Avoiding the shameful backlash: social repercussions for the increased use of alternative sanctions.

• Author: Netter, Brian

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 alter our social dynamics. (15)

This Article seeks to shift the debate on shaming to question its effect on social norms. We regularly choose to abide by the laws of the state because we are driven, interchangeably, by personal self-interest, social reciprocity, and inner morality. Shame interacts with each of these core instincts; thus, we must learn where alternative sanctions reinforce our aversions to crime and where they perversely detract from legal compliance. There are no easy answers here, but our goal is to set out the contours of the three elemental aversions to crime so that empiricists can test these hypotheses and so that policy-makers and sentencing officials can better craft penal sanctions to avoid those that would prove counterproductive. The discussion that follows addresses what is essentially a policy concern for when shaming could be effective; in approaching shaming from this policy perspective, I side-step the constitutional concerns many scholars and judges have raised as to whether shaming constitutes "cruel and unusual punishment[]" in violation of the Eighth Amendment, (16) because this debate is mooted where shaming is ineffectual.

Before we choose to formalize shaming sanctions, we must be wary of the effects of increased shame. Intuitively, a saturation of shaming penalties would lead to less media coverage and would render the sanctions themselves less effective as specific deterrents. But this Article goes further. The reasons people do not commit crimes are complex, but these human heuristics interact meaningfully with our views of social morality, reciprocity, and retribution, and each of these factors is uniquely influenced by public displays of shame. This Article will argue that, for certain crimes, society would be best-served by not flaunting the extent of legal non-compliance so as to maintain the impression that only deviants would engage in such behavior. And while such end-motivated social engineering is typically best avoided, this analysis is crucial in the context of a social program, like shaming, whose motivation stems from utilitarian foundations.

Because shaming punishments are not systematically applied and because general deterrence is notoriously difficult to detect, the effects of the growth of shaming will not be measurable directly until shaming actually takes off. But that may be too late to save some social norms that are particularly sensitive to the perceived rate of social compliance.

Part I of this Article provides a psychological account of the primary reasons people abstain from committing crimes, using the strength of our social norms to distinguish the powers of rational economics, social reciprocity, and inner morality. Parts II, III, and IV then address, in turn, how these psychological constituents are both bolstered and hindered by criminal sanctions and what this implies for shaming. Ultimately, we see a web of effects that, while difficult to parse, suggests that shaming penalties should be focused and specific in order to avoid sending signals that perversely detract from broad compliance with the law.

1. WHY PEOPLE COMPLY WITH THE LAW

   Many scholars have spent their careers trying to understand what makes criminals tick. The idea that there is a "criminal mind" that differs from the innocent mind has been propped up and debunked time and again. (17) The intrigue in criminal psychology is understandable. With the development of the positive school of criminal law in the late nineteenth century, crime began to be seen as "a natural and social phenomenon[] that ... cannot be understood unless its causes, whether inherent in the delinquent or in his environment, are traced." (18) So social scientists set out to trace the causes of crime. In the process, crime has been described as a response to those who feel left out of society, (19) as one of fifty-two thinking errors, or as a system of eight overlapping thinking patterns. (20) This is not the forum to adjudicate that dispute, nor is it necessary in our analysis of shaming. For our purposes, it is important to note only the non-controversial point that criminal activity and social values are tightly knit. (21)

   Although most research focuses on why a minority of people do commit crimes, our concern is why the majority do not. It is not enough to say that the absence of a thinking error leads to criminal law compliance, because learning and abiding by criminal laws often requires affirmative effort and exacts certain costs on each member of society. (22) And yet, the vast majority of us are motivated to learn and obey the rules of the state because we fear the consequences, because we share in the communal benefits of compliance, or because some crimes are just too heinous to imagine ourselves committing.

   To understand why we do not commit crimes, we must briefly develop a sense of the social norms that bind us. We can define a "norm," as do Ernst Fehr and Simon Gachter, as "(i) a behavioral regularity that is (ii) based on a socially shared belief how one ought to behave which triggers (iii) the enforcement of the prescribed behavior by informal social sanctions." (23) These norms, in turn, can be characterized as three types: rational, reciprocal, and moral.

   The simplest norms are "rational" in the tradition of law and economics. Generally speaking, we avoid doing anything that generates an expected net disutility. We regularly engage in cost-benefit analyses to determine how many miles-per-hour exceeding the posted speed limit we are willing to drive or whether waiting for a proper "walk" signal is an effective use of our time. We are choosing to obey--or ignore--the law as self-interested cost-minimizers, so if the legal penalties for a given misdeed plus the reputational costs of being branded a miscreant, discounted by the probability of apprehension, exceed the benefits of an act or omission, the "rational"...