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Shaming Punishments

Historical Antecedents: Corporal Punishments And Imprisonment, Contemporary Impetus: The Search For An Expressively Appropriate Alternative Sanction

Convicted of drug distribution, Takeisha Brunson—a twenty year old with a lengthy string of prior convictions—might ordinarily have been sentenced to a significant prison term. But the judge in her case decided to try an alternative sanction: shame. As a condition of probation, the judge ordered Brunson to place an advertisement in a local newspaper announcing, "I purchased drugs with my two kids in the car." Brunson objected to the sentence as "hard," yet she readily accepted it over more jail time and the certain loss of her children.

As innovative as it was, the use of shame in Brunson's case was by no means an isolated occurrence. Courts in New York, Texas, and other states now order drunk drivers to display brightly colored "DUI" bumper stickers. In Florida and Oregon, judges order nonviolent sex offenders to post warning signs on their property. In Massachusetts, men who are delinquent in their child support payments find their pictures displayed on subways and buses. A federal judge in Washington, D.C., ordered a lobbyist convicted of illegal campaign contributions to compose a narrative on his crime and to distribute it to some two thousand members of his profession. In all these instances and in many others, judges are relying on the pain of public humiliation to produce the deterrent effect of short prison terms at a fraction of the cost.

The widespread advent of shaming sanctions is one of the most significant developments in American criminal justice since the early 1990s. Before then, sentences that included elements of humiliating publicity were rarely imposed and when noticed at all, were typically reported as amusing spectacles. (In one well known case (People v. McDowell, 130 Cal. Rptr. 839 (1976)), a court ordered a man convicted of purse snatching to put taps in his shoes to alert potential victims.) But by the end of the 1990s, such sentences had emerged as a highly visible, if still unorthodox and controversial, alternative to jail for serious, but nonviolent, offenders. No longer dismissed as vulgar curiosities, punishments like Brunson's now command the serious attention of criminal justice experts and have won cautious endorsements from mainstream organs of public opinion such as the New York Times.

The movement toward shaming in American criminal justice raises many important questions. What are the precedents for such sanctions? What explains the contemporary interest in them? What forms do those sanctions typically take? What legal issues attend the imposition of them? And most important of all, is shaming criminals a just and sensible policy?

DAN M. KAHAN

Additional topics

Law Library - American Law and Legal InformationCrime and Criminal Law