Shame Penalties

Shame Today

Contemporary shame penalties include requiring offenders to advertise their conviction in a newspaper, on a billboard, or over a local public access television; to wear a T-shirt or placard that reads, for example, “DUI Convict,” or “I Write Bad Checks”; to post a sign with a similar message on their property; or to perform a ritual of self-abasement, such as publicly apologizing on the steps of the local courthouse. Yet despite their variety, modern-day shame penalties share at least one common feature: they broadcast an offender's wrongdoing to an audience that might otherwise not know about it.

Some proponents of shame penalties have urged that they be applied to offenders guilty of corporate and white-collar wrongdoing, who, because they usually enjoy high social status, might be especially vulnerable to shame. For now, most shame penalties are imposed on first-time and juvenile offenders guilty of nonviolent crimes, such as shoplifting or driving while intoxicated; shame penalties are also a popular sanction for men found guilty of soliciting prostitutes.

Most shame penalties are imposed as a condition of probation. The offender formally agrees to undertake some shameful action as a condition of probation, thus avoiding the alternative punishment, usually short-term incarceration. Some appeals courts have struck down these conditions on the ground that they are unauthorized by statute. But oftentimes offenders do not appeal the conditions imposed on them, or if they do, the appellate courts often decline to scrutinize those conditions. Although some shame penalties raise genuine constitutional concerns, few courts would find them [Page 1495]unconstitutional. Much of the contemporary debate over shame penalties has thus focused on their moral justifiability, not their legality.

Why Shame Now?

Once widespread, shame penalties gradually fell into disuse. As such, the first question about today's shame penalties is: Why now? Why after so many years as an out-of-sight phenomenon is this type of punishment once again coming into public view?

One answer sees shame penalties as part of a larger sociological movement toward “postmodern punishment.” Shame penalties originally belonged to a premodern era in which visibility and public participation were penal norms. But with increasing faith in the ability of science to understand the workings of both the natural and human worlds and with increasing refinement in public sensibilities, punishment became the domain of penal experts charged with reforming, educating, and rehabilitating criminal wrongdoers, a job best done behind closed doors. The return to shame penalties has thus been seen as part of an emerging cultural discourse in which evocative signs and symbols assume greater importance vis-à-vis modern bureaucratic efforts to control crime.

Another answer, one more localized to the American experience, also emphasizes the expressive quality of shame penalties. The criminal sanction of choice in the United States is imprisonment, but imprisonment is very costly, not only in raw economic terms but in human terms as well; those who leave prison are often worse than when they entered. Students of the criminal justice system have long claimed that for many lowgrade offenders so-called intermediate sanctions, such as fines and community service, that fall between prison and probation, are just as good as imprisonment in terms of both retribution and deterrence, but they are far less costly. Why then do we not see greater use of these intermediate alternatives?

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