There’s an interesting discussion going on in the blogosphere about shaming punishments, criminal punishments designed to embarrass or shame offenders. See, for example, this post by Dan Markel (against shaming punishments), this response from Doug Berman (not against, if not exactly for), and this reply from Dan. If I’m not mistaken, I think Dan’s basic approach is expressed in this tnr.com online piece in 2004, and it’s worth quoting his argument:
[S]haming offenders is simply wrong, regardless of whether it is labeled rehabilitative or punitive. The very goal of shaming . . . 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. Such punishment involves an unacceptable form of preening and immodest sanctimony. What’s more, the condition imposed here constitutes a coerced self-laceration that conjures images of the denunciation rallies and ritual debasements of history’s least liberal regimes.
I’m basically with Doug Berman that this isn’t persuasive. I think that so-called “shaming punishments” are less of an affront to human dignity than most other punishments, such as severe prison sentences. I’ve been to a maximum-security prison, and I find it hard to understand the notion that spending a few hours holding a sign (the punishment in the Gementera case) is more an affront to human dignity than a long sentence in max. [See Update below]
More broadly, I wonder if Dan isn’t overlooking something important about shaming punishments: Don’t they rely on, and ultimately reinforce, the notion that the offender is a valued member of the community? It seems to me that the offender feels shame precisely because he values his position in the community. Thus judges hand down such punishments only when they think the offender values his position and will want to restore it to its earlier status. In that sense, then, shaming punishments are not about dehumanization, but about hope and community: the punishment is based on and recognizes the hope that the offender will feel a strong enough connection to the community that he will feel shamed, and that the community will value that person’s connection to the community enough to react to the offender. Put another way, only a community that values its members would find shaming punishments punishment at all. If no one cares about the offender, and the offender doesn’t care about anyone else, there is no shame and no punishment. In that case, they can just lock him up and throw away the key.
To be clear, this doesn’t mean that shaming punishments are good; I don’t see myself as an affirmative proponent of them. Like any type of punishment, shaming punishments may be appropriate in some cases and will be inappropriate in others. My point is only that I find flat opposition to them based on human dignity concerns to be unpersuasive. (I guess that means it’s you and me on the island together, Doug.)
UPDATE: Dan responds to Doug in this post about the prison point; Dan’s response, as I understand it, is that he is against both shaming punishments and long prison sentences, so the fact that long prison sentences are also equally or even more troubling doesn’t mean that shaming punishments are okay. In other words, opposition to one piece of the status quo should not be seen as acceptance of the rest, and the ultimate goal, as Dan puts it in a comment, is “ensur[ing] that all punishments, including the conditions of confinement, are compatible with human dignity.” That’s certainly a fair response, even if I don’t ultimately agree with Dan’s framework or conclusions. For the fuller versions of Dan’s arguments, see here.