One L(ove)

November 9, 2008

Public Humiliation and the Law

Filed under: Uncategorized — galileehitchhiker @ 11:07 pm
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Yesterday, I watched an episode of Taboo (seriously one of the greatest shows on television), which comes regularly on the National Geographic Channel (“check your local listings for airtimes”). The episode was dedicated to punishments and it was divided into three segments: 1. blood feuds in Albania; 2. open prison system in India; and 3. public shaming in the United States. While the other two segments were intriguing, the last one was extremely interesting since it’s what’s happening at home.

The setting for the segment about public shaming was Dayton, Tennessee. An 18 year old student got in trouble with the law after he stole a CD from a record store. The reason he stole the CD was because a fellow student told him that he would be his friend if he did so. Now, this seems like a ridiculous reason for stealing but I felt sorry for him because he had no friends and he was desperate for communication. But still, that shouldn’t excuse him for stealing. So Judge McKenzie, who was going to sentence him, offered the kid two choices: either go to jail for ten days or walk in front of the store from which he stole for four days while carrying a sign that lets people know what he did. The kid, foregoing this right to an attorney, chooses the latter option. So for four days, this kid carries a sign saying: “I stole from this store and am walking due to an order by Judge McKenzie.”

Apparently, this is becoming a popular practice, especially in the South. Tennessee and Texas have judges that issue what is termed as “shame punishment.” This reminds me of Nathaniel Hawthorne’s Scarlet Letter where the character Hester Prynne wore an “A” (for adultery) on her clothes. Shame punishment is not a new concept. It had been an old practice but eventually faded away when we became concerned with human rights. However, as can be seen from its recent revival, it didn’t totally die out.

Now, the issue is whether this is a good way to punish a perpetrator of a petty crime? There is no doubt that it is effective in the sense that public humiliation is one of our greatest fears and we try to avoid any situation that would make us a social stigma. To be subjected to humiliation of such type definitely affects us deeply in the psychological realm. So what are the arguments for it? Well, there are quite a few. There are arguments grounded in communitarianism, stating that public shaming will allow for a community to be united in reacting with shame towards certain acts that violate social “norms.” Thereby the community takes a central role in defining what is public policy. Also there are more economical arguments such as that shame punishment will keep petty criminals from being incarcerated, thereby saving taxpayers money. And of course, there is the argument of deterence – that it’ll keep potential violators at bay. Statistics, documented in the episode, show that only 9% of those who received shame punishment violated probation. Therefore, a person who experiences public humiliation will be more likely to have his behavior “rectified” and become once again part of the community.

Notwithstanding my own personal bias against public shaming and any other sort of public punishment, one has to wonder whether these judges who authorize shame punishment are overlooking the consequences of their decisions. There are certainly many problematic issues raised by such punishment. Does it not compromise human dignity? For those of you who are among the godawful people who argue that criminals forfeit their right to human dignity, keeping in mind that such punishment is reserved for petty crimes, wouldn’t public humiliation have a disastrous impact upon the lives of the perpetrators of these crimes? Isn’t it possible that such punishment can have a more direct harm upon the lives of these offenders than is actually thought of? Is it possible that becoming socially stigmatized by one’s own community could lead to devastating consequences such as suicide? Isn’t the position of the communitarians dangerous in the sense that having the community as a whole punish the offender paves the way for mob justice? Suppose a man walking with a sign saying that he killed two people while driving drunk (as was shown in the episode) is confronted by a person who was related to or was good friends with another person who died due to a drunk driver, how could such an encounter end? Isn’t it possible that shame punishment actually overlooks the real problem and does not address the real issue or motivation behind an offense? What if a person who stole did so due to a drug problem? Should the law take emotions into consideration? For a great treatment of how the twin emotions of shame and disgust play a role in law, check out this sample chapter from Martha Nussbaum’s book (which I really want to get!) called Hiding from Humanity: Disgust, Shame, and the Law: http://press.princeton.edu/chapters/i7697.html

haha, Won’t I make a great editor of a casebook? Watch out, Dressler!

Currently listening to: Portishead – Dummy

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