A man in the United States city of Liberty, Ohio has received an unusual punishment for attempting to steal a 52 inch television. Greg Davenport pleaded ‘no contest’ to the charge and was given the option between thirty days in prison and walking ten 8-hour days with a sign that says, “I am a thief- I stole from Walmart.”
Public shaming was common in the US throughout the 19th century, involving offenders being publically punished by a period of time in the stockades, a flogging in the town square or wearing a sign or mark distinguishing them as an offender.
While the practice was largely abandoned by the 1800s, public shaming has seen a revival starting in the 1990s in the US, with judges turning to alternative punishments designed to humiliate and send a stern message.
Modern Shaming
Public shaming comes in many creative forms, including ‘eye-for-an-eye’ type punishments, with one judge sentencing a Californian slumlord to live in his own run-down building under house arrest for two months. In other cases, victims of burglaries have been allowed to take possessions from perpetrators, and one Ohio woman who abandoned 33 kittens in the woods was made to spend a night alone in the same are.
Other punishments are purely public admonishment, with offenders made to carry signs like, “I stole mail and this is my punishment” or “Only an idiot would drive on the sidewalk”. Many cities have also posted the names of drug offenders, fathers who fail to pay child support, or public urinators on billboards.
The Role of Shame
Shame is a painful feeling caused by the consciousness of wrong or foolish behaviour.
It is associated with a negative self-evaluation; that you are a bad person or less than what society expects of you. It is intended to encourage goal-directed behaviour and act as a marker for change. As shame communicates a dissociation from social norms, it is generally required to reinforce a pattern of positive behaviour.
Reintegrative Shaming
In his book, ‘Crime, Shame and Reintegration’, John Braithwaite posits that some shame, communicated effectively, is essential for preventing crime. An example is Wall street fraud, where business people believe within their own circles that law-breaking is clever rather than shameful.
What is important, Braithwaite believes, is that shame is allowing for a reintegration into general society. According to Braithwaite, reintegrative shaming takes place when shame is partnered with respect for the individual, and an acceptance of the potential for change. Stigmatization, on the other hand, is an attack on the individual that isolates them from the group. The pros and cons of public shaming as a sentencing option largely hinge on whether the consequences allow victims to reintegrate, or whether they get stuck identifying with their feelings of humiliation and ostracizing.
The former view was taken by the US in the 1800s, with lawmakers deriding the ‘uncivilised’ form of punishment. The removal of public whipping posts in Delaware, for example, was supported by this quote, “The boy of eighteen who is whipped for larceny is in nine cases out of ten ruined. With his self-respect destroyed and the taunt and sneer of public disgrace branded upon his forehead, he feels himself lost and abandoned by his fellows.”
Why Are Courts Turning to Shame?
The US is facing an extraordinary crisis in its correctional system, a problem that is even greater than overcrowding in NSW prisons. One in every 100 US adults is incarcerated and two-thirds of released inmates return to prison. This costs the US more than US$60 billion per year. With their prisons crammed and society growing increasingly sceptical about the benefits of putting people behind bars, proponents of public shaming see it as a cheaper and more effective way of dealing with certain offences.
Many US judges believe the message sent by public shaming hits home harder than short terms of imprisonment. In one example, a Houston man convicted of domestic violence was forced to apologise to his wife on the steps of City hall. An audience of 450 people witnessed the apology, including newspaper and TV reporters, photographers, women from shelters and other defendants accused of domestic violence.
In terms of preventing recidivism though, it is hard to judge the effectiveness of public shaming. This is because it is only normally used on those who are already assessed as likely to reform- including those convicted of minor crimes, especially first-time offenders.
Criticisms of Public Shaming
Those against public shaming often express the concern that it can further alienate and stigmatise offenders, causing others to look upon them poorly, severing their community ties, negatively affecting their self-perception and ultimately sending them further down the wrong path.
1. Disintegrative experience
The American Civil Liberties Union (ACLU) believes that attempts to rehabilitate offenders are being thwarted by the dehumanising effects of public shaming.
“We believe in a form of punishment that involves restorative justice-community service where you give something back to the community,” says Mark Kappelhoff, lawyer for the ACLU’s Washington office. “Gratuitous humiliation of the individual – tearing that person down – serves no societal purpose at all … and there’s been no research to suggest it’s been effective in reducing crime.” The ACLU says that harsh shaming stays with the punished party, dissociated them from mainstream society and creating powerful impediments to reintegration.
The ACLU believes it is flawed to take the view that “incarceration is expensive and doesn’t work, so let’s turn to public shaming.” This is because in most cases, people are ‘shamed’ for minor offences that would not require a prison term, including shoplifting offences. It points out that there are many alternatives to imprisonment; and that programs which address the underlying causes of crime are far more effective in preventing reoffending; including drug rehabilitation programs, anger management and mental health programs.
2. Inconsistency of punishments
The legal system of NSW gives judges a broad scope of discretion when determining their sentences.
This is to ensure that they may take into account factors such as the circumstances of the offence, previous criminal history, likelihood of reoffending, and mitigating factors such as remorse and mental health conditions.
As a broad principle though, consistency of sentencing is important to our justice system. To promote consistency, has handed-down a range of “guideline judgments” which magistrates and judges can refer to when sentencing offenders for high range drink driving, armed robbery, dangerous driving, drug importation, break and enter offences, and so on.
It is argued that public shaming can create the unfair situation where some people are sent to prison while others get their punishments ‘over and done with’ by engaging in acts designed to shame them – which is contrary to the ideal of consistency in sentencing.
3. Farcical outcomes
Some argue that acts of shaming can border on the ridiculous.
In Memphis, Judge Joe Brown became famous for allowing victims of burglaries to go to the homes of the thieves and take items of equal value. This was seen by some as sanctioning a crime, and criticised as an improper use of judicial discretion.
While shaming may have some part to play in the sentencing process, it is important to keep the end goals in mind – to reduce crime, promote consistency and enhance confidence in the legal process.
