The most important questions posed by the advent of contemporary shaming penalties are normative ones. Criminal justice experts have engaged in a lively debate over whether such punishments are effective and just.
Deterrence. Not surprisingly, the issue that has provoked the most dispute among policy analysts is whether shaming punishments are likely to be effective in deterring criminality. The best answer is that it is simply too early to say. Shaming punishments are still too new to have been subjected to rigorous empirical study. But at least one such study is well underway. With the cooperation of the Australian government, criminologist John Braithwaite has organized a large-scale experiment involving hundreds of convicted offenders who have received shaming sentences. The results of this study should help to bring the deterrence debate closer to a definitive resolution.
But because judges must decide what punishments to impose in the meantime, other analysts continue to present pragmatic conjectures on the likely effectiveness of shame. Shame proponents argue that shaming penalties are likely to deter for the same reason that other penalties, including imprisonment and fines, deter: because they hurt. Those who lose the respect of their peers can suffer a crippling diminishment of self-esteem. Moreover, criminal offenders are as likely to be shunned in the marketplace as they are in the public square, leading to serious financial hardship.
Shame skeptics question whether the threat of shame can effectively deter misconduct in modern urbanized societies, where social bonds are relatively loose and impersonal. The perceived inefficacy of shaming, they note, played a critical role in the shift from corporal punishment to imprisonment in nineteenth-century America.
Shame proponents acknowledge that shame may no longer be as potent a motivator as it was in colonial times, but assert that it would be a mistake to infer that that modern social conditions have vanquished shame altogether. A corporate executive deciding whether to authorize toxic waste dumping might not care that much what an auto mechanic in a remote part of town will think of him if he is caught and word of his offense is broadcast to the community at large. But he probably cares a lot about what his family, his colleagues, his firm's customers, his neighbors, and even the members of his health club think. Thus, the prospect of being disgraced in their eyes, shame proponents argue, continues to furnish a strong incentive—psychological, economic, and otherwise—to avoid criminality.
Critics also argue that shaming punishments are likely to deter unevenly across offenses. It is plausible to think that shaming will be less effective for offenses typically committed by the poor and disaffected, for example, than for offenses more likely to be committed by middle-class or affluent individuals, for whom the reputational cost of conviction is likely to be the largest.
Proponents respond that the selective efficacy of shame supplies a reason only to be selective about the use of shaming penalties, not to reject them wholesale. Even if many potential drug dealers and muggers are shameless (a proposition that not all shame advocates would concede), it seems unlikely that all potential drunk drivers, embezzlers, statutory rapists, tax evaders, and toxic-waste dumpers are.
Individual dignity. The critics of shaming punishments also invoke the value of individual dignity. It is inappropriate, they argue, for the law deliberately to humiliate or degrade anyone, even criminal offenders.
In proponents' view, the dignity objection ignores the practical consequences of denying judges the authority to shame. Shaming punishments are an alternative to imprisonment. Imprisonment also humiliates and degrades; indeed, the power of liberty deprivation as a symbol of the offender's sunken status is exactly what explains the public's stubborn preference for imprisonment over less expressive alternatives such as fines and community service. Moreover, as a practical matter, imprisonment imposes a host of indignities that shame cannot hope to rival, from physical confinement to the exposure of private bodily functions to physical violence at the hand of other inmates.
Because shaming penalties are typically imposed as a condition of probation, offenders can opt for imprisonment over shaming if they prefer by declining to accept probation on such terms. Unsurprisingly, offenders rarely if ever choose jail over shame. Critics who object to shame as contrary to individual dignity, the proponents point out, find themselves in the paradoxical position of arguing that society must disregard the individual offender's own preferences in order to treat him or her with respect.
The most sophisticated reply to this defense of shaming treats "dignity" not as an individual good only but as a public one as well. According to this argument (Whitman), shaming punishments—particularly in their most dramatic and ritualistic forms—risk creating a public appetite for degradation that imprisonment, because of its relative low visibility and antiseptic profile, does not risk creating. The result of adding shame to the schedule of criminal punishments, these critics fear, will be a less dignified regime of criminal administration, and ultimately a less civilized tone of public life.
Equality. The critics and advocates of shaming also disagree about whether this form of punishment is consistent with the value of equality. Like fines and community service, shaming penalties are not suitable for all offenders. Shaming punishments probably will not be nearly as effective for some offenders as they would be for others, including white-collar ones. Even more important, some offenders require incapacitation and not just condemnation. Making what is probably the most compelling objection to shaming, critics argue that it violates equality to punish these offenders with imprisonment while merely shaming white-collar or other nonviolent offenders who commit crimes of equal moral culpability.
Shaming proponents point out that we can assess the equivalence of punishments along multiple dimensions, including their expressive power, their regulatory effect, and their painfulness. To indict a particular alternative sanction on grounds of equality, then, requires showing not only that that sanction differs in one or more of these ways from imprisonment but that the difference is morally relevant.
Expressive significance is one dimension of equivalence that clearly matters from a moral point of view. Fines and community service, for example, do not express condemnation as clearly as imprisonment does; because condemnation is essential to punishment, imprisoning one offender while ordering another equally culpable one to pay a fine or to perform community service creates an objectionable form of inequality. Corporal punishment has also been understood to express inequality because against the background of historically rooted social norms, this mode of discipline connotes the offender's natural or social inferiority.
Shaming, its advocates contend, does not suffer from either of these defects. It clearly does express condemnation; that is exactly why it is succeeding in replacing imprisonment for certain offenses. Yet shaming does not express hierarchy. The particular sorts of shaming penalties now being enforced by American judges are free of any historical association with slavery or other forms of inequality.
Regulatory effect is another dimension of equivalence that clearly matters. But again, at least according to the shaming advocates, there is little reason to believe that shame will not be roughly as effective in deterring crime as the short terms of imprisonment that nonviolent offenders would otherwise likely receive.
Finally there is the dimension of painfulness. It seems plausible to think that even short terms of imprisonment are more painful than dramatic shaming rituals. But shaming advocates deny that this inequivalence matters from a moral point of view. The idea that the justice of punishment should be measured in the currency of pain is a recognizable form of retributivism, but it is surely the one that has the least to recommend it. Suffering, abstracted from all else, should not be a goal of punishment. If shaming is good enough from expressive and deterrence points of view, shaming advocates conclude, let's just get on with it and not worry about whether we are hurting criminals enough.
Law Library - American Law and Legal InformationCrime and Criminal LawShaming Punishments - Historical Antecedents: Corporal Punishments And Imprisonment, Contemporary Impetus: The Search For An Expressively Appropriate Alternative Sanction