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January 21, 2014

"'Friend to the Martyr, a Friend to the Woman of Shame': Thinking About the Law, Shame and Humiliation"

The title of this post is the title of this new paper by Michael L. Perlin and Naomi Weinstein now available via SSRN. Here is the abstract:

This paper considers the intersection between law, humiliation and shame, and how the law has the capacity to allow for, to encourage, or (in some cases) to remediate humiliation, or humiliating or shaming behavior.  The need for new attention to be paid to this question has increased exponentially as we begin to also take more seriously international human rights mandates, especially -- although certainly not exclusively -- in the context of the recently-ratified United Nations Convention on the Rights of Persons with Disabilities, a Convention that calls for “respect for inherent dignity,” and characterizes "discrimination against any person on the basis of disability [as] a violation of the inherent dignity and worth of the human person..."

Humiliation and shaming, we believe, contravene basic fundamental human rights and raise important constitutional questions implicating the due process and equal protection clauses.  Humiliation and shaming practices include “scarlet letter”-like criminal sanctions, police stop-and-frisk practices, the treatment of persons with mental disabilities in the justice system, and the use of sex offender registries.  Humiliation and shame are detrimental in the ways that lead to recidivism, inhibit rehabilitation, discourage treatment, and injure victims.  They also directly contravene the guiding principles of therapeutic jurisprudence, especially in the context of its relationship to the importance of dignity in the law, and potentially violate international human rights law principles as well.

In this paper, we will explore how humiliation and shaming are bad for all participants in the legal system, and bad for the law itself.  We will urge that humiliating and shaming techniques be banned, and that, this ban will enhance dignity for the entire legal system and society as a whole.  First, we consider the meaning of shame and humiliation.  Then, we briefly discuss principles of therapeutic jurisprudence (TJ) and its relationship to the significance of dignity, and then consider recent developments in international human rights law, both of which are valuable interpretive tools in this conversation. Next, we consider how the United States Supreme Court has considered these concepts in recent cases.  Following this, we consider several relevant areas of law and policy from the perspective of how overt shaming is employed: scarlet letter punishments, use of the police power, treatment of institutionalized persons with mental disabilities and elders, and sex offender registry law.  We then, using a TJ filter and drawing on international human rights law principles, examine why these shaming tactics are contrary to bedrock principles of the legal system: the mandates to honor dignity, to minimize recidivism, and to enhance rehabilitation.

January 21, 2014 at 05:50 PM | Permalink

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Comments

I advocate humiliation, fasting, prayer, & shaming (among other thngs). The Amish emphasise shaming & shunning,
and have long benefited from the peaceful results. I have years of indirect knowledge of Mennonites, and a Men. Bishop;
they likewise have proven that true love must include discipline.

A community without contrite sinners and with little shame for disgraceful acts maximises recidvism.

Posted by: Adamakis | Jan 21, 2014 8:54:54 PM

Shame is an important human emotion but that's different from use of governmental power to bring it about. There is not going to be a removal of shame from punishment.

It is going to be some part of it -- judges, e.g., are not going to stop all moral exhortations from their sentencing statements about how horrible such and such a crime is and how the person specifically should be damned (such will be the effect no matter the language) for performing them. The prisoner in the dock is going to feel ashamed in some fashion. Prison is in part a place of shame, where your liberty is taken and you have to understand you are in a big part no longer in control -- if this doesn't cause one some shame, it is problematic. And, simply announcing that a person is a convicted criminal will be shameful. Unless it is kept secret, shame will come.

There are degrees though w/o reading thru 74 pages. There is a way to in some fashion be shameful w/o totally robbing people of dignity. Good luck with that though.

Posted by: Joe | Jan 22, 2014 12:07:05 PM

This is a complicated subject, too much for any lawyer intellect. Example, story today about Tonya Harding being favored by the press, and her beautiful, innocent victim reviled.

Tell people, I am a sex offender, hussies are calling for a date now.

Get on Tv, Green River serial killer caught. The marriage proposal have to be answered by staff, being too many.

Defraud a church for Pete's sake. Now you have better credibility in your prison ministry.

The attention is highly rewarding and will increase crime. That is one reason to avoid public executions.

Posted by: Supremacy Claus | Jan 22, 2014 4:08:57 PM

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