By Kat Mail
In a surprising trend, judges in the late 1990s increasingly issued “shame sanctions,” punishments which cause a person to feel lessor in relation to other members of society.[1] Unbeknownst to many, judges continue to issue shame sanctions today.[2] The typical shame sanction involves ordering a criminal to stand in public holding a large sign with an embarrassing message on it. This was precisely the punishment doled out to Joshua Hill, convicted in 2017 of assaulting a female and domestic criminal trespassing. A judge ordered Mr. Hill to publicly hold a sign that said “this is the face of domestic abuse.”[3] Despite the small movement favoring shame punishments, the classical justifications for issuing them are weak and lack empirical backing. Until more is known about the effects of shame punishments, judges should be wary about issuing them to perpetrators of domestic violence given the negative impact they could have on survivors.
There are three main reasons touted by judges and scholars in favor of issuing shaming punishments, none of which hold up to scrutiny: deterrence, incapacitation, and retribution. First, some insist that shame is a particularly effective deterrent.[4] There is no empirical data, however, to support this claim;[5] in fact, scholarship shows that shame can actually increase recidivism.[6] The second classical justification, incapacitation, theorizes that public shaming makes it more difficult for the criminal, now known to society, to commit future criminal acts.[7] Like deterrence, though, there is no empirical backing to show that shaming punishments will effectively incapacitate someone. Finally, some consider shaming to be “beautifully retributive” given the shame often felt by the victims of the crimes.[8] Whether shaming punishments are truly retributive, however, is debated at length. Even if they are retributive, retribution itself has been criticized as a “shallow” aim of criminal law.[9]
Not only are the justifications for shame punishments weak, such sanctions may be detrimental in the context of domestic abuse. Although the dangers of shame punishments are understudied, three main consequences stand out: the unjustified temptation to issue them, the possibility that they will increase recidivism, and concern that the survivor’s identity will be exposed. First, because survivors of domestic abuse are likely to feel shame,[10] judges may be particularly tempted by the beauty of retribution to issue shame sanctions in these cases. Given that they need not take survivor's preferences into account, judges may succumb to this temptation even when other punishments would serve the survivor better.[11] Second, there is the unproven but dangerous possibility that feelings of shame can cause abusers to recidivate.[12] Finally, because shaming requires a perpetrator’s identity to be publicized to his or her local community,[13] it may in turn expose the survivor’s identity. For example, community members who see a man holding a sign about domestic abuse may conclude that his wife is the survivor. The dangers of exposure are unstudied, but predictable. In the hypothetical about the wife whose identity is exposed, she may feel "shame for the failure of her marriage."[14]
One can argue the potential dangers of exposure are lessened by the ability of judges to exercise discretion when choosing when and how to issue shame punishments. This argument suffers, though, because of the lack of data cutting both for or against shame punishments; judges simply do not have enough guidance to make these judgement calls. Until more scholarship looks into the benefits and detriments of shame punishments, judges should err on the side of caution and not issue them to perpetrators of domestic violence.
[1] See Toni M. Massaro, Shame, Culture, and American Criminal Law, 89 Mich. L. Rev. 1880, 1901, n. 99 (1991), https://www.westlaw.com/Document/Iba86a5d15af711dbbd2dfa5ce1d08a25/View/ FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=cblt1.0 (distinguishing shame from guilt, a related but distinct feeling caused by empathy for a crime’s survivors rather than the threat of social ostracization).
[2] See Jan Hoffman, Crime and Punishment: Shame Gains Popularity, N.Y. Times (Jan. 16, 1997), https://www.nytimes.com/1997/01/16/us/crime-and-punishment-shame-gains-popularity.html.
[3] Morgan Hightower, Man Ordered to Carry Sign, 12 News (Mar. 29, 2017), https://www.12news. com/article/news/man-ordered-to-carry-sign-this-is-the-face-of-domestic-abuse/426499364.
[4] Deterrence is one of four classical justifications included by Massaro, supra note 1, at 1895. The other three are rehabilitation, retribution, and incapacitation. This blog post does not include rehabilitation as one of the main justifications given lack of support in other literature.
[5] See Masarro, supra note 1, at 1896 (“deterrence effects are virtually impossible to gauge accurately”); see also Christie Thomson, Public Shamings, The Marshall Project (Mar. 31, 2015), https://www.themarshallproject.org/2015/03/31/public-shamings.
[6] June P. Tangney, After Committing a Crime, Guilt and Shame Predict Re-Offense, Association for Psychological Science (Feb. 11, 2014), https://www.psychologicalscience.org/news/releases/after-committing-a-crime-guilt-and-shame-predict-re-offense.html (summarizing research about guilt, shame, and recidivism published in the institution’s research journal).
[7] Massaro, supra note 1, at 1899.
[8] See, e.g., Dan Markel, Are Shaming Punishments Beautifully Retributive?, 54 Vand. L. Rev. 2157, 2182 (2001), https://1.next.westlaw.com/Document/I187dffc14b2711dba16d88fb847e95e5/ View/FullText.html?originationContext=typeAhead&transitionType=Default&contextData=(sc.Default)&firstPage=true&bhcp=1&CobaltRefresh=33678 (introducing Professor James Whitman’s famous characterization of shaming punishments as “beautifully retributive”); see also Massaro, supra note 1 at 1891.
[9] E.g., Massaro, supra note 1, at 1893 (“of course, pure retributivism, and thus any retributivist-based attempt to justify [shaming], rests on fairly shallow reasoning”).
[10] See Marjan Zarif, Feeling Shame: Insights on Intimate Partner Violence, Journal of Christian Nursing, Jan./Mar. 2011, at 40, https://www.nursingcenter.com/cearticle?an=00005217-201103000-00015&Journal_ID=642167&Issue_ID=1101582 (finding that among women who had been abused “[t]heir view of marriage was tainted, and they felt fear and shame for the failure of the marriage”); see also Deborah King, The Secret Shame of Domestic Violence, Psychology Today (Oct. 23, 2014) (explaining the biggest reasons a survivor may not leave an abuser earlier is fear and shame), https:// www.psychologytoday.com/us/blog/mining-the-headlines/201410/the-secret-shame-domestic-violence.
[11] This concern is amplified by the observation that “it is uncertain – even improbable – that the suffering of another will serve as the balm to the perturbed mind.” Markel, supra note 8, at 2190, n. 169
[12] Tangney, supra note 6.
[13] See Markel, supra note 8, at 2172 (“What makes something a shaming punishment is that the penalty exposes the offender to public view and heaps ignominy upon him in a way that other alternative sanctions. . . do not.”) (internal citation omitted).
[14] See Zarif, supra note 10.
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