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Shaming Punishments - Legal Issues

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Shaming punishments have been subjected to two sorts of legal challenges, one constitutional, the other nonconstitutional. The constitutional challenge asserts that shaming punishments are "cruel and unusual" for purposes of the Eighth Amendment. This is a difficult claim to establish insofar as shaming is typically used as an alternative to a prison sentence, which tends to visit just as much humiliation on an offender as shaming but which adds a variety of other hardships. Unsurprisingly, all the courts that have considered Eighth Amendment challenges to shaming have rejected them (e.g., People v. Letter-lough, 613 N.Y.S. 2d 687, 688 (1994), reviewed on other grounds, 631 N.Y.S. 2d 105 (1995); Lindsay v. State, 606 So. 2d 652, 657 (Fla. Dist. Ct. App. 1992); Ballenger v. State, 436 S.E.2d 793, 794–795 (Ga. 1993); State v. Bateman, 771 P.2d 314, 318 (Or. 1989); Goldschmitt, 490 So. 2d at 125–126.)

The nonconstitutional challenge is that judges lack the statutory authority to impose shaming punishments. This claim has proven relatively more successful. Typically, judges order shaming punishments as a condition of probation. Although sentencing statutes tend to vest judges with wide discretion to determine whether to grant probation and on what terms, they ordinarily require that such a sentence conduce to rehabilitation. Some appellate courts have held that shaming is thus an inappropriate probation condition because it is geared toward "punishing" rather than "rehabilitating" the offender (People v. Meyer, 680 N.E.2d 315 (Ill. 1997); State v. Burdin, 924 S.W.2d 82 (Tenn. 1996); People v. Letterlough, 631 N.Y.S.2d 105 (1995).) Paradoxically, in jurisdictions in which sentencing judges lack the authority to impose shame as a condition of probation, those judges might be more inclined to sentence offenders to prison, an unambiguously punitive disposition that likely impedes rehabilitation more than a shaming sentence does.

In practice, appellate decisions holding shame to be outside the scope of a sentencing judge's authority is not a major obstacle to the use of shaming punishments. Because it is not constitutional in nature, this limitation in judicial authority can be remedied by a statute expressly authorizing judges to shame offenders. Moreover, offenders typically prefer shaming punishments to imprisonment. In most jurisdictions, the consent of the offender to a shaming punishment in lieu of imprisonment effectively immunizes his or her sentence from appellate review. Thus, judges have continued to impose shaming sanctions on consenting offenders even in states in which appellate courts have deemed shame to be outside the sentencing judge's statutory authority.

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