The Electric Commentary

Wednesday, August 18, 2004

Shame Punishments

Or, My First Fisking:

There is an article by Dan Markle in the New Republic that examines shame punishments. Last week a federal panel from the Ninth Circuit Court of Appeals ruled that trial judges in western states can sentence convicts to be publicly shamed. Markle doesn't like this. He argues, using words like "clearly" and "simply wrong," that shaming punishments are unconstitutional and should not be used. His argument is abstract and isn't supported by any actual evidence except for an occasional vague reference to what psychological studies have demonstrated.

The Ninth Circuit ruling dealt with a man who was convicted of stealing mail. As part of his punishment he was forced to wear a sandwich board that said "I stole mail. This is my punishment" for eight hours outside of the post office.

Shaming punishments have experienced something of a recrudescence in state courts in recent years--which makes this federal ruling the latest development in an alarming legal trend.

So we have established that shame punishments are not "unusual." That might be relevant later.

The Ninth Circuit's ruling rests on bad reasoning and misinterpretation of the available evidence on public shaming. But the ruling is not just bad law; it also condones a practice that flies in the face of settled constitutional values. And now that the practice has the approval of a federal panel, there is reason to believe that the situation is only going to get worse--unless the Ninth Circuit reverses course.

Okay, what evidence? How is it misinterpreted. If you aren't going to present this evidence, you better not criticize anybody else for not having evidence later on. How do you know it's bad law? Has this guy stolen mail again? Was the sandwich board exceptionally expensive? What is so bad about it?

The trial court could easily have conducted some basic research into shaming punishments to find out their known effects, or asked for some briefing by the lawyers before setting out on its sentencing experimentalism. It did neither. On appeal, moreover, the Ninth Circuit panel was presented with various psychological studies demonstrating that, far from exercising a corrective influence, shaming punishments cause harm to the offender. Nonetheless the Ninth Circuit endorsed the trial judge's reckless guesswork.

We just talked about this. I also find it hard to believe that there was absolutely no evidence presented to the ninth circuit that shame punishments work. Besides, this is an experiment. How can we really know for sure how well these punishments work if this is such a recent trend. And punishments are supposed to cause harm to the offender. That's what punishments are. He was convicted of a crime and you think the proper thing to do in response involves absolutely no harm to him?

Yale Professor Dan Kahan and University of Chicago Professor Eric Posner defend shaming punishments on economic grounds. They argue that shaming punishments of some nonviolent offenders are desirable because they offer a cheap and feasible way of conveying social condemnation without incurring the steep costs imposed by incarceration. In this case, though, the shaming punishment was used as a supplement to incarceration, not as a substitute.

How much time did he get? Did he get the maximum prison penalty for his crime? Perhaps he did not and was given the shame punishment in place of an extra year. Perhaps it was a substitute.

Put simply, the Constitution's Eighth Amendment prohibits cruel and unusual punishments. Most lawyers can recite the Supreme Court's precept that the "basic concept underlying the Eighth Amendment is nothing less than the dignity of man." The Court further directs that we draw the meaning of that instruction from "the evolving standards of decency that mark the progress of a maturing society."

Okay, so the Eighth Amendment prohibits cruel and unusual punishments. We've already established that this kind of thing is not so unusual. So you must think it's cruel. I think you would be hard pressed to find people that agree. Especially if you compare it to prison, or even a fine. And as for this guy's dignity, he chose to throw it away. How does the sign affect his dignity when it is TRUE? The sign does not say "I drown puppies" or "I wet the bed." It says only what he actually did. The truth is a perfect defense to a libel charge. It is also perfect here. The "evolving standard of decency" is so full of problems I don't know where to begin. If, as a society, our standard of decency has evolved so much, than why are we still stealing mail? When our standard evolves enough that we no longer have certain crimes, then, and only then, can we say that the punishments that go with them can go the way of the dinosaurs as well.

Juxtaposed against this standard, shaming offenders is simply wrong, regardless of whether it is labeled rehabilitative or punitive. The very goal of shaming, as the dissent by Hawkins recognized, is the dehumanization of another person before, and with the participation of, the public. Before we permit democratic institutions to subject an offender to ridicule, scorn, and humiliation, we have to ask whether this kind of punishment comports with evolving standards of decency and the dignity of humankind. The answer is clearly no.

Uh uh.

Of course, from many people's perspective, standing with a demeaning signboard around one's body for eight hours in a public square is better than spending many more months locked up in the teeming and fetid pestholes that are some of our nation's prisons. But this merely shows that there's more work to be done in the name of decency and dignity, not less.

So, we're doing something that keeps people from being locked up in the teeming and fetid pestholes that are some of our nations prisons which are presumably indecent and undignified and this is somehow doing less work in the name of decency and dignity. Makes sense. And you must have left your solution in your other pants with your evidence.

More on this over at Volokh.



  • This comment has been removed by a blog administrator.

    By Anonymous Anonymous, at 11:43 AM  

  • This comment has been removed by a blog administrator.

    By Anonymous Anonymous, at 11:43 AM  

  • The fancy-pants scholarly world of philosophy is debating this very same issue. This article briefly presents Martha Nussbaum's position on guilt vs. shame. Nussbaum, a professor at the U of C, is possibly the most influential living philosopher in the western world. The ivory tower is engaging with practical matters!


    By Anonymous Anonymous, at 11:44 AM  

  • That url does not work.

    By Blogger DannyNoonan, at 8:09 AM  

  • Here is a new (and hopefully improved) link:


    By Anonymous Anonymous, at 11:35 AM  

  • I suppose that's one way to look at it. Nussbaum seems to analogize things that I don't think are analogous. She likens Iraqi prisoner abuse to mistreatment of gays to shame punishments.

    "Kahan, communitarian sociologist Amitai Etzioni and others have argued that society might punish certain crimes better by public shaming -- some updated equivalent of putting an offender in stocks in the public square -- than incarceration.

    But shame penalties, she believes, inevitably link to the "primitive shame" that each person experiences -- in infancy and therefore extra-consciously -- at the enraging discovery of his or her utter dependence on others.

    Under unfavorable circumstances, such as resentful parenting, this discovery can harden into a narcissism that forever causes the individual to confuse what he does with what he is."

    I can't imagine a man wearing a sign that says "I stole mail" could possibly be confused as to why he was being punished. It is clearly because of what he did. Also, her writing made me want to experiment with mind-altering drugs. But interesting none the less.

    By Blogger DannyNoonan, at 12:04 PM  

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