Shame is Worth a Try - Argument
Dan M. Kahan
Dan M. Kahan was born in 1963 and graduated from Middlebury College in 1986 and Harvard Law School in 1989, where he served as president of the Harvard Law Review. He clerked for Judge Harry Edwards of the U.S. Court of Appeals for the District of Columbia circuit in 1989–1990 and for Justice Thurgood Marshall of the U.S. Supreme Court in 1990–1991. After practicing law for two years in Washington, D.C., Kahan launched his teaching career, first at the University of Chicago Law School and later at Yale Law School, where since 2003 he has been the Elizabeth K. Dollard Professor of Law. His teaching and research interests include criminal law, risk perception, punishment, and evidence. Kahan, who has written widely in legal journals on current social issues including gun control, is coauthor, with Tracey Meares, of Urgent Times: Policing and Rights in Inner-City Communities (1999). From 2005 to 2006, he was deputy dean of Yale Law School.

In the following essay, first published in the Boston Globe on August 5, 2001, Kahan argues in favor of the use of shame as a punishment that is “an effective, cheap, and humane alternative to imprisonment.”

Shame Is Worth a Try

Is shame an appropriate criminal punishment? Many courts and legislators around the country think so. Steal from your employer in Wisconsin and you might be ordered to wear a sandwich board proclaiming your offense. Drive drunk in Florida or Texas and you might be required to place a conspicuous “DUI” bumper sticker on your car. Refuse to make your child-support payments in Virginia and you will find that your vehicle has been immobilized with an appropriately colored boot (pink if the abandoned child is a girl, blue if a boy).

Many experts, however, are skeptical of these new shaming punishments. Some question their effectiveness as a deterrent. Others worry that the new punishments are demeaning and cruel.

Who’s right? As is usually the case, both sides have their points. But what the shame proponents seem to be getting, and the critics ignoring, is the potential of shame as an effective, cheap, and humane alternative to imprisonment.

There’s obviously no alternative to imprisonment for murderers, rapists, and other violent criminals. But they make up less than half the American prison population.

Liberal and conservative reformers alike have long believed that the remainder can be effectively punished with less severe “alternative sanctions,” like fines and community service. These sanctions are much cheaper than jail. They also allow the offender to continue earning an income so he can compensate his victim, meet his child-support obligations, and the like.

Nevertheless, courts and legislators have resisted alternative sanctions — not so much because they won’t work, but because they fail to express appropriate moral condemnation of crime. Fines seem to say that offenders may buy the privilege of breaking the law; and we can’t very well condemn someone for purchasing what we are willing to sell.

Nor do we condemn offenders to educate the retarded, install smoke detectors in nursing homes, restore dilapidated low income housing, and the like. Indeed, saying that such community service is punishment for criminals insults both those who perform such services voluntarily and those whom the services are supposed to benefit.
There’s no confusion about the law’s intent to condemn, however, when judges resort to public shaming. As a result, judges, legislators, and the public at large generally do accept shame as a morally appropriate punishment for drunken driving, nonaggravated assaults, embezzlement, small-scale drug distribution, larceny, toxic waste dumping, perjury, and a host of other offenses that ordinarily would result in a short jail term.

The critics’ anxieties about shame, moreover, seem overstated. Clearly, shame hurts. People value their reputations for both emotional and financial reasons. In fact, a series of studies by Harold Grasmick, a sociologist at the University of Oklahoma, suggests that the prospect of public disgrace exerts greater pressure to comply with the law than does the threat of imprisonment and other formal punishments.

There’s every reason to believe, then, that shaming penalties will be an effective deterrent, at least for nonviolent crimes. Indeed, preliminary reports suggest that certain shaming punishments, including those directed at deadbeat dads, are extraordinarily effective.

At the same time, shame clearly doesn’t hurt as much as imprisonment. Individuals who go to jail end up just as disgraced as those who are shamed, and lose their liberty to boot. Those who’ve served prison time are also a lot less likely to regain the respect and trust of their law-abiding neighbors — essential ingredients of rehabilitation. Given all this, it’s hard to see shame as cruel.

Consider the case of a Florida mother sentenced to take out a newspaper ad proclaiming “I purchased marijuana with my kids in the car.”

The prospect that her neighbors would see the ad surely caused her substantial embarrassment. But the alternative was a jail sentence, which would not only have humiliated her more but could also have caused her to lose custody of her children. Not surprisingly, the woman voluntarily accepted the shaming sanction in lieu of jail time, as nearly all offenders do.

Shame, like any other type of criminal punishment, can definitely be abused. Some forms of it, like the public floggings imposed by authoritarian states abroad, are pointlessly degrading.

In addition, using shame as a supplement rather than a substitute for imprisonment only makes punishment more expensive for society and destructive for the offender. Accordingly, requiring sex offenders to register with local authorities is harder to defend than are other types of shaming punishments, which are true substitutes for jail.

These legitimate points, however, are a reason to insist that shaming be carried out appropriately, not to oppose it across the board.

In short, shame is cheap and effective and frees up scarce prison space for the more serious offenses. Why not at least give it a try?