Extract
Avoiding the shameful backlash: social repercussions for the increased use of alternative sanctions.
INTRODUCTION
For many years, the criminal justice system relied upon jail time to punish serious offenses and fines to penalize less substantial misdeeds. Middle ground was hard to come by. But with prisons overcrowded, state budgets overdrawn, and society reluctant to let crimes go unpunished, a smattering of innovative judges across the country have been turning to what are termed "alternative sanctions." Instead of incarceration or fines, judges are getting creative. They increasingly order sanctions that are all about publicity, forcing convicts to make a "mea culpa message to the community." (1) So, drunk drivers are forced to advertise their misdeeds with bumper stickers on their cars, (2) petty thieves are required to broadcast their transgressions by parading as human billboards, (3) and men caught soliciting prostitutes are outed on public television--sometimes even before they are convicted of their crimes. (4) Shaming penalties, broadly defined, are those sanctions that shine a spotlight on offenders in order to warn others of antisocial activity and of the miscreants perpetrating the deeds. Of course, every criminal sanction seeks to impose some degree of "shame" on the offender, but shaming sanctions go a step beyond the relative anonymity of isolated imprisonment or passive fine-paying by broadcasting to all who will listen and by seeking to provoke communal outrage. Proponents of shaming argue that it appropriately expresses society's disgust for criminal activity. Moreover, the stigmatizing effects of publicizing crime are costly for the people being shamed, and these costs have the potential to deter shamed convicts from repeating their criminal acts. Best yet, implementing shaming sanctions is far less costly than incarcerating offenders, (5) so alternative sanctions allow us to enforce the crimes on the books more completely. Although the amount of specific deterrence generated by shaming penalties is generally acknowledged to be an empirical question for which little data is available, (6) the topic has garnered significant scholarly attention discussing how best to reduce the rate of recidivism. (7) In the judicial system, with state criminal sanctions generally left to judicial discretion, most examples of shaming have been isolated to individual judges or probation officers with a penchant for shame. (8) But in a logical next step, Dan Kahan and Eric Posner have recommended amending the federal sentencing guidelines to expressly allow for--and thereby encourage--the widespread stigmatic shaming of white-collar criminals. (9) These scholars are not alone in their calls to bring back certain penalties more readily associated with colonial times than the twenty-first century. After American citizen Michael Fay was caned for a vandalism conviction in Singapore, movements in Tennessee, Mississippi, and Arkansas called for reintroducing caning, paddling, and even public hangings into the penal system. (10) Mississippi state representative Steve Holland proclaimed himself "fully convinced this will prove a deterrent to crime." (11) Because shaming is so cost-effective, it also creates the possibility that some crimes of public morality, currently unenforced, will return to favor. (12) Adultery is still officially illegal in twenty-four states, and while prosecutions are infrequent, Virginia prosecuted an adultery case in 2004. (13) After the defendant entered a guilty plea, the prosecutor proclaimed "it should now be widely known that adultery is a crime in Virginia." (14) With shaming penalties increasing in recent years and the possible normalization of shaming looming on the horizon, it is a bit surprising that virtually all of the academic activity in shaming has focused on the criminals. To be sure, specific deterrence is necessary for a punishment to be effective, but it is not the only consideration. Punishment is a social function; the act of punishing reflects our social norms but also carries the capacity to reshape those norms and to al...See the full content of this document
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