Trending now: the use of social media websites in public shaming punishments.

Author:Goldman, Lauren M.
 
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  1. INTRODUCTION

    Imagine logging into your Facebook account and the first thing you see is a picture of someone you know. Maybe it is a friend from high school or college, perhaps a colleague, a family member, or an acquaintance you have not spoken to for years. This picture is odd because it is unlike a typical Facebook picture of a friend's wedding or a colleague's birthday party: it is that person's mug shot. Alongside the mug shot, the caption reads: "I am a thief. This is my punishment."

    At first blush, this scenario seems completely outlandish. However, shaming punishments are alive and well in today's society and are often imposed upon convicts as part of their probation conditions. Courts have yet to take these shaming punishments to the realm of online social media, but such punishments have included other forms of public display (1) and have also infiltrated print media. (2) In today's technologically driven world, it is possible that the next step for the judiciary would be to incorporate the realm of online social media into its public shaming punishments.

    Recently, the Ninth Circuit validated public shaming punishments in United States v. Gementera. (3) In Gementera, the court upheld the district court's probation condition, which required a twenty-four-year-old convicted mail thief to stand outside of a postal office for eight hours and wear a sandwich board that read: "I stole mail. This is my punishment." (4) Although humiliating, the Ninth Circuit observed that criminal conviction is inherently humiliating. (5) Subsequently, the court of appeals concluded that the district court judge, Judge Vaughn Walker, imposed the condition for the legitimate statutory purposes of rehabilitation, deterrence, and protection of the public, and that the condition was reasonably related to the purpose of rehabilitation. (6)

    One month after standing outside the postal office with the sandwich board, Gementera stole mail for the second time. (7) Gementera was again in front of Judge Walker, who expressed frustration that his original sentence had not "put [Gementera] on the right track." (8) This result raises an important question: what type of punishment would have put Gementera on the right track? As the Ninth Circuit noted in its decision affirming Judge Walker's signboard requirement, "much uncertainty exists as to how rehabilitation is best accomplished," and recidivism rates are unfortunately extremely high, regardless of the type of punishment. (9)

    Some commentators argue that although public shaming sanctions were once effective, they are no longer useful because modern societal conditions do not foster an environment in which such punishments thrive. (10) Others argue that shaming sanctions are inherently cruel and socially unacceptable. (11) Nonetheless, courts continue to implement public shaming sanctions and the legal community has been unable to agree upon a common objection to them. (12)

    As public shaming sanctions continue to be issued, one begins to wonder where they will go next. Over time, these sanctions have evolved from the placement of offenders in stocks, which restrained the offender's hands and feet between wooden boards, (13) to the positioning of the previously described offender in front of a post office wearing a signboard. (14) Further, some courts have taken these punishments to print media, requiring offenders to have their names and mug shots publicized. (15) Although Gementera became a repeat offender, it is unclear what caused this result. Gementera may have stolen mail again because his punishment included an inherently ineffective shaming punishment. On the other hand, perhaps that particular type of shaming punishment simply did not work. The judiciary has already shown vast creativity in sentencing, and it may be time to continue innovating. (16)

    Believing that public shaming punishments generally have the ability to positively affect their children's behavior, parents have utilized public shaming punishments in much the same way as courts have. (17) Some parents have even taken to their children's social media profiles to punish their children because they believe that using social media as a means to punish might be effective in today's culture. (18) If parents are using this method of punishment, it may be time for the courts to take note. Gementera was twenty-four years old at the time he committed his crime, and had been a past offender since the age of eighteen. (19) People in this age group frequently use social media websites, such as Facebook. (20) What if Judge Walker's sentence had required Gementera to post his mug shot on his Facebook page accompanied by the caption, "I stole mail. This is my punishment"? This Note proposes that this type of shaming sanction might be an effective addition to the menu of public shaming punishments the judiciary already offers. (21)

    Section II of this Note lays the foundation of shaming punishments in America, giving an overview of their history and development. Section III discusses the Ninth Circuit's recent decision in Gementera, in which the court upheld a modern-day public shaming punishment, as well as other select cases that have upheld public shaming punishments that involve print media. Section IV outlines the current scholarly debate surrounding the use of public shaming punishments. Section V gives ah overview of the presence of social media and Internet usage in today's society, discusses a new trend among parents in which parents have begun to utilize social media to punish their children, and evaluates public shaming punishments via social media websites from the vantage point of various criminal law theories. Finally, Section VI advocates for the inclusion of online social media public shaming punishments into the judiciary's already expansive list of sentencing options, but with some limitations and guidelines.

  2. THE HISTORY OF PUBLIC SHAMING PUNISHMENTS

    1. Public Shaming Punishments in Colonial America

      The Scarlet Letter illustrates the classic public shaming punishment, where the protagonist Hester Prynne must wear a scarlet letter "A" on her chest to represent her adulterous behavior. (22) In early America, shaming punishments were among the most popular methods of criminal sanctioning. (23) Vivid images of public punishments involving the stocks come to mind whereby the offender's hands and feet were restrained between wooden boards. (24) Sentences often included the requirement that the offender display a sign or write a letter announcing his wrongful behavior. (25) Flogging and branding were also used, but were considered more severe forms of public shaming punishments because they involved an element of physical pain. (26) The use of pillories, which were similar to the stocks except that the offender's head was also constrained, (27) seemingly developed to punish those criminals whose offenses did not warrant a harsh physical component. Arguably then, the only conceivable characteristic of punishment in the use of the pillory was for the purpose of public display, and thus humiliation. (28) In colonial America, these types of punishments were extremely common and the public usually participated in their administration. (29)

      Scholars offer various theories as to why shaming sanctions were so popular during this time period. One theory rests on the fact that most American societies were small, close-knit communities in which people knew each other very well. (30) Any sort of public display emanating from a criminal's offense was utterly humiliating to offenders who knew the majority of the watchful crowd. (31) Consequently, community members would be aware of the offender's crime, spread this information to others, and criminals would thus feel the sting of shame. (32) Fear of public exposure and community disapproval made public shaming punishments extremely effective because it deterred crime and controlled deviant behavior. (33) However, these punishments were only successful because of "the community's familiarity with the offender and his recognized membership to the community"; (34) if a wrongdoer did not have a connection with the community, public shaming sanctions would most likely not affect that criminal's behavior. (35)

      A related explanation for the success of shaming punishments in early America stems from the limited mobility during this time period. (36) Most residents of small communities were life-long members who rarely contemplated moving elsewhere. (37) Thus, small communities that rarely diversified their membership perpetuated the ability for shaming punishments to have a powerful effect. Additionally, because imprisonment was expensive in the colonial period just as it is today, public shaming sanctions presented a cheaper form of punishment. (38) Therefore, public shaming punishments were preferable because they were inexpensive to administer and effective within immobile communities.

      Finally, the presence of religion in colonial America played a large role in the effectiveness of shaming sanctions. (39) Community members were often "stem moralists" because of their strict religious beliefs. (40) Religious virtues infiltrated society and created "a clear manner in which citizens were expected to behave." (41) "Law and religion were so deeply intertwined that colonists even shaped their laws around their religious precepts, equating crime with sin." (42) If one was publicly shamed, it meant that he not only broke the written law but also the law of a higher power. Thus, a society in which the entire community held strong negative beliefs about criminal behavior created an environment in which shaming sanctions were extremely effective.

      The combination of close-knit communities, lack of mobility among such communities, the cost-effectiveness of public shaming punishment, and the prevailing religious discipline of the time fostered an environment in which shaming...

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