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Tuesday, November 28, 2006

Should "Shame" Return to the Criminal Justice System?

Or is shame is social discourse enough?  If there's any good that has come out of the abandoned OJ "If I Did It" project, it's proof that the U.S. society has learned how to appropriately use the centuries-old weapon of shame.  But where is the line of appropriateness drawn? Some scholars are pondering the increased use of shame in the criminal justice system as a tool to reattach society's voice to offensive behavior.  Every now and then, you hear of judges giving "scarlet letter" type punishments.  One program sent men found guilty of soliciting prostitutes to a "School for Johns," where they received lectures from former prostitutes. Neo-Nazis were made to watch the film "Schindler's List," listen to stories of Holocaust survivors and meet with a preacher they planned to kill.  But critics fear that an increased use of shaming will lead to violations of dignity and a dangerous return to vigilante-style justice.

Here's an excerpt from a washingtonpost.com article on the use of shame in the criminal justice system, with comments from Penn CrimProf Stephanos Bibas, Cornell CrimProf Stephen P. Garvey, and Chicago CrimProf Eric Posner:

For nearly two centuries, using shame as a weapon against wrongdoing has steadily fallen into disfavor in the United States, even as it continues to be an essential part of social discourse in more traditional societies. After the rise of penitentiaries around 1800, the idea of shaming wrongdoers was replaced by more impersonal forms of punishment such as incarceration. But in the past decade or two, a number of scholars have become interested in the uses of shame, especially in the criminal justice system. Penn CrimProf Stephanos Bibas and others think the steady erosion of shame in U.S. courts and society has proved financially costly to the country, deprived victims of a sense of vindication and kept wrongdoers from feeling remorseful.

Murdoch's withdrawal of Simpson's book and a Fox television special about it scheduled to run during the November sweeps was evidence that shame could be effective where the law was impotent, said Bibas. There was nothing illegal about the book, but the widespread media coverage of the project and the collective revulsion of the country shamed Murdoch into retreat. Where shame was once integral to how wrongdoers were dealt with -- offenders publicly whipped, put in stockades and pilloried in Colonial America -- it faded out of the justice system based on the idea that offenders should not be subjected to cruel and unusual punishment. And psychotherapists, including Sigmund Freud on down, showed how shame can damage people.

When those techniques work, as Cornell University law professor Stephen P. Garvey explored in an analysis of shaming punishments, society saves money because offenders do not have to be locked away for eons, victims have a sense of being made whole again and punishment becomes more than retribution -- social pressure from family and peers can shame wrongdoers into remorse in a way that locking them up and throwing away the key cannot.

[But] critics say, it is less important that offenders be remorseful than it is that they be locked away and kept from hurting their victims again...Garvey and Bibas acknowledge these concerns and say shaming punishments have limitations when it comes to violent crime. But done right, they say, creative punishments have an element not just of justice but poetic justice. Full story from washingtonpost.com. . . [Michele Berry]

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There are many problems in this argument.

One program sent men found guilty of soliciting prostitutes to a "School for Johns," where they received lectures from former prostitutes. Neo-Nazis were made to watch the film "Schindler's List," listen to stories of Holocaust survivors and meet with a preacher they planned to kill.

Is this really shame? Or is it an effort to elicit empathy through education? Is that what shame is? Do we usually think of shaming punishment as empathy builders? Does shame ever do the opposite and repress empathy?

University of Chicago law professor Eric Posner pointed out that Murdoch owns tabloids that publish "grotesque" stories such as what meals people on death row are eating, meaning that his retraction of the Simpson book may be less about remorse than damage control.

Indeed. And what of the shaming of Michael Richards? A ruined career, "demands" of a six-million dollar fine, and even threats of violence. It's akin to a spiritual lynching and what options are left to Richards? Maybe his options are so limited now that if he wants to keep doing comedy, he would have to spend that 6 mil on a new KKKomedy club instead. Richards would not feel at home with the KKK, however. There seems to be a bit of confusion between "shaming" and "ostracism," which was the ultimate goal in both cases. Shaming is intended to bring the shamed back into the fold as a new a complete spiritual being. Ostracism is the opposite of that.

When a 3-year-old hits his brother and his parents make him apologize, the apology may be utterly insincere, but repeated apologies teach the child to internalize the idea that hitting other people is wrong.

Or maybe it teaches children that lying after doing wrong is expected. Again, this shaming has nothing to do with empathy. For shaming to work as it did in the Puritan days, the shamed would...

1) Have to care about who is shaming them and respect their reasons.
2) Would have to want to return to the fold.
3) Would have to understand that shaming is not an attempt to repress the spirit, but is an attempt to build it into something more social.
4) Would have to know they are more than welcome back into the community once the shaming punishment is complete.

Intentional or not, public sex offender registries shame, but the purpose is not to bring the offenders back into the fold. No, it is now obvious the intent is banishment. That is the logical conclusion of unchecked shame. Shame punishment without the moralistic coloring is well depicted in Shirley Jackson's "The Lottery." Our Founders were well aware of the dangers of the tyranny of the majority. Shaming, at least, might be less tyranny of the majority than what rules today. And at least the public might realize it is a person they are shaming.

Posted by: George | Nov 29, 2006 11:50:13 AM

There are many problems in this argument.

One program sent men found guilty of soliciting prostitutes to a "School for Johns," where they received lectures from former prostitutes. Neo-Nazis were made to watch the film "Schindler's List," listen to stories of Holocaust survivors and meet with a preacher they planned to kill.

Is this really shame? Or is it an effort to elicit empathy through education? Is that what shame is? Do we usually think of shaming punishment as empathy builders? Does shame ever do the opposite and repress empathy?

University of Chicago law professor Eric Posner pointed out that Murdoch owns tabloids that publish "grotesque" stories such as what meals people on death row are eating, meaning that his retraction of the Simpson book may be less about remorse than damage control.

Indeed. And what of the shaming of Michael Richards? A ruined career, "demands" of a six-million dollar fine, and even threats of violence. It's akin to a spiritual lynching and what options are left to Richards? Maybe his options are so limited now that if he wants to keep doing comedy, he would have to spend that 6 mil on a new KKKomedy club instead. Richards would not feel at home with the KKK, however. There seems to be a bit of confusion between "shaming" and "ostracism," which was the ultimate goal in both cases. Shaming is intended to bring the shamed back into the fold as a new a complete spiritual being. Ostracism is the opposite of that.

When a 3-year-old hits his brother and his parents make him apologize, the apology may be utterly insincere, but repeated apologies teach the child to internalize the idea that hitting other people is wrong.

Or maybe it teaches children that lying after doing wrong is expected. Again, this shaming has nothing to do with empathy. For shaming to work as it did in the Puritan days, the shamed would...

1) Have to care about who is shaming them and respect their reasons.
2) Would have to want to return to the fold.
3) Would have to understand that shaming is not an attempt to repress the spirit, but is an attempt to build it into something more social.
4) Would have to know they are more than welcome back into the community once the shaming punishment is complete.

Intentional or not, public sex offender registries shame, but the purpose is not to bring the offenders back into the fold. No, it is now obvious the intent is banishment. That is the logical conclusion of unchecked shame. Shame punishment without the moralistic coloring is well depicted in Shirley Jackson's "The Lottery." Our Founders were well aware of the dangers of the tyranny of the majority. Shaming, at least, might be less tyranny of the majority than what rules today. And at least the public might realize it is a person they are shaming. That is unlikely however given the impersonal nature of blogs and forums.

In short, shaming is a very personal and intimate punishment. Is that possible now?

Posted by: ProzacNation | Nov 29, 2006 12:04:07 PM

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