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Shaming Punishments: Sitcom Justice?

Sentencing Law and Policy has a thoughtful response to Jonathan Turley's op-ed in the Washington Post on shaming punishments as an alternative to incarceration. Professor Berman says:

....given the questionable efficacy of our traditional approaches to punishment and our over-reliance on incarceration (background here), I am quite open to greater use of alternative punishments, including mild shaming sanctions, especially when they are imposed in lieu of an extended imprisonment term.

Turley, in constrast, opined:

There's no evidence that creative sentences work better at deterring crime than other punishments. Yet public punishments can be harshest on the most commonly targeted and vulnerable group -- young people.

The recent penchant for customized punishments also undermines efforts to make criminal sentencing more uniform. Creative punishments often reflect the cultural character of a state. While an abusive father was given the choice of sleeping in a doghouse in Texas, domestic abusers were forced to attend meditation classes with herbal teas and scented candles in Santa Fe, N.M.

Turley concludes:

If states and Congress do not act, we may find ourselves with hundreds of Judge Browns imposing sitcom justice with real citizens as their walk-on characters. In the meantime, as shaming devices become commonplace and therefore less shameful, and as there are more people walking around wearing special signs, jurists will need to dream up new, more demeaning punishments to make an impression on defendants -- leaving both citizens and justice at risk.

The Supreme Court could help reverse this shameful trend with the Gementera case. Of course, even if it does, Judge Walker is unlikely to be seen standing outside the San Francisco courthouse wearing a sandwich board proclaiming "I Was Reversed by the Supreme Court" or "I Imposed Cruel and Unusual Punishment." In some ways, that's a real shame.

I don't like shaming punishments. The real shame of America is its prisons. TChris wrote about a particularly ridicuclous one here. I don't think this should be an either or all call - incarceration or shame. There are other alternative sentencing solutions out there that should be tried, and if they are lacking, then judges should spend their creative energy coming up with better ones that don't demean and further alienate the offender.

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    Re: Shaming Punishments: Sitcom Justice? (none / 0) (#1)
    by Che's Lounge on Sat Dec 17, 2005 at 01:04:07 PM EST
    Let's try it out first on the white collar criminals.

    Re: Shaming Punishments: Sitcom Justice? (none / 0) (#2)
    by Johnny on Sat Dec 17, 2005 at 01:04:07 PM EST
    I agree Che... The sight of a millionaire crook parading around a working class neighborhood with a sign that says: "I steal from you" would be excellent.

    Re: Shaming Punishments: Sitcom Justice? (none / 0) (#3)
    by wg on Sat Dec 17, 2005 at 01:04:07 PM EST
    Excellent op-ed both in tone and substance. Long overdue especially in a publication like WaPo. The country needs more voices that open, that brave, that American especially from mainstream academia. Time to clean things up, time to regain the sense of this being an open, honest democracy. The consequences of staying silent, of easy TV style unreflective conformity are too unpleasant in the long term for the country as whole as plainly evident these days.

    Re: Shaming Punishments: Sitcom Justice? (none / 0) (#4)
    by wg on Sat Dec 17, 2005 at 01:04:08 PM EST
    On shaming, let me share this image. It's been staying with me for more than two decades. 1978. I am a freshly arrived student from Europe. Went downtown one weekend like I would back on the old continent when visiting new places. Want to see them at their best after all. Wander the squalor and decrepitude of it for a while when all of the sudden I see this huge horse with an equally massive cop sitting on top of it. There is a heavy chain and a large black man attached to it. Picking trash while being dragged through the downtown apparently on orders of some southern judge. I still remember the expression on that man's face. This was the first time in my life I didn't believe my eyes. I honesty thought barbarity of this type was unthinkable in the 20th century.

    Re: Shaming Punishments: Sitcom Justice? (none / 0) (#5)
    by wg on Sat Dec 17, 2005 at 01:04:08 PM EST
    On shaming, let me share this image. It's been staying with me for more than two decades. 1978. I am a freshly arrived student from Europe. Went downtown one weekend like I would back on the old continent when visiting new places. Want to see them at their best after all. Wander the squalor and decrepitude of it for a while when all of the sudden I see this huge horse with an equally massive cop sitting on top of it. There is a heavy chain and a large black man attached to it. Picking trash while being dragged through the downtown apparently on orders of some southern judge. I still remember the expression on that man's face. This was the first time in my life I didn't believe my eyes. I honesty thought barbarity of this type was unthinkable in the 20th century.

    Re: Shaming Punishments: Sitcom Justice? (none / 0) (#6)
    by cpinva on Sat Dec 17, 2005 at 01:04:08 PM EST
    there was a time when being sent to prison was cause for shame in and of itself. the entire family was embarrased, and made every effort to keep it out of the public view. that appears to no longer be the case. in many neighborhoods, a prison sentence is now a badge of honor, "you have become a mensch", and almost every family has a member either doing time, or having done time. therein lies part of the problem. when being a convicted felon no longer brings the approbrium of the society you come from, jails become no more than warehouses, a human FIFO inventory waiting to be moved to the front of the rack. no rehabilitation, no education, just moving them in and out. that's the true shame of all this.

    Re: Shaming Punishments: Sitcom Justice? (none / 0) (#7)
    by wg on Sat Dec 17, 2005 at 01:04:10 PM EST
    back to the subject, my two cents. Once you give your judiciary the power to impose any penalty statutory or not, you need to brace yourself for abuse. There is no such a thing as perfect judiciary, in fact in the system where they enjoy the status and powers of medieval overlords such abuse is virtually guaranteed, as any lawyer practicing in this country especially in the South can attest to. On a more fundamental level the power of any government to penalize its citizens is inherently dangerous. For that reasons most modern legal systems strictly define what penalties are available and their applicability. It is usually the elected legislature that has a sole power of defining what the government can do to a citizen*. That drastically reduces the potential abuse by the government, judiciary included. Little to no accountability, a few to no limitations especially when meting out extra statutory penalties is inherently inconsistent with basic precepts of democratic societies. But for some strange reason this is the reality in this country. Appealing to their sense of fairness, civility or appropriateness to reduce the widespread abuse as suggested by TL and Turley is fine. But it will take reducing their powers back to the level consistent with fundamental democratic principles to eradicate it. --- *this is not to say that legislatures are always mindful of protecting rights of citizenry. Plenty evidence to the contrary, And that is the reason why judiciary should always have the power to proclaim on constitutionality of statues.