Shame on you: an analysis of modern shame punishment as an alternative to incarceration.

• Author: Book, Aaron S.

Cursed is the ground because of you; In toil you shall eat of it All the days of your life.... Then the Lord God said, "Behold, the man has become like one of Us, knowing good and evil; and now, lest he stretch out his hand, and take also from the tree of life, and eat, and live forever"--therefore the Lord God sent him out from the garden of Eden, to cultivate the ground from which he was taken.(1) Daniel Alvin stood before Georgia State Court Judge Leon M. Braun, Jr., to receive his sentence after being convicted of eight counts of theft.(2) Alvin, husband to a pregnant wife and father of disabled eight-year-old twins, convinced eight victims to hand over money for Atlanta Hawks basketball tickets and a charter bus ride to the game.(3) The tickets and the bus ride never materialized.(4) The police did, however, and charged Alvin with theft by taking.(5)

Judge Braun decided to offer Alvin a choice: he could spend six months behind bars, or he could spend five weekends in jail and walk around the Fulton County Courthouse for a total of thirty hours wearing a sign that read "I AM A CONVICTED THIEF."(6) Alvin chose the second option and dutifully carried his sign around the courthouse to the honks and cries of passersby.(7) Although the sentence caused Alvin significant embarrassment in his community, he spent minimal time in jail, and his family stayed together.(8)

Judge Braun's decision to offer Alvin an alternative to incarceration represents a growing trend among sentencing judges.(9) Frustrated with the ineffectiveness of traditional forms of punishment, judges are imposing sentences of shame upon convicted criminals more frequently.(10) Ranging from the mundane to the Byzantine, such sentences are not without controversy.

Professor Dan Kahan, a supporter of shame punishment, believes that "[s]haming is a potentially cost-effective, politically popular method of punishment" that will enjoy future success because people "want[] more from criminal punishment. They want a message. They want moral condemnation of the offender."(11) On the other side of the debate, Mark Kappelhoff of the American Civil Liberties Union criticizes shame punishment as "[g]ratuitous humiliation of the individual [that] serves no societal purpose at all."(12) Mr. Kappelhoff adds that "there's been no research to suggest [that] it's been effective in reducing crime."(13) While the issues are far from settled, there is no doubt that shame is receiving national attention.(14)

This Note discusses and analyzes the modern reemergence of shame punishment as an alternative to traditional sentencing practices and explores appellate court treatment of shaming cases. This Note suggests that judges who incorporate shame into their judicial arsenal as a form of probation, rather than punishment, do so erroneously. Consequently, when offenders appeal these shame-probation conditions, appellate courts subject them to a standard of judicial discretion rather than a more appropriate and more deferential standard of "cruel and unusual punishment" under the Eighth Amendment.(15) Application of the judicial discretion standard leads appellate courts to find that imposition of shame-probation violates the fundamental goal of probation--rehabilitation of the offender.(16) The appellate court then reverses the lower court's shame-probation sentence, and the offender either enters the traditional probation system or must serve a jail sentence. Alternatively, judges could impose shame as a punishment, but many state sentencing guidelines do not provide them with the latitude necessary to justify such sentences.(17) This Note argues that if shaming is to succeed, legislatures must alter the statutory limits of punishment to include a shaming option.

The secondary purpose of this Note is to evaluate the efficacy of shaming as a form of punishment. Virtually no empirical data exists detailing the effectiveness of shaming in deterring crime and reducing recidivism rates; however, ample data suggests that current forms of sentencing are ineffective in punishing and/or rehabilitating criminals.(18) Moreover, the majority of offenders in the prison system today are nonviolent drug offenders who would benefit from an alternative form of punishment.(19) Currently, nonviolent offenders are sent to prison where, like other prisoners, they are subject to brutalization.(20) Upon release, they are typically disenfranchised, deemed inferior citizens by their peers and potential employers,(21) and, in many circumstances, they see no alternative but to return to a life of crime.(22) Such a narrow-minded formulation of punishment by the criminal justice system is outdated and serves only to make more hardened and violent criminals. This Note maintains that, in light of the current violent and overcrowded atmosphere of American prisons, shaming constitutes an efficient, fiscally sound, and creative form of sentencing that can have positive deterrent effects and reduce recidivism rates.

The first section of this Note discusses the evolution of shaming in the American criminal justice system. It also discusses why shaming, as it is imposed today, should be classified as punishment in light of the goals of probation as opposed to the goals of punishment. The second section briefly explores several principal cases recently decided by state appellate courts that involved shaming. The third section sets forth the rationale for applying an Eighth Amendment standard of review to shame punishment, and argues that shame punishments meet this standard. A focal point of this section analogizes shame punishment with the more severe, and controversial, corporal punishment. The section concludes that corporal punishment, while extremely unlikely to reemerge as an acceptable form of punishment, would indeed pass the cruel and unusual standard imposed by the Eighth Amendment.

The fourth section explores the efficacy of shaming. This discussion focuses on the psychological aspects of shaming and whether it deserves a place in the American criminal justice system. The fifth section of this Note provides an analysis of the need for shaming given the current overcrowding in prisons, the shrinking number of prisons, and increasingly tight law enforcement budgets. The sixth section concludes with a discussion of the future of shaming. This section suggests several limitations on the substance and imposition of shame punishment to ensure that judges impose these types of punishments on individuals for whom shaming has the greatest potential advantages.

THE EVOLUTION OF SHAME

As the opening quotation of this Note indicates, the notion of shame is a fundamental aspect of human existence.(23) It is no surprise, therefore, that early forms of punishment focused on the idea of shame. Imposition of shame punishment can be traced back to the dawn of civilization.(24) In its earliest forms, shame punishment was based on one's essential attachment to society and civilization.(25) Tribes, communities, and villages were essential to life. Indeed, in early times, the community was synonymous with life itself.(26) One of the harshest forms of punishment was banishment from one's community.(27) Such punishment ensured a life of hardship or, perhaps, death.(28)

Shaming continued to evolve throughout Europe with the invention of bizarre and horrifying methods of public torture that typically ended in the death of the accused.(29) These methods traveled to America where, thankfully, they became less brutal, but no less humiliating. For relatively minor offenses, a citizen received an admonition--he appeared before a magistrate to be publicly and formally denounced.(30) More serious offenders were sent to the pillory or stocks.(31) The most egregious offenders faced the brutish shaming ritual of branding or mutilation, thus "fixing on [the offenders] an indelible `mark of infamy' to warn the community of their criminal propensities."(32) For example, in Williamsburg, Virginia, an individual convicted of thievery was nailed by the ear to the wooden brace of the pillory for a period of time that depended upon the seriousness of his offense.(33) After the offender served his sentence, the authorities ripped him from the pillory without first removing the nail.(34) The individual was thus "ear-marked" as a criminal offender for the remainder of his life.

Gradually, this "gloomy festival of punishment"(35) began to lose favor as America became a more progressive society.(36) Punishment evolved from the physical to the psychological, as citizens and legislators began to embrace the philosophy of institutionalized punishment.(37) As Americans moved westward, settlers realized the effectiveness of jails and prisons for housing society's offenders.(38) The efficacy of shaming began to wane as society became more mobile.(39) America was expanding rapidly, and individuals were no longer confined to their town or village.(40) As a consequence, a criminal shamed in one community could easily pick up and move to another and enjoy a fresh start.(41) By the dawn of the twentieth century, many courts had rejected shame as a useful form of punishment.(42) Shame then experienced a period of dormancy until the late twentieth century, when it enjoyed a creative renaissance in a more enlightened form.

CASE ANALYSIS

Beginning in the mid-1970s, trial judges began to reincorporate shame into their judicial arsenal.(43) Sentences incorporating shame punishment have encountered varying degrees of acceptance at the appellate level.(44) The practice of assigning shame-related punishment to offenders has continued to the present, with judges developing new methods of punishing criminals without having to send them to prison. This section first provides a sample of the types of shame cases that have reached the appellate level in several states and explains the decisions in those cases. These decisions illustrate how courts are...