Calling officer hester prynne! The promises and pitfalls of employing public shame as a deterrent for police misconduct

• Author: Quinlan Cummings
• Pages: 179-201

NOTES

CALLING OFFICER HESTER PRYNNE! THE PROMISES AND

PITFALLS OF EMPLOYING PUBLIC SHAME AS A DETERRENT

FOR POLICE MISCONDUCT

Quinlan Cummings*

INTRODUCTION

“I literally could not put my phone down. Whether I got shot or not, this needed

to be documented.”

1

The Peace Reporters: The Police Dressed for War. The People Showed Up with Cameras, THE VERGE,

https://www.theverge.com/c/21355122/police-brutality-violence-video-effects-trauma-civil-rights-black-lives-

matter (last visited Dec. 2, 2021).

Those words were spoken by the bystander who used their

smartphone to capture the moment that police in Austin, Texas opened fire on

peaceful protestors seeking medical assistance for 20-year-old Justin Howell.

2

See id.; see also Christina Maxouris & Raja Razek, Austin Police Fired at Crowd Transporting Protester

Injured by an Officer, CNN (June 7, 2020, 10:26 PM), https://www.cnn.com/2020/06/07/us/austin-texas-police-

bean-bag-20-year-old-injured/index.html.

An

officer had shot Howell in the back of the head with “nonlethal” beanbag rounds.

3

The video spread like wildfire on social media, leading to a ban on nonlethal

rounds by the Austin City Council and a proposed 100 million dollar budget cut

for the Austin Police Department.

4

This event, while horrifying, is not uncommon.

In the past decade, a proliferation of bystander videos of police violence have cir-

culated online, revealing the disturbing extent to which some officers abuse their

authority and enflaming public unrest about police misconduct.

5

See Nicol Turner Lee, Where Would Racial Progress in Policing be Without Camera Phones?, BROOKINGS

INST. (June 5, 2020), https://www.brookings.edu/blog/fixgov/2020/06/05/where-would-racial-progress-in-

policing-be-without-camera-phones/; Karen Hao, How to Turn Filming the Police Into the End of Police

Brutality, MIT TECH. REV. (June 10, 2020), https://www.technologyreview.com/2020/06/10/1002913/how-to-

end-police-brutality-filming-witnessing-legislation/.

This increased

trend in civil vigilantism raises the question: why do civilians feel obligated to film

officer misconduct?

* Georgetown University Law Center, J.D. 2022; Georgetown University, B.A. 2019. I would like to extend a

special thank you to Professor Christy E. Lopez, who offered invaluable guidance throughout the writing process

of this Note. I also extend thanks to the entire staff of the American Criminal Law Review for their diligent effort

and professionalism in the editing of this Note—as always, the work of the ACLR staff is unparalleled in quality.

© 2023, Quinlan Cummings

1.

2.

3. See The Peace Reporters: The Police Dressed For War. The People Showed Up With Cameras, supra

note 1.

4. Id.

5.

179

This Note argues that our system has failed to employ formal measures to deter

inappropriate use of force by police.

6

Therefore, bystanders film and circulate vid-

eos of police misconduct online to use public shame as extrajudicial deterrence.

While evidence is limited on this novel topic, public shame appears to be an effec-

tive deterrent to police misconduct. This Note shall proceed in three parts: Part I

explains deterrence theory generally, how it applies to police misconduct, and how

public shame acts as a deterrent to wrongdoing. Part II explores how public sham-

ing, by filming the police, deters police misconduct. While body-worn cameras

demonstrate that filming the police can reduce their propensity for misconduct,

they have been insufficient deterrents because the police control how these cam-

eras, and their footage, are used. Bystander videos, in contrast, present the promise

of effective deterrence because the public controls the footage. When these videos

are circulated online, the public shame they inspire presents an extrajudicial sanc-

tion that deters the police from misconduct. Finally, Part III argues that the deter-

rent effect of public shame should only be used as a means of reforming police

misconduct, not as an end. Public shaming cannot be accepted as an end itself with-

out undermining legitimate rule of law, where respect for the law rather than fear

of public shaming deters misconduct.

I. APPLYING DETERRENCE THEORY TO POLICE MISCONDUCT AND PUBLIC SHAMING

Deterrence theory rests on the notion that rational actors will avoid wrongdoing

where the likely punishments for such actions outweigh the probable benefits.

Thus, the police are theoretically rational actors who will be deterred from miscon-

duct because job loss and legal sanctions are severe punishments. In practice, the

police continue to commit misconduct because our system weakens the likelihood

of adequate repercussions. This Part will consider how deterrence theory should

apply to cases of police misconduct and the ways in which our system undermines

the efficacy of deterrence.

A. The Foundational Theory of Deterrence

The preeminent foundational sources of deterrence theory are On Crimes and

Punishments (“On Crimes”),

7

an essay written by Enlightenment philosopher

Cesare Beccaria in 1764, and An Introduction to the Principles of Morals and

Legislation (“Introduction to the Principles”),

8

a book written by philosopher

Jeremy Bentham in 1789. Beccaria, considered the father of deterrence theory,

6. While “police misconduct” can refer to a number of wrongful police actions, from using offensive language

with a civilian to unlawful searches and seizures, this Note will use police misconduct to solely refer to “uses of

force,” or excessive and/or unreasonable levels of violence employed by an officer against a civilian in the course

of duty. For example, uses of force include chokeholds, beatings, and unnecessary roughness when executing

arrests and searches.

7. CESARE BECCARIA, ON CRIMES AND PUNISHMENTS (W.C. Little & Co. 1872) (1764).

8. JEREMY BENTHAM, THE PRINCIPLES OF MORALS AND LEGISLATION (Batoche Books 2000) (1789).

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