were
Fines simply transfer wealth from the offender to the state without any
explanations of his actions.
Apology plays a major role in the moral education theory. In this model,
however, the emphasis is on the apology and not the shame that might accompany
it when it is given in public.
Thus, the educating model would urge the offender to make the apology in
At the end of the process the offender comes through punishment to understand
the nature of his offense, to experience guilt, and to repent his wrongdoing and
seek to make amends.
Part of the moral education theory is the idea of
which requires that the punishment mirrors the harm caused.
However, Garvey emphasizes that the idea of “an eye
for an eye” should not be construed literally.
As an example, he demonstrates a possible punishment for those convicted of
rape. The offenders should experience the trauma vicariously, by being forced to
listen to the words and accusations of rape victims, and by engaging in
role-playing in which they assume the role of the women they raped.
Another example is to deny a convicted perjurer access to courts for a specified
period of time, with the view that the offender might learn the value of
preserving the courts’ integrity.
Therapeutic jurisprudence is a preventive law model that seeks to alleviate the
need for shaming sanctions. It is an interdisciplinary approach to legal
scholarship and law reform that sees law itself as a therapeutic agent.
It proposes that we be sensitive to the consequences of governmental action and
that we ask whether the law’s anti-therapeutic consequences can be reduced and
its therapeutic consequences enhanced without subordinating due process and
This model contemplates lawyers practicing with an ethic of care and heightened
interpersonal skills while seeking to prevent legal difficulties through
sensitive counseling and advanced planning.
It necessitates increased psychological sensitivity in the attorney-client
relationship, enhanced interpersonal skills, interviewing and counseling
techniques, and approaches for dealing with the emotional issues that are likely
to come up in the legal
The criminal defense attorney informs the client of options and attempts to
persuade the client to consider rehabilitative possibilities.
Therapeutic jurisprudence is committed to client-centered counseling.
The client’s direct involvement in creating a success plan can increase the
likelihood that he will comply with it and benefit therefrom.
All of these models show that there are feasible alternatives to scarlet letter
What are Some Proposed
The simplest solution is to do away with
these shaming practices because they serve no societal purpose. In order to do
this, studies need to be conducted to show that there is little, if any,
correlation between shaming punishments and rehabilitation or deterrence. In
2005, Alon Harel and Alon Klement conducted one such study.
Their research showed that there is an inverse relationship between the rate of
shaming penalties and their deterrent effects.
They found that wide-ranging use of shaming penalties is likely to erode their
effectiveness and that their extensive use as a substitute for traditional
sanctions may undermine their deterrent effects.
Legislatures and judges should be informed
of this so that they can see for themselves that these punishments do not
succeed at one of their primary purposes: deterrence.
It needs to be shown that these types of
sanctions violate the
eighth amendment in that they are cruel and unusual punishments. In the case
Trop v. Dulles, the court stated that the meaning of the
eighth amendment must be drawn from the “evolving standards of human decency
that mark the progress of a maturing society.” Scarlet-letter sanctioning should
be struck down under this standard. As society continues to evolve, so do its
methods of punishment. Society should not sanction a condition that deprives a
man of his dignity by holding him out for public ridicule in every aspect of his
Another possible argument is that shaming
sanctions infringe upon the defendants’
first amendment privacy rights. Thus far, this argument has proven to be
Sentencing judges enjoy broad discretion authorized by statute when crafting
A reviewing court tends to invalidate probation sentences only if it finds the
penalty to be unreasonable, unrelated to the goals of probation, or an abuse of
Additionally, the United States Supreme Court has recognized that probationers
do not enjoy the same degree of constitutional protections as do law-abiding
Although this argument has not yet been successful, it is important to continue
The problem with these shaming tactics is best described by Erwin
Chemerinsky, a prominent law professor: “The real measure of how civilized we
are, is the way we choose to punish people. It is not civilized to tell somebody
you’re going to sit in the stocks and we’re going
to throw stones at you.”
Every country deals with criminals in its own way. We, as the American public,
need to set examples and show that these offenders deserve, and can benefit
from, another chance. We cannot engage in these inhumane punishments, especially
when there is a lack of evidence showing that are effective in deterrence or
Dan M. Kahan, What’s Really Wrong with Shaming Sanctions, 84 TEX.
L. REV. 2075, 2077 (2006).
Ted Poe, Public Humiliation is Effective Deterrent, DALLAS
MORNING NEWS, Apr. 11, 1997,
Nicole Koch, Houston Judge Teaches “Humiliation in Sentencing,”
WICHITA EAGLE, May 22, 1997, at 17A.
HIRSCH, supra note 27, at 39; Sanders, supra note 16, at
Matthew W. Meskell, The History of Prisons in the United States from
1777 to 1877, 51 STAN. L. REV. 839, 842 (1999).
Jan Hoffman, Crime and Punishment: Shame Gains Popularity, N.Y.
TIMES, January 16, 1997, at A1.
at 753; Sanders, supra note 16, at 360.
Markel, supra note 4, at 1401.
Tony Allen-Mills, American Criminals Sentenced to Shame, TIMES
(London), Apr. 20, 1997, at 23.
767; June Price Tangney, Recent Advances in the Empirical Study of
Shame and Guilt,
28 AM. BEHAV. SCI. 1132, 1142 (1995).
DAVID B. WEXLER AND BRUCE J. WINICK, ESSAYS IN THERAPEUTIC JURISPRUDENCE
(Carolina Academic Press 1991).