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May 26, 2014

"Is public shaming fair punishment?"

The title of this post is the headline of this recent Los Angeles Times commentary by Patt Morrison on an alternative punishment topic I always find interesting. Here are excerpts:

You play the judge: How would you sentence a man who spent 15 years picking on his neighbor and her handicapped children? A Cleveland judge sentenced just such a man, Edmond Aviv, to jail, community service, anger management and mental health counseling — and to spend five hours alongside a busy street on a Sunday in April with a great big sign branding him an intolerant bully.

The 8th Amendment bans cruel and unusual punishment. Is this either one? Or can justice be fairly meted out in something other than years and months behind bars?

In 2012, a different Cleveland judge gave a woman a choice of going to jail or spending two days standing on a street corner with a sign reading: "Only an idiot would drive on the sidewalk to avoid a school bus." The woman chose to hold the sign.

Puritan punishments like locking someone's head and hands in the stocks seem like retribution, not justice. In "The Scarlet Letter," Hester Prynne, was an adulterer, not a thief. Puritans believed in shame as a behavior corrector. But Prynne flaunted and even co-opted the "A" she was condemned to wear.

Should shame be a component of punishment? Does taking someone down a peg set a miscreant straight, any more than locking him up? And should it be at a judge's discretion?...

Judges have sentenced a La Habra slumlord to live in his own run-down building under house arrest for two months, and made an Ohio woman who abandoned 33 kittens spend a night alone in the woods. In a case that made the legal textbooks and withstood appeal in 2005, a San Francisco mail thief was ordered to stand on the post office steps with a sign that read: "I stole mail and this is my punishment."

It's hard to track the deterrent effect of such creative punishments because they happen so rarely. And judges have so much power and discretion that creative sentencing could mean wildly and unfairly different punishments for the same crime between one courtroom and the next — one reason that sentencing guidelines and laws exist in the first place.

Daniel Markel, the D'Alemberte professor of law at Florida State University and an expert on sentencing, points out that if these punishments didn't have some efficacy, "there probably wouldn't be much resistance" from miscreants, but "in fact defendants typically don't want to be publicly shamed because they realize there is something publicly humiliating about being exposed in the streets."...

The element of choice that comes up in some kinds of creative sentencing might also give us pause. In California and elsewhere, convicted sex offenders have requested castration — chemical and actual — to get out of prison. Civil libertarians object on "cruel and unusual" constitutional grounds, because it amounts to no choice, and because it gets dangerously close to the medieval notion of cutting off a thief's hands. Markel adds another objection to asking the guilty to pick their poison: "We punish to communicate censure and condemnation. It's for a democracy to make those decisions. We ought not empower defendants to be deciding their punishments."

Edmond Aviv apparently wasn't given a choice. Will public humiliation change his behavior? He had been convicted of harassment before, so it's hard to fault the judge for trying something different. And even though we don't live in Hester Prynne's world anymore, I'll cautiously side with the slice of democracy that told a Cleveland.com reporter they approved the sentence. After all, it "communicated censure and condemnation." In this case, it seems, a bad guy got his just deserts. 

A few recent and lots of older posts on shaming sentences:

May 26, 2014 at 12:12 PM | Permalink

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Comments

Prof. Markel is a retributionist, a Harvard Law grad, and a left wing ideologue. His views must be presumptively suspect if one can understand any word he says, at all.

Here is the problem.

If I were being shamed as a bully, I would invite the press to record me walking back and forth. I would use the notoriety to markedly upgrade my social life, from 300 pound 50 year olds to 150 pound thirty year olds who want to go out with a celebrity. It does not matter how becomes notorious. Celebrity is the single most powerful aphrodisiac, better than great wealth, inducing great attraction and orgasms in good looking ladies.

The attention of the press would also allow me to let them judge the great nuisance of my neighbor's handicapped children for themselves, as they get hit, urinated on, and totally disrespected by the little dears, all without my saying a word.

Posted by: Supremacy Claus | May 26, 2014 12:46:03 PM

Eliot Rodger could not beat women away with a stick now, had he not killed himself.

http://www.cnn.com/2014/05/25/justice/california-shooting-revelations/index.html

As it will be with the Boston Marathon bomber.

http://www.dailymail.co.uk/news/article-2323342/Dzhokhar-Tsarnaev-The-teen-girls-crush-Boston-bomber.html

Forums of teen girls with crushes likely forming for Rodger.

Posted by: Supremacy Claus | May 26, 2014 12:55:39 PM

I'd argue that the question really revolves around what we want out of punishment. If we want to reduce crime, I think the psychological research demonstrates, on an individual level, that increasing the experience of shame has a backfire effect.

Though I am beginning to suspect we "want" things from our CJ system other than crime reduction, and may even be willing to sacrifice crime reduction on the altar of, say, retribution.

Posted by: Guy Hamilton-Smith | May 26, 2014 2:53:01 PM

your nicer than I am SC. I would have reported him to law enforcement the first couple of times. the last time I reported him I'd inform him and THEM that the next time he got in my face I would consider him a proven threat and simply remove his ass. I certainly would not put up with that type of shit 15 DAYS let alone FIFTENN YEARS without someone's ass getting plugged.

Posted by: rodsmith | May 26, 2014 3:00:53 PM

Reducing crime is not the only reason for punishment in our system.

Punishment is in place for deterrence, incapacitation, retribution and so forth.

Punishment in various ways will be shameful. Some have written, e.g., about the depersonalization of prisoners. There is shame involved here & it is surely particularly intentional. The concern here is a blatant type of shaming but not sure about line drawing.

I don't know the data but my general understanding of human nature and experience does lead me to worry about the counterproductive nature of shaming. Sometimes, such as involving those with a reputation the person wishes to uphold, shaming can have real bite. This would probably entail care -- totally stripping people of self-respect can be counterproductive. A "what do I have to lose" sentiment etc.

Shaming also is problematic because it is open to abuse. It can be very dehumanizing and cruel & this for some crimes that ultimately are somewhat petty. It also is liable to be selectively applied.

But, shame probably will factor in. If we cared so much, we would do more, e.g., to make information on criminals private.

Posted by: Joe | May 27, 2014 12:09:49 AM

I have no problem with shaming punishments (at least the ones so far that have been relatively minor and not all that abusive), but I do have some problems with the specific "in kind" punishments. The having a slumlord stay in one of his slum apartments is a good example. It's weird to say "these apartments are so bad no one should have to live in them. As punishment, you have to live in one." I think that's a little different from an "I steal mail" sign.

Posted by: Erik M | May 27, 2014 6:58:04 AM

all very nice but legally shaming as a punishment died when the courts ruled using "stocks" cruel and unusual punishment.

Or does this mean we can use them now? Would be a lot cheaper than paying for all those diff displays for each criminal.

God the American citizen get's dumber each year.

Posted by: rodsmith | Jun 2, 2014 12:15:08 PM

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