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August 21, 2014

"The Scarlet Letter of the Law: A Place for Shaming Punishments in Arizona"

The title of this post is the title of this paper by Michael Lee Dynes and Henry Edward Whitmer recently posted on SSRN. Here is the abstract:

Trends in penological methods come and go, changing as a society’s attitude shifts, knowledge increases, and experience grows. A recent trend in modern sentencing methods has demonstrated a renewed interest in shaming punishments. Supporters of this trend point to the apparent ineffectiveness of a general system of fines, probation, and incarceration; they see a need for more specifically tailored punishments as a reason to promote shaming punishments. Opponents argue that society was wise to abandon most types of shaming punishments.

The purpose of this Article is to further the discussion regarding punishment options available to courts and to consider a wider use of shaming punishments in certain circumstances. Shaming punishments may be particularly effective if they are tailored to criminals convicted of specific crimes, especially criminals having middle to high socioeconomic class status and who may lose social standing if their criminal activities are made public. This Article begins with a brief history of shaming as punishment, followed by examples of modern shaming. Next, this Article explains and considers the criticisms of judicial sanctions designed to induce shame in an offender, and it discusses penological justifications for shaming. Finally, the Article discusses potential uses for shaming punishments in Arizona and recommends that Arizona courts expand the use of shaming punishments — as an addition to current statutorily-available punishments — for criminals of mid to high socioeconomic status.

August 21, 2014 at 09:27 AM | Permalink

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Comments

In my experience, 35 years, shaming does more harm than good. Better to take the high road.

Posted by: Tom McGee | Aug 21, 2014 1:21:25 PM

Link is broken. Correct link here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2471168

The ultimate shaming device is the Sex Offender Registry. The problem with shaming is that it creates a DIS-incentive for improving one's behavior, as the recipient of such a punishment is never going to be allowed to reintegrate him or herself into society without constant reminder of the actual shaming process. While "sitting in the corner with a dunce cap" may be fun to reminisce about, keep in mind such "dunces" never improved as a result of their experiences for the most part.

The ONLY punishing scheme that works is incarceration and rehabilitation. If rehab doesn't work the first time, then incarceration for a significantly longer period is the answer. Shaming will only inflame the masses, as well as the internal mindset of the offender.

Posted by: Eric Knight | Aug 21, 2014 1:21:39 PM

From a concerned citizen who replied to this article: "I read the paper. There is a reason why the law does not permit this. If judges are doing it, the Constitution forbids it. Here's the reason why. Our entire legal system is based under one principle, “equal justice under the law.” This is where the phrase, “the law is not a respecter of a person's" comes from. How can you claim to have equal justice under the law when you have tailor-made punishments for the middle and upper class that are designed purely for public humiliation, while others get prison time? We try criminals in a public forum known as a court under established rules that have been made into law and made known to the public to promote an orderly society where everyone knows the rules and plays by the rules. At least in theory that's how it's supposed to work. How can you claim that you have given the public notice regarding the punishment of a crime when the punishment is tailor-made for the individual? That's why we have sentencing laws. The people who set all this up back in the beginning were not idiots. They represented the greatest thinking minds of the time and shaming crimes in the United States was never something that they intended us to adopt and in fact are unconstitutional because there is nothing in the Constitution that permits a judge when sentencing an individual to deviate from the law just because he feels like it and create a sentence on his or her own.

Now I want to tell you about my probation visit today. We had a little discussion about the court statements that they fully expected me to comply with the court's order to attend sex offender treatment program (SOTP). Well, the court is a little out of touch with things, they obviously live in their own dream world because they have been notified repeatedly after numerous attempts by me at my own expense, to enter sex offender treatment program and failing to be accepted because I refuse to admit guilt. It should be noted that my habeas is in play and the minute I walk into SOTP and admit guilt that goes away. You should've seen the smile on their faces when they told me that if I wanted to attend empowerment's as I requested that I would have to attend SOTP, in other words admit guilt. In addition to that I would have to pass a specific offense polygraph and an ABLE test to measure my sexual arousal. After all this was explained to me they asked me if I intended to continue to claim innocence. To which I said, "I have to I have appeal in play." I was cautioned that my continued course could ultimately result in my inter County compact being terminated which will force me to live on the streets in Tucson. I don't think so!

Do you see why today is a sad day in America? The Revolutionary war was fought over 200 years ago and religious freedom was central to its cause. The only way I can have my religious freedom is if I admit guilt and pass a battery of tests that prove nothing. So much contempt for a person who took a vow of nonviolence at the age of 17 and never broken it, a person who has been celibate for 19 years and only sexually active for three. I cannot liberate them from their paranoia. That's their responsibility. The problem is that they don't know this and consequently do not know that they are paranoid. I'm not here to educate them. I have problems of my own and I want to be left alone, but I don't see that happening anytime soon."

Posted by: Camille Tilley | Aug 21, 2014 6:12:34 PM

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