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]