What is wrong with inflicting shame sanctions?

• Author: Whitman, James Q.

We are all aware that there was a time in the western world when punishment frequently revolved around the public humiliation of the offender. Everyone likes to read about the picturesque barbarism of the old punishments: the pillory, the stocks, the ducking stool, branding, and so on.(1) Many of us are also dimly aware that such shame sanctions continue to be used in much of the nonwestern world. It is common knowledge, for example, that public humiliation of a dramatic sort was featured in the law of Maoist China; its rituals of self-criticism, public admonition, and public exposure of offenders are well known.(2) It is also widely known that such shame sanctions have continued to feature in the practice of the People's RepubliC,(3) where "economic" criminals may still be trucked around town wearing signs describing their offenses.(4) Many countries other than China are known for employing such practices as well.(5) Most recently, the media have focused on the humiliation rituals of the Islamic legal revival broadly, and of the Afghan Taliban, in particular.(6)

The scattered reappearance of shame sanctions in the United States is a surprise, however. Most of us, at least as of 1975 or so, would probably have said that sanctions of the premodern type--sanctions whose main purpose is the ritualized humiliation of the offender--had permanently vanished from our legal landscape.(7) Yet, as news magazines and newspapers have eagerly been reporting, just such sanctions have begun to reappear.(8) It is true that these practices do not often assume the lurid shapes they took in the early-modern or Maoist worlds. In particular, modern American shame sanctions lack the air of physical violence that has commonly hung about the shame sanctions of other times and places; American courts do not order offenders flogged, dunked, or branded. The current American practice takes milder forms, such as requiring offenders to wear shirts describing their crimes,(9) publishing the names of prostitutes' johns,(10) or (in a ritual not that far removed from the Chinese one) making offenders sit outside public courthouses wearing placards.(11) Unlike the premodern punishments, none of these is inflicted in the expectation that offenders will be physically assaulted. Perhaps the new shame sanctions seem more acceptable for that reason. Nevertheless, they do not seem very acceptable. But why not?

In this Essay, I want to begin by admitting the truth that our familiar liberal traditions do not give us any persuasive answer to this question. It may seem intuitively obvious that shame sanctions are barbaric and wrong. It may seem obvious that the abolition of public punishment was one of the triumphs of the great age of enlightened reform in criminal law, a century and a half or two centuries ago.(12) Certainly, it is easy to find books and articles whose authors think that there are fairly clear, and fairly damning, objections to the use of shame sanctions. Some commentators, for example, argue that shame sanctions are inordinately cruel to the offender;(13) others, that in a modern society such sanctions cannot possibly have any effect at all.(14)

Nevertheless, courts are ordering shame sanctions. And, despite expressions of discomfort, the American legal community seems unable to see any decisive objection to them.(15) At least one American scholar, Dan Kahan, has in fact cheerfully endorsed shame sanctions.(16) Another legal scholar, Toni Massaro, has attacked them,(17) but even she has conceded that such sanctions can be justified on the basis of any of the traditional theories of punishment.(18) Nor has the inability to find objections to shame sanctions been confined to the legal community. The editorial page of the New York Times itself has now declared shame sanctions worth trying, at least under certain circumstances.(19) Obvious though it may seem that shame sanctions are objectionable, it is unexpectedly difficult to give a name to what troubles us.

My plan in this brief Essay is to acknowledge this unpleasant truth--and then to try, nevertheless, to give a name to what troubles us (or should trouble us) about shame sanctions.(20) There is simply no straightforward liberal tradition, I argue, that shows why engaging in the mere public display of offenders, without corporal violence, is wrong. In particular, we can canvass all of the great liberal arguments dating to the heroic era when the old shame sanctions were principally abolished, from roughly 1750 to 1850, but we will find oddly little that is ultimately of use. The classic reformers opposed the old shame sanctions, by and large, for reasons that have almost no relevance to our own age. Shame sanctions were abolished for reasons that have little to do with contemporary American liberal theories.

Still, with some effort, we can see what is wrong with inflicting shame sanctions. Doing so will require us, however, to reject some important and appealing arguments. In the first place, it will require us to reject the argument that shame sanctions can never work in a modern, anonymous society. Contrary to this much-repeated argument, there is good reason to believe that shame sanctions can work in the contexts in which they are most commonly used--for sexual, commercial, and certain other offenses. Second, we will have to retreat from the appealing position that shame sanctions are wrong because of the way they treat the offender--that they are in some way inordinately cruel. As Professor Kahan pointedly observes, it is hard to maintain that shame sanctions, especially ones that do not involve corporal violence, are more cruel than prison; and hard, in any case, to define in a persuasive way what is "cruel" about them.(21) There are ways in which we can think of shame sanctions as "cruel," but these turn out to be unexpectedly complicated.(22)

In point of fact, I contend, the most compelling arguments against pure humiliation sanctions--sanctions that involve only public exposure and not corporal violence--do not have to do either with their ineffectuality or with their cruelty. The most compelling arguments against such humiliation sanctions do not, in fact, involve the way they deal with the offender at all. As I try to show, the most compelling arguments against shame sanctions involve the way they deal with the public, with society at large, with the crowd. In the last analysis, we should think of shame sanctions as wrong because they involve a species of lynch justice, and a peculiarly disturbing species of lynch justice at that--a species of official lynch justice. The chief evil in public humiliation sanctions is that they involve an ugly, and politically dangerous, complicity between the state and the crowd. Shame sanctions are wrong in our society for the same reason that we feel they are wrong in China, or in the Afghanistan of the Taliban: They represent an unacceptable style of governance through their play on public psychology. This evil is one that we will never fully appreciate so long as we continue to focus exclusively on the effects of shame sanctions on the offender. In fact, it is of no ultimate importance whether shame sanctions are cruel or not. Shame sanctions would be wrong even if they had no impact on the offender at all; for, no matter what, they would represent an improper partnership between the state and the crowd. Even if shame sanctions were wholly unobjectionable from the point of view of punishment theory, they would still fail the test of a sane political theory.

Such is my claim. I proceed by considering and rejecting a variety of arguments against the infliction of shame sanctions. I divide these arguments, in a rough way, into social arguments and political arguments. By social arguments, I mean those that focus on how shame sanctions work within the structure of a given society. One such argument is that shame sanctions do not work at all in a modern society. I consider this contention in Part I. Two classic reformist arguments should also be classified as social: first, that shame sanctions are wrong because they promote the spirit of social hierarchy; and second, that shame sanctions are wrong because they promote a spirit of public indecency and brutality. These two classic arguments are my topic in Part II. In Part III, I turn briefly to a different sort of social argument: the Christian argument that a good society is better disciplined through privately experienced guilt than through publicly experienced shame. After considering all of these social arguments, I turn in Part IV to two political arguments, one classically liberal argument and one classically statist argument. The liberal argument holds that, while shame sanctions can be effective, the state has no business inflicting them; only private citizens may use the sort of "moral" coercion exerted through shaming. The statist argument holds that it is permissible, but unwise, for the state to inflict shame sanctions, for public shaming can have the dangerous consequence of stirring up riots and other mob actions. Neither argument, I conclude, has any direct bearing on our current situation. Of the two, however, the statist political argument is the one that carries the soundest kernel of truth. It is really the old statist fear of public riots that tells us the most about the dangers of modern shaming.

Reviewing all of this will involve discussing a great deal of history, from the eighteenth century through the Nazi period. For that very reason, I would like to emphasize one point before beginning in earnest: This Essay is not intended to be a history of anything it discusses. My goal is not to provide a complete account of the rise and fall of western shame sanctions, nor even a complete account of any one episode in this history. My (very different) goal is to dredge the old literature for arguments that might be useful today--to learn, as it were, from the...