Scarlet Letter Punishment

The New Age of Scarlet-Letter Punishment

“There can be no outrage, methinks, against our common nature, whatever be the delinquencies of the individual – no outrage more flagrant than to forbid the culprit to hide his face for shame; as it was the essence of this punishment to do.” – Nathaniel Hawthorne, The Scarlet Letter

What is Scarlet-Letter Punishment?

Members of society expect punishment to protect them from harm and to express moral disapprobation.^[1] The most well-known and often used methods of punishment include imprisonment, fines, probation and community service. Different forms of punishment are beginning to emerge that challenge conventional notions of what punishment is all about.^[2]

In recent years, scarlet-letter punishment has come back in vogue as an alternative to other popular sanctions.^[3] These penalties are designed to humiliate and degrade an offender in public while inviting some element of public participation.^[4] These sentences reveal an offender’s bad behavior to the public and force him or her to experience the uncomfortable exposure associated with the public announcement of his crime.^[5] They have reemerged primarily as a result of society’s skepticism that prison time, fines and parole do not effectively work to rehabilitate criminals.^[6] These penalties are typically reserved for sex and moral offenses, commercial offenses, and minor offenses.^[7] They are usually imposed on first-time offenders.^[8] They are most likely handed down in state courts because state judges typically have broader discretion.^[9]

Shaming penalties require an offender to publicize his offense to an audience that, under normal circumstances, would be unaware of it.^[10] As a result of this publicity, the penalties cause the offender to suffer an unpleasant, and likely painful, emotional experience.^[11] To comprehend what constitutes scarlet-letter punishment, consider these recent examples of how judges across the county impose these types of penalties: a judge in Houston, Texas ordered that a warning sign be placed on the front door of a convicted child molester’s home.^[12] The sign read, “No children under the age of 18 allowed on these premises by court order.”^[13] The same judge required a witness who committed perjury to wear a sign in front of the courthouse that read, “I lied in court. Tell the truth or walk with me.”^[14] Another judge in Houston ordered a man who pleaded guilty to domestic violence to stand on the steps of City Hall, face lunchtime workers, reporters and battered women’s advocates, and apologize for hitting his wife.^[15] Authorities in Canton, Ohio and Miami, Florida place the names, addresses and ages of convicted prostitution solicitors on a cable television channel.^[16] A state agency in Georgia posts on the internet the names and photos of parents who are delinquent with child support payments.^[17] Judges in Texas have ordered shoplifters to parade in front of the stores they robbed, carrying posters admitting their guilt.^[18] A Florida judge sentenced a mother who bought drugs in front of her children to take a newspaper ad telling the community what she had done.^[19] These are just some of the examples of the newly aggressive approaches by judges to send a message to offenders, would-be offenders, and the public.

Shaming punishments are not only inflicted upon individuals. Every state has enacted some form of sex offender registration legislation.^[20] Registration requires that convicted sexual offenders provide local authorities with information regarding their whereabouts and prior criminal history.^[21] These “Megan’s Laws” have been enacted at the state and federal level, which require released sex offenders to register their home addresses with the states. Many states publicize this information on websites and through other means.

How did the Concept of Shaming Punishments Begin?

During the 17^th and 18^th centuries, the most popular methods of punishment involved shaming penalties.^[22] At that time, effective deterrence rested upon the shoulders of public humiliation. Public shaming constituted the most severe punishment and tended to cause more pain than physical beatings.^[23] Shame punishments led to shunning by the community.^[24] As a result, the threat of shame alone deterred crime and controlled deviant behavior.^[25]

Shaming sanctions were successful because of the small size of American communities and intimate social structure in which members depended upon each other.^[26] Most community members were life-long and the towns were essentially self-contained.^[27] Shame punishment was based on one’s essential attachment to society.^[28] In fact, at these times, the community was synonymous with life itself.^[29]

As society developed, a more humanitarian approach to punishment evolved. By the 19^th century, shaming sanctions had become “worse than useless.”^[30] One such explanation lay in the metamorphosis of American communities from small, intimate and tight-knit to urban, sprawling and anonymous.[31] As a result, the relationships amongst community members began to transform into more impersonal interactions.^[32]

Another possible explanation is the changes in the composition and size of the population.^[33] The 19^th century saw unprecedented population growth, new mobility and diversification.^[34] Citizens became more mobile and began migrating to large cities defined by autonomy and individuality.^[35] The breakdown in the sense of community weakened the sensation of suffering that had accompanied public spectacles of shaming.^[36]

The prison system was born as a result of increasing crime rates and the failure of traditional punishments.^[37] By the 1850’s, confinement had emerged as the new form of punishment and social control of criminal behavior.^[38]

Why Use Shame?

The return to shaming penalties is to some extent a nostalgic longing for an era when a community and its principles were so uniform that people could police themselves.^[39] The primary reason for imposing these sanctions is economic. In 2006, there were approximately 2.26 million people in state and federal prisons.^[40] Prisons are costly and overused.^[41] Today, the costs of imprisonment consume large shares of state budgets.^[42]

Another reason used by supporters of these punishments is that imprisonment is sometimes too harsh of a punishment, and the other major alternative, probation, is too lenient.^[43] Judges tend not to use fines and community service all that much because they are “expressively inadequate.”^[44] Fines can be thought of as ambiguous punishment because they make it look like offenders can buy their way out of harsher punishment.^[45] Community service receives criticism as punishment because it is supposed to be something civic-minded people do that wins them public praise and esteem.^[46]

Shaming penalties, according to their supporters, express moral condemnation of the offensive conduct far better than the alternatives. Proponents of scarlet-letter penalties argue that they effectively succeed in the main goals of punishment – namely, deterrence and rehabilitation.

What is the Relationship Between Shaming and Deterrence?

Supporters argue that shaming can deter future wrongdoing in three ways. First, these tactics impose some limitation on the offender’s freedom, for example, by making the offender wear a sign.^[47] Second, they produce an unpleasant emotional experience, which potential offenders will want to avoid and actual offenders will want to avoid repeating.^[48] Third, the offender may suffer adverse consequences from members of the community, who may gossip about him or refuse to engage in social intercourse with him.^[49]

In my opinion, these arguments are too speculative and problematic. Even though the criminals may have their freedom restricted, it will be in such a nominal way that it is unlikely to make a big impact. And this restriction is nothing when compared with the restrictions imposed on criminals who are sentenced to imprisonment, and who will be fully deprived of their liberty. Furthermore, it is unclear to what degree these offenders may suffer unpleasant emotions. Each person will react differently, which will largely depend on his community, his status and his past experiences. These effects need to be measured individually and in this context, it is virtually impossible.

While I do agree that offenders may suffer adverse consequences from the community, I also find that not everyone cares about being “accepted.” A community may be so atomized that no one cares about what other people think about anyone else.^[50] This is very plausible in today’s world, where technology and traveling abilities help fragment communities and allow individuals to remain more independent and anonymous. Additionally, when shame does work, it may push an offender further into criminality.^[51] The penalties may stigmatize or label him as a criminal, which can cause him to think he needs to behave like criminal.^[52]

What is the Relationship Between Shaming and Rehabilitation?

Another purpose of punishment is rehabilitation.^[53] Rehabilitation is meant to forestall future offenses by changing the defendant’s preferences.^[54] The rehabilitated offender accepts that what he did was wrong and, out of respect for the law and the rights of others, no longer thinks it is morally acceptable to violate either of them.^[55] Thus far, the power of shaming sanctions to rehabilitate has been questionable. Courts have increasingly struck down these types of penalties after finding that they are punitive, and not rehabilitative.^[56]

Furthermore, the punitive effects of requiring the offender to publicize his conviction in nearly every aspect of his life clearly outweigh the rehabilitative effects. These punishments will humiliate the defendants and cause the public to disassociate themselves from them. It is important to remember that the primary purpose of probation is to reintegrate the defendant into society. The humiliation punishments will frustrate this goal.

Should Preferences Matter?

Proponents of shaming argue that these sanctions should be upheld because they are often the mode of punishment chosen by offenders.^[57] This argument must be looked at in context. Society should not rely on the preference of offenders as a measure of the relative cruelty between incarceration and shaming.^[58] It is no surprise that criminal offenders are willing to choose shaming over the other viable option of prison. Such choice is likely based on the duration of the punishment rather than its intensity or intrinsic cruelty.^[59] Typical shaming punishments have thus far been relatively brief when juxtaposed against the duration of incarceration sentences.^[60] If prisons were the benchmarks for alternative sanctions, then virtually anything would be an improvement and worth trying.^[61] People would perhaps be more willing to have two pinkies cut off to avoid having to spend a year in prison away from their family, but that does not necessarily mean the state should be in the business of punishing people by cutting off fingers or that such punishments are less cruel.^[62] Thus, shaming penalties seem far more attractive to potential prison inmates. Furthermore, since shaming sanctions are relatively new and rare, offenders who have never been publicly shamed may discount the cruelty.^[63]

Why is Shaming Bad?

Despite the disagreements over the real purposes and effects of retributive punishment, there is consensus over one thing: punishment should be proportionate to the offense.^[64] One of the problems with shaming sanctions is that they are difficult to balance. It is difficult to disseminate information regarding the illegal activity in a way that is proportional to the severity of the offense.^[65] On one hand, these punishments can be disproportionately too weak on those offenders who are socially alienated.^[66] In order for these penalties to work, a person has to care about what others think about him or her. Additionally, there are criminal sub-cultures in which shaming may become a source of pride.^[67] This cannot be said of the other types of punishment.

On the other hand, these types of penalties may be too strong.^[68] Since these punishments invoke a person’s emotions, they can have dire consequences. They can cause the offenders to avoid the community and alienate themselves from others.^[69] At the extreme, shame can result in self-destruction, and the person may attempt to rid those emotions through suicide.^[70] Such case may seem inconceivable, but consider the following news story: In Georgia, a man was convicted of drunk driving.^[71] As a condition of his sentence, the judge required that a photograph of the man appear in the local newspaper.^[72] The man had not told his mother of his conviction.^[73] She saw his picture in the newspaper and left him a note that described the horrid shame she was experiencing.^[74] Distraught and embarrassed after reading the note, the man committed suicide.^[75] Proponents of shaming sanctions argue that imprisonment is cruel, degrading and more likely to “vitiate the reputational stake a person has in resuming a law-abiding life that shaming is.”^[76] These claims warrant scrutiny. There are minimum-security prison facilities available for the types of offenders for whom shaming punishments are not an option.^[77] These facilities do not even endeavor to destroy an offender’s basic human dignity.^[78] In fact, a substantial part of the prison population is housed in these types of facilities.^[79]

What are Some Problems with Shaming as Applied in Today’s World?

From its history, it appears that scarlet letter sanctioning can successfully control and deter criminal conduct only under very limited societal conditions, which are virtually non­existent today.^[80] The rise of the penitentiary and continual use of that institution attests to the failure of shaming sanctions under modern conditions.^[81]

In the shaming context today there are problems with the public bearing witness to such spectacles. The anonymous, diverse, impersonal texture of today’s society is not conducive to eliciting feelings of shame.^[82] The American way of encouraging independence and individuality necessarily reduces the effectiveness of shaming.^[83] People are wrapped up in their own worlds and are concerned with their own lives, so it is quite unlikely that they would respond apathetically to such a public spectacle of shaming.^[84] As one commentator noted about today’s society: “It is doubtful that in today’s hectic, commuter-world people would congregate to witness someone’s public shaming – Even a bumper sticker posted on an offender’s car would probably get a mere glance at best.”^[85] The community is unlikely to react to the public spectacle in a way that will lead to the emotions and guilt needed for the offenders’ deterrence and rehabilitation.

Is Shaming Undignified?

Shaming penalties are cruel, degrading and inhumane.^[86] They violate an offender’s dignity, which no morally decent state should do.^[87] State enforced shaming authorizes public officials to search for and damage an offender’s dignity.^[88]

Mark Kappelhoff, of the American Civil Liberties Union, sums up shame punishment by referring to it as “gratuitous humiliation of the individual that serves no societal purpose at all”.^[89]

The supporters of shaming penalties argue that since the alternative to shame is imprisonment, then shame simply substitutes one set of indignities for another.^[90] What’s missing from this argument is the fact that shaming encourages others to bear witness to the offender’s indignities.^[91] Individuals who are imprisoned for a certain period of time are able to remain relatively anonymous since they do not walk around announcing their convictions to society.^[92] On the other hand, those individuals who are subjected to shaming sanctions carry with them a public stigma that is not easily forgotten or ignored.

Should Punishment Focus on Shame or Guilt?

Shaming differs from other methods of punishment in that its effectiveness depends on the reaction of members of society or in the market to the public information concerning the offender’s behavior.^[93] Punishment, no matter what form, should be premised on guilt and not on shame. Shame involves the idea of an audience, whereas guilt involves no such connection.^[94] Guilt focuses on the individual’s particular act of wrongdoing, whereas shame focuses on the person as a whole.^[95] These emotions also differ in their elicited responses.^[96] Shame prompts one to hide or to strike back at the source of shame.^[97] On the other hand, guilt prompts the person to try to make amends for the wrongdoing.^[98] Rehabilitation should not depend on the response of other people; it should be an intrinsic process that an individual experiences from his own emotions. Of course, eliciting a particular emotional response from a person is not an exact science.^[99] However, if the state is going to aim at any such response, then it should be guilt.^[100]

Is This the Beginning of Shifting Trends?

Dan Kahan, a national expert on shame penalties, and a well-known proponent of them, recently recanted his position.^[101] He admits that there is no statistical evidence showing that shaming works to rehabilitate or deter.^[102] Kahan argues that the problem with shaming penalties is that they are deeply partisan.^[103] When shaming penalties are deployed, they signal that society has chosen sides with those who elevate community values over individuality and equality.^[104] He argues that imprisonment is pluralistic, which is why it works so well as a punishment.^[105] Persons of all cultures and worldviews can understand it and can appreciate it as a means of punishment.^[106] Since one of the most well known advocates for shame punishments just renounced his position, it will only be a matter of time before others will follow his lead.

What are Viable Alternatives?

To fashion an acceptable alternative to imprisonment, it is necessary to identify a form of punishment that not only condemns as forcefully as imprisonment, but that also condemns as ambiguously as imprisonment.^[107] Kahan, and Stephen Garvey, an opponent of these penalties, introduced two such models. A third alternative, therapeutic jurisprudence is a preventive law model.

Kahan introduced a model of restorative justice. Restorative Justice is the term given to a variety of different practices, including apologies, restitution, and acknowledgments of harm and injury, as well as to other efforts to provide healing and reintegration of offenders into their communities.^[108] Under this model, the offender, victim, and representatives of the community participate in an informal mediation process.^[109] The participants would negotiate an appropriate course of action, which would typically include some type of apology by the offender and an agreement to furnish monetary or other types of reparation to the victim.^[110] Proponents suggest that by providing structured environments in which offenders and victims meet and explain their injuries and hurts to each other, offenders could acknowledge and explain their bad acts, apologize and make restitution to victims who could forgive and feel safe again.^[111] Restorative justice programs promote a healing response by creating an atmosphere of rapprochement and then by initiating a process by which the offender can help make the victim whole.^[112] These programs emphasize the need to treat offenders with respect and to reintegrate them into the community.^[113] Additionally, this type of program could be beneficial to victims, who would no longer be frightened or traumatized by what happened to them.^[114] For these reasons, most people approve of restorative justice because they see it as “as accentuating, not muting denunciation of offenders.”^[115]

Garvey concedes that shaming punishments may successfully condemn and may even be effective deterrents, but they do little to educate.^[116] Thus, he introduces a theory of moral reform, which in essence is an educating model.^[117] The idea behind this theory is that punishments should aim to reflect back on the offender what he has done to his victim.^[118] Under this model, punishment is seen as a mode of bilateral communication.^[119] The goal of punishment is the offender’s moral education or reform.^[120] This model requires the offender to be treated as a responsible, autonomous agent and not merely as an object to be manipulated through coercion and fear.^[121] It seeks education, not indoctrination.^[122] It prides itself on treating the offender as a responsible moral agent.^[123]

This theory forces the offender to repair the particular harm he caused, and not to simply provide some general service to the community.^[124] It urges that sanctions be designed in a way that makes an offender experience the harm he has caused, either directly or vicariously.^[125] The aim is to get the offender to reform himself.^[126] Rather than simply “yelling” at the offender as in the shaming model, punishment in the educating model is intended to speak to the offender so that he will learn from what is said.^[127] The other modes of punishment fail to provide such education.^[128] For example, probation may limit what an offender can and cannot do, but it does not show him why his actions were wrong.^[129] Likewise, community service may introduce the offender to the virtue of helping others but, again, it does nothing to show the offender why his actions were wrong.^[130] Fines simply transfer wealth from the offender to the state without any explanations of his actions.^[131]

Apology plays a major role in the moral education theory. In this model, however, the emphasis is on the apology and not the shame that might accompany it when it is given in public.^[132] Thus, the educating model would urge the offender to make the apology in private.^[133] At the end of the process the offender comes through punishment to understand the nature of his offense, to experience guilt, and to repent his wrongdoing and seek to make amends.^[134]

Part of the moral education theory is the idea of lex talionis, which requires that the punishment mirrors the harm caused.^[135] However, Garvey emphasizes that the idea of “an eye for an eye” should not be construed literally.^[136] As an example, he demonstrates a possible punishment for those convicted of rape. The offenders should experience the trauma vicariously, by being forced to listen to the words and accusations of rape victims, and by engaging in role-playing in which they assume the role of the women they raped.^[137] Another example is to deny a convicted perjurer access to courts for a specified period of time, with the view that the offender might learn the value of preserving the courts’ integrity.^[138]

Therapeutic jurisprudence is a preventive law model that seeks to alleviate the need for shaming sanctions. It is an interdisciplinary approach to legal scholarship and law reform that sees law itself as a therapeutic agent.^[139] It proposes that we be sensitive to the consequences of governmental action and that we ask whether the law’s anti-therapeutic consequences can be reduced and its therapeutic consequences enhanced without subordinating due process and justice values.^[140] This model contemplates lawyers practicing with an ethic of care and heightened interpersonal skills while seeking to prevent legal difficulties through sensitive counseling and advanced planning.^[141] It necessitates increased psychological sensitivity in the attorney-client relationship, enhanced interpersonal skills, interviewing and counseling techniques, and approaches for dealing with the emotional issues that are likely to come up in the legal encounter.^[142] The criminal defense attorney informs the client of options and attempts to persuade the client to consider rehabilitative possibilities.^[143] Therapeutic jurisprudence is committed to client-centered counseling.^[144] The client’s direct involvement in creating a success plan can increase the likelihood that he will comply with it and benefit therefrom.^[145] All of these models show that there are feasible alternatives to scarlet letter punishment.

What are Some Proposed Solutions?

The simplest solution is to do away with these shaming practices because they serve no societal purpose. In order to do this, studies need to be conducted to show that there is little, if any, correlation between shaming punishments and rehabilitation or deterrence. In 2005, Alon Harel and Alon Klement conducted one such study.^[146] Their research showed that there is an inverse relationship between the rate of shaming penalties and their deterrent effects.^[147] They found that wide-ranging use of shaming penalties is likely to erode their effectiveness and that their extensive use as a substitute for traditional sanctions may undermine their deterrent effects.^[148]

Legislatures and judges should be informed of this so that they can see for themselves that these punishments do not succeed at one of their primary purposes: deterrence.

It needs to be shown that these types of sanctions violate the eighth amendment in that they are cruel and unusual punishments. In the case Trop v. Dulles, the court stated that the meaning of the eighth amendment must be drawn from the “evolving standards of human decency that mark the progress of a maturing society.” Scarlet-letter sanctioning should be struck down under this standard. As society continues to evolve, so do its methods of punishment. Society should not sanction a condition that deprives a man of his dignity by holding him out for public ridicule in every aspect of his life.

Another possible argument is that shaming sanctions infringe upon the defendants’ first amendment privacy rights. Thus far, this argument has proven to be ineffective.^[149] Sentencing judges enjoy broad discretion authorized by statute when crafting probation sentences.^[150] A reviewing court tends to invalidate probation sentences only if it finds the penalty to be unreasonable, unrelated to the goals of probation, or an abuse of discretion.^[151] Additionally, the United States Supreme Court has recognized that probationers do not enjoy the same degree of constitutional protections as do law-abiding citizens.^[152] Although this argument has not yet been successful, it is important to continue raising it.

The problem with these shaming tactics is best described by Erwin Chemerinsky, a prominent law professor: “The real measure of how civilized we are, is the way we choose to punish people. It is not civilized to tell somebody you’re going to sit in the stocks and we’re going to throw stones at you.”^[153] Every country deals with criminals in its own way. We, as the American public, need to set examples and show that these offenders deserve, and can benefit from, another chance. We cannot engage in these inhumane punishments, especially when there is a lack of evidence showing that are effective in deterrence or rehabilitation.