Punishing convicted criminal defendants by subjecting them to public ridicule is a practice that originated in America in colonial times. Shaming defendants became less popular in the early 19th century, but its use has increased in the years since. Using shame to punish has its critics and its proponents, though whether it “works” is not at all clear. This article explains the origin of shaming sentences, the typical types used, and modern approaches to the practice.
Shaming was widely used in colonial America. Typical methods included stocks and pillories (wood structures that the defendant was attached to), mutilation, branding, and letter wearing (like the scarlet letter “A” placed on Hester Prynne’s forehead). The defendant was shamed in a public space, typically the town square, and left to suffer the taunts (and sometimes physical abuse) of the townspeople. Because the towns were relatively close-knit and small, and people generally did not move from one to another, this treatment had a real impact, for it meant that the defendant was being shamed before people whom he knew and would continue to live among.
As the nation’s population increased at the start of the twentieth century, cities grew in size and people began to move from place to place more frequently. The result for the person placed in the stocks was that those who looked at him might be newcomers who didn’t know him, or they might be about to leave, and wouldn’t be around to remember his shame. Because people are less bothered when they’re embarrassed by strangers than by their neighbors, the usefulness of the practice was lessened.
Other factors contributed to the decline of shaming as a punishment. Some Americans considered the practice comparable to slavery and an affront to human dignity; they favored a punishment that would teach the wrongdoer to reform. At the same time, imprisonment became the preferred punishment.
It’s no surprise to anyone that the costs of incarcerating convicted defendants are high and getting higher. Rising costs have put pressure on legislatures and judges to come up with alternate forms of cheaper punishment, including out-of-custody supervision, with community service requirements, fines, job training, and education.
Another alternative to incarceration is shaming, which began to reemerge in the 1970s. Modern humiliations generally do not involve the physical abuse seen in earlier times; instead of whipping, defendants are placed in a public place and told to do things (or wear signs) that publicize the crime and embarrass the offender. Or, the defendant is ordered to place a sign on his home, proclaiming his misdeeds. Shaming sentences are applied mostly to crimes that have moral overtones, sexual crimes, commercial offenses, and minor crimes. Examples of modern shaming include:
It’s important to distinguish the examples above, of “pure shaming,” from punishments that have public safety as their goal, but incidentally result in some embarrassment to the perpetrator, as well. These punishments may, indeed, be embarrassing, but their primary purpose is to warn the public. For example, sex offender lists are available to certain members of the public (though in practice widely seen by all). The purpose of disseminating this information is to warn those who may be a “person at risk” about the people on the list. Being identified as an offender is certainly humiliating, but one’s name is not placed on the list in order to shame the offender.
Before we can examine whether shaming is effective, we have to decide on what, exactly, we hope to do when we punish offenders. Does society simply want to impose pain and hardship, hoping to deter future law-breaking by this offender and others who see his plight? Or, are we hoping to rehabilitate the offender?
A defendant who receives a “shaming sentence” can appeal the sentence through the normal appellate process. But few such cases have made their way through the appellate courts and into published opinions, which is the only way we can learn of appellate restraints on trial judges’ creativity. Why is that so? Although shaming sentences are not uncommon, compared to traditional sentences they are in the minority. In addition, shaming is appropriate only in misdemeanor cases, and relatively minor ones at that. These cases are not likely to be appealed, if for no other reason than the defendant would rather swallow his pride and get the whole thing over with as soon as possible (and not risk losing the appellate case, which would only expose him to further embarrassment).
Still, a few appellate opinions offer some guidance, though they are quite specific to the states in which the cases arose. In New York, for example, a sentencing statute for a DUI offense directed trial judges to choose probationary terms that were consistent with the defendant’s rehabilitation. The judge, faced with a repeat offender, ordered him to affix a fluorescent sign to his license plates, reading “Convicted DWI.” The appellate court ruled that this order was unreasonable, and did not contribute to the goal of any sentence, which is rehabilitation. As you can see, this result was possible only because the statute directly identified education, not punishment for its own sake, as the goal of a criminal sentence. (People v. Letterlough, 655 N.E.2d 146, 151 (N.Y. 1995); distinguished on other grounds, People v. Hakes,118 N.E.3d 883 (2018).)
A California case illustrates one court’s discomfort with the practice of ordering defendants to place signs on their property. In that case, the defendant stole beer and was ordered to wear a T-shirt whenever he was outside his home, which said, “My record plus two six-packs equals four years” on the front, and “I am on felony probation” on the back. At the time the case was decided, California had explicitly embraced the “punish to deter” theory of sentencing (having given up on rehabilitation in the late 1970s). Still, the court threw out the order, reasoning that it had an almost insignificant value as a deterrent. (People v. Hackler, 16 Cal. Rptr. 2d 681 (Ct. App. 1993).)
Using shame as a sentence in the federal system is less common, in part because of the mandatory sentencing guidelines that have, until recently, tightly controlled the trial judge’s ability to craft individualized sentences. The break-through case was decided in 2004 by the Ninth Circuit, which held that ordering a convicted mail thief to stand in front of a post office with a sign reading, “I stole mail. This is my punishment” was an acceptable sentence. The court rejected an Eighth Amendment argument that the sentence was cruel and unusual, for it merely humiliated the defendant, was reasonably related to the objective of rehabilitation, and did not place the defendant in any danger. Interestingly, the dissent in that case noted the lack of shaming cases that have come before the federal appellate courts, possibly because “they simply have no place in the majesty of an Article III courtroom.” (U.S. v. Gementera, 379 F.3d 596, 598 (9th Cir. 2004), cert. denied, 126 S. Ct. 735 (2005).)
