Public shaming is an integral part of our criminal justice system, although its prominence rises and falls periodically. Many cities have posted the names of drug offenders, deadbeat dads, or public urinators on billboards. Some have required people convicted of drunk driving to affix fluorescent license plates to their cars once they start driving again. Kansas City experimented with broadcasting on a government-owned television channel the names and addresses of men arrested for solicitation. The “perp walk” is a pre-conviction public shaming ritual. Individual judges have ordered offenders to wear signs and shirts, or go door-to-door apologizing to victims of their crimes. Legal challenges to such shaming sanctions typically fail.
I was just reading something about this last night, in David Berreby’s excellent book Us and Them: Understanding Your Tribal Mind. Seriously, this is one of the most interesting books I’ve read this year:
With all the evidence that stigma is powerful and dangerous and the historical record showing how it has been put to such bad uses in the past, the law should be careful about invoking human-kind emotions. Yet there are legal scholars, lawyers and judges who think stigma is a fine tool for the legal system to use. They are all for “shame punishments” like chain gangs, prison cams, and license plates that tell the driver’s crime to the world.
A better argument is that stigma — as a historical phenomenon and as a psychological and medical experience — is far too dangerous to invoke. Stigma is, as Martha Nussbaum of the University of Chicago elegantly points out, inherently counter to the spirit of law because it acts on irrational, unconscious parts of the mind. An understanding of how human-kind psychology works shows why shame punishments are a terrible idea. These are devices that the law should not use.
On a related note, the perils of instapunditry. Maybe it’s a cognitive bias on my part, but I haven’t noticed anywhere near the same number of bloggers who originally hurried to make some sort of creepy-Elmo joke correcting their casual condemnation of the poor guy, by name, as a pedophile. You know, as before, perhaps it wouldn’t fucking kill us to wait just a goddamned minute before using the power of the Internet to facilitate mass shaming and mob justice.