Shaming Undermines Justice

Here is today’s column in USA Today on the continuing trend toward shaming or creative punishments.

Shame is back in the United States with a vengeance.

Across the country, judges and prosecutors and jailers are freelancing by imposing their own brands of retributive justice: forcing people to wear humiliating clothing, parade in public and even sleep in doghouses. The punishments are wildly popular with many in the public who want to see criminals humiliated and seem to relish the entertainment of improvised justice.

Two weeks ago, citizens of Bedford, Pa., were able to gawk at Evelyn Border, 55, and her daughter, Tina Griekspoor, 35. The two had been caught stealing from a child and were told by the local prosecutor that unless they performed a publicly humiliating act, they would be hit with heavy charges. They agreed to appear in front of the courthouse holding signs reading, “I stole from a 9-year-old on her birthday! Don’t steal or this could happen to you!” Such scenes are being repeated across the country as citizens are told to choose between degrading public acts or long jail sentences.

Shaming punishments are a return to primitive practices common before the American Revolution, when people were forced into public pillories, marked with scarlet letters or forced into forms of public humiliation, including degrading signs. These shaming punishments declined after the Founding Fathers sought to modernize the criminal justice system and to require consistent punishments.

Gum, manure and doghouses

Elected state judges have found that many citizens relish the humiliation of others. Georgia Judge Rusty Carlisle does not deny that he is trying to degrade people who come before him. In one case, a defendant seemed “kind of cocky” in a minor littering case, so Carlisle ordered him to scrape the gum off the bottoms of the court benches with a butter knife while people watched. The “King of Shame” was Texas Judge Ted Poe, who insisted that “people have too good a self-esteem,” so he made them do things such as shovel manure to abase them. What Poe called “Poetic justice” has little to do with actual justice. It is a form of entertainment that sacrifices our most fundamental principles to satisfy our most base impulses. Judges give the public displays of retribution by using citizens as virtual props in their personal theater of the absurd.

In 2003, Texas Judge Buddie Hahn gave an abusive father a choice between spending 30 days in jail or 30 nights sleeping in a doghouse (He chose the doghouse to be able to keep his job). Likewise, in Ohio, municipal Judge Michael Cicconetti sentenced two teens found guilty of breaking into a church on Christmas Eve 2002 to march through town with a donkey and a sign reading, “Sorry for the Jackass Offense.” Cicconetti later ordered a woman to be taken to a remote location to sleep outside for abandoning kittens in parks.

Studies have actually shown limited value in humiliation as a punishment in terms of actual deterrence in crime. Its principle value is found in the political rather than the criminal system. Indeed, Poe used the popularity of his creative punishments to secure a seat in Congress in 2004.

Now, prosecutors and jailers are trying to cut in on the shaming action. In the Bedford case, the punishment was not ordered by a judge but by a prosecutor, Bedford District Attorney Bill Higgins, who promised to seek probation if they demeaned themselves.

“Giving the people what they want” can sometimes get them to forget what they don’t want — like the bread and circuses of Roman emperors. For example, Higgins was dogged by allegations of adultery and having sex in the very courthouse where he paraded Border and her daughter. Though he faced a criminal complaint and admitted to adultery, no one is calling for Higgins to wear a placard as an adulterer. Instead, he is being heralded for parading the two petty thieves.

Likewise, Arizona Sheriff Joe Arpaio has long faced complaints over his heavy-handed tactics against both citizens and illegal immigrants. However, most people know him only as the guy who forced male inmates to wear pink underwear to humiliate them.

Inventing justice

Some judges have faced charges over their meting out personal justice but have received little punishment. Gustavo “Gus” Garza, a justice of the peace in Texas, was given only an admonishment last year when he forced parents to spank their children in front of him in court to avoid heavy fines. In another spanking case, former Alabama judge Herman Thomas actually used shaming punishments as a criminal defense. Thomas was recently acquitted of sodomy and assault after he allegedly took inmates from their cells for spankings and sex in his chambers. Despite testimony alleging spanking and sodomy, Thomas’ lawyer insisted that the judge was merely “mentoring them” and trying to turn them into “productive citizens” in dealing with them in chambers.

All criminal sentences produce shame for most citizens. But there is a difference between shame from a punishment and shame as a punishment. These judges are inventing their own forms of retributive justice like little Caesars toying with citizens. It is a threat to the basic principles of our legal system. It is an abuse of not just the criminal code but of the criminals themselves. It is not just wrong. It is, in a word, shameful.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s board of contributors.

November 17, 2009

22 thoughts on “Shaming Undermines Justice

  1. Hmm. When put in a slippery slope context, perhaps I was too lenient in my assessment of “creative punishment”, but as I said, this is a mixed issue with me. It is clear that what we do with criminals as a society does not work. Some get jail for 20 years for pot but others get Presidential retirement benefits for being a mass murderer. I submit this isn’t a causal problem as much as it is a symptom that actors within the system see inherent injustice and are trying (some better than others) to correct them as they can. That “creative” can become “abusive” ala Arpaio is a matter of proper hiring practices, but for this problem to go away the fundamental issue of our two-tiered “you get the justice you can pay for” system created by the lobbyists and their graft swilling politician co-conspirators over the last 60 years must be addressed. You would not see this kind of thing as often if the system worked. My kid goes to jail for possession while that bloodsucking reptile that walks like a man Cheney roams about free to do his Penguin impersonation?

    When Hell freezes solid.

    Not all reform can be top down. Again, I say “symptom”, not “cause”.

  2. What Buddha said.

    Plus, if prisons are overcrowded anyway, aren’t “alternative” forms of punishment a pragmatic solution?

    What I would be interested in is seeing statistics showing the effectiveness of these “shame” punishments on recidivism vs. jail time/fines.

    I, personally, would be mortified if I was just CONVICTED of a crime, regardless of the punishment. (Not that that’s ever going to happen; I’m just sayin’). But certain segments of our society treat a prison sentence (or even just a conviction) as a Badge of Honor. No type of punishment– traditional or alternative– would likely affect them.

  3. There is a reason that “The Scarlet Letter” is an indictment of the system that imposed it rather than upon its bearer, Hester Prynne:

    “And now, almost imperceptible as were the latter steps of his progress, he had come opposite the well-remembered and weather-darkened scaffold, where, long since, with all that dreary lapse of time between, Hester Prynne had encountered the world’s ignominious stare. There stood Hester, holding little Pearl by the hand! And there was the scarlet letter on her breast! The minister here made a pause; although the music still played the stately and rejoicing march to which the procession moved. It summoned him onward — inward to the festival! — but here he made a pause.

    “The crowd, meanwhile, looked on with awe and wonder. This earthly faintness, was, in their view, only another phase of the minister’s celestial strength; nor would it have seemed a miracle too high to be wrought for one so holy, had he ascended before their eyes, waxing dimmer and brighter, and fading at last into the light of heaven!

    He turned towards the scaffold, and stretched forth his arms.

    “Hester,” said he, “come hither! Come, my little Pearl!”

    It was a ghastly look with which he regarded them; but there was something at once tender and strangely triumphant in it. The child, with the bird-like motion, which was one of her characteristics, flew to him, and clasped her arms about his knees. Hester Prynne — slowly, as if impelled by inevitable fate, and against her strongest will — likewise drew near, but paused before she reached him. At this instant old Roger Chillingworth thrust himself through the crowd — or, perhaps, so dark, disturbed, and evil was his look, he rose up out of some nether region — to snatch back his victim from what he sought to do! Be that as it might, the old man rushed forward, and caught the minister by the arm.

    “Madman, hold! what is your purpose?” whispered he. “Wave back that woman! Cast off this child! All shall be well! Do not blacken your fame, and perish in dishonour! I can yet save you! Would you bring infamy on your sacred profession?”

    “Ha, tempter! Methinks thou art too late!” answered the minister, encountering his eye, fearfully, but firmly. “Thy power is not what it was! With God’s help, I shall escape thee now!”

    — Nathaniel Hawthorne

    That’s great writing, and great warning.

  4. it’s good to know there are smart people in the world like jonathan turley so the rest of us can on occasion be set straight away. i’m dead serious. there is disproportionate number of peeps in the world.

  5. “For example, Higgins was dogged by allegations of adultery and having sex in the very courthouse where he paraded Border and her daughter. Though he faced a criminal complaint and admitted to adultery, no one is calling for Higgins to wear a placard as an adulterer. Instead, he is being heralded for parading the two petty thieves.”

    Damn and what would the appropriate punishment be? Wear the Scarlet “A” while working in the courtroom? Oh Hester, you certainly do jest do you not? An “A” on someone in the courtroom could have multiple uses..

    Do you have the link to this one? I have tried to google it without success.

  6. “The punishments are wildly popular with many in the public who want to see criminals humiliated and seem to relish the entertainment of improvised justice.”

    ************

    Ah, there’s nothing like schadenfreude to bring a smile to one’s face…or to warm the cockles of one’s heart.

  7. Let’s cut through the obfuscations on this and get right down to what’s going on. There has always been a large sadistic strain among human beings, who enjoy nothing more that seeing one of their own humiliated publicly. There are also those who get a sexual thrill from being the agents of that humiliation, in these instances judges and prosecutors. I’ve never enjoyed the humiliation of another human being, even those who meant me harm. I can’t condone these bizarre punishment methods. However,
    in truth the entire system of human punishment speaks more to sadism, than to redress of grievances.

  8. One is reminded of the legend of Lady Godiva. She wanted her husband to remove a tax on the townspeople. Her abusive husband
    agreed to do so but only if she shamed herself by riding naked through the town. All the townspeople refused to look except for one who “Peep’d”(Alfred, Lord Tennyson’s version) and was struck blind for his voyeurism. It is that sort of peeping tom member of society to whom the judges and prosecutors appeal with this brand of ” shame as punishment”.

    I am particularly drawn to this quote in the article: “All criminal sentences produce shame for most citizens. But there is a difference between shame from a punishment and shame as a punishment. These judges are inventing their own forms of retributive justice like little Caesars toying with citizens. It is a threat to the basic principles of our legal system. It is an abuse of not just the criminal code but of the criminals themselves. It is not just wrong. It is, in a word, shameful.”

  9. Shameful judge and police behavior probably does more damage than this does.

    What I don’t like about it is that it is quite retro and as Prof. Turley indicates, does not help the efforts of justice in the long run.

  10. Well in this case, those two women ought to be ashamed of themselves. People are no longer ashamed of a little jail time.
    I see nothing wrong with the punishment in this particular case.

    Besides, it’s not like she had the money to pay any fines anyways, since she was stealing a gift card from a kid.

  11. Shaming would depend for its effectiveness on the target having the capacity for shame. I am pretty sure members of the high elite, Wall street bankers etc do not.

  12. Wouldn’t this be considered a usurpation of legislative power in order to create an unconstitutional ex post facto law?

  13. But who complains when the choice is public humiliation vs. jail time? I doubt many of those whose punishment is public humiliation ever appeal.

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