Shaming Punishments

The renewed attention to shame as a form of punishment reflects two factors. One is the excessive reliance of American jurisdictions on imprisonment for nonviolent offenses. The other is political resistance to fines and community service, alternatives to imprisonment that many see as insufficiently expressive of moral condemnation. Judges have been drawn to shaming punishments as a potentially cost-effective and expressively appropriate alternative to imprisonment.

The United States has long been thought to rely excessively on imprisonment. Incarceration might be the only option for many violent offenders, including murderers, rapists, and armed robbers. But they make up less than half of the American prison population. The remaining inmates have engaged in nonviolent offenses—from larceny to fraud to drug distribution to drunk driving. Nearly half of those individuals, moreover, are serving terms of less than two years. Criminal justice experts have long advocated alternative sanctions for these offenders on the grounds that they need not be incapacitated for public safety and that the short prison terms they receive deter no more effectively than less expensive fines and community service dispositions.

Notwithstanding this expert consensus, however, the call for alternative sanctions has fallen on deaf ears. Over the past two decades, prison sentences have been dramatically lengthened for many offenses (including minor drug crimes) and extended to others (such as federal whitecollar crimes) that had traditionally been punished only with fines and probation. Large fines have also become common—especially in federal criminal law—but almost exclusively as supplements to imprisonment, not as substitutes for it. Similarly, community service is now a common disposition but mainly as an additional punishment for offenders who would otherwise have received straight probation. Thus, neither of the so-called alternative sanctions has succeeded in replacing imprisonment in any significant degree.

Because the argument for alternative sanctions has been a prominent part of crime policy debates for nearly two decades, it is implausible to attribute the unpopularity of fines and community service to public ignorance. A more satisfying explanation is that these conventional alternatives fail to satisfy the public's demand for punishments that effectively express society's moral condemnation of crime.

As the philosopher Joel Feinberg has observed, an imposition must do more than make an individual suffer before we recognize it as a punishment. It must also be understood to express moral disapproval of the individual who bears it. A person can lose just as much liberty, for example, in the military as she can in prison. The reason that only imprisonment and not conscription is regarded as punishment is that against the background of widely shared conventions only imprisonment expresses society's authoritative moral condemnation.

Because the public expects punishments to express condemnation, the political acceptability of various forms of punishment will reflect their expressive power. In American society, imprisonment expresses condemnation with unmistakable clarity. Because liberty is such a powerful symbol of what individuals are due, taking it away leaves no doubt about society's condemnation of a criminal wrongdoer. This has been true of imprisonment, moreover, since its inception in the nineteenth century, when Americans turned to it as a gesture of disapprobation more fitting to a republic than was corporal punishment.

Fines, in contrast, condemn much more ambiguously. When combined with a term of imprisonment, it is clear that they are being imposed for doing what is morally forbidden. But when fines are used as a substitute for imprisonment, they sometimes suggest that society is assigning a price to the regulated behavior. Such a connotation is inconsistent with moral condemnation: while we might believe that charging a high price for a good makes the purchaser suffer, we do not condemn someone for buying what we are willing to sell. The sensibility that fines are morally neutral "price tags" seems to lie at the heart of resistance to fines among legislators, judges, sentencing commissioners, and ordinary citizens.

Community service also fails to express condemnation unambiguously. We do not ordinarily condemn persons who educate the retarded, install smoke detectors in nursing homes, restore dilapidated low-income housing, and the like; we admire them. Accordingly, when judges order offenders to engage in such services, members of the public have difficulty accepting that the law takes the underlying conduct seriously. In addition, by saying that such services are fit punishments for criminals, the law inadvertently insults both those who perform such services voluntarily and those whom the services are supposed to benefit. The dissonant connotations of community service as a punishment explain why it has made so little headway as an alternative to imprisonment.

Shaming punishments, in contrast, appear to be making much more headway. It is not the case that all offenders who receive shaming penalties would otherwise have been incarcerated, but many of them would have been. Among the offenses for which shaming penalties are now used are drunk driving, larceny, embezzlement, minor assaults, burglary, perjury, toxic-waste dumping, and drug distribution. When used for crimes such as these, shaming penalties free up imprisonment resources for offenders who more urgently demand incapacitation.

But shaming penalties are also emerging as a serious rival of imprisonment because they do something that conventional alternative sanctions do not: express appropriate moral condemnation. Such penalties, one court explained, "inflict disgrace and contumely in a dramatic and spectacular manner" (Goldschmitt v. State, 490 So. 2d 123, 125 (Fla. Dist. Ct. App. 1986)). Thus, like imprisonment but unlike fines and community service, shaming penalties supply an unambiguous and dramatic sign of the wrongdoer's disgrace. Insofar as shaming penalties do successfully convey condemnation, substituting them for imprisonment does not invariably offend widespread expressive sensibilities.