In America, our justice system is designed to be slow, methodical, a little boring. This is especially true in the sentencing phase. Even-tempered bureaucrats in bland black uniforms consult elaborately detailed guidelines to ensure that punishment is applied in consistent fashion across similar cases.
Occasionally, though, our black-clad functionaries break out of the mold. In November 2012, for example, Cleveland Municipal Judge Pinkey Carr compelled a 32-year-old woman to stand on a street corner for two hours, holding a hastily scribbled sign that said “Only an idiot would drive on the sidewalk to avoid a schoolbus.”
The case received tremendous media attention, and apparently Judge Carr was pleased enough with the results to make public shaming a standard part of her repertoire. In March 2013, she sentenced a 58-year-old man who had called 911 and threatened to kill police officers to 90 days in jail, plus a hefty chaser of humiliation. This offender, Carr ruled, would be required to stand outside Cleveland’s Second District Police Department building for one week, three hours each day, holding a sign that reads “I was being an idiot and it will never happen again.”
Carr’s sentencing sentiments are not an anomaly. These days, public shaming is our favorite brand of small-batch artisanal justice. Evoking the authentic no-nonsense morality of our Puritan forebears, while also seeming quirky and novel, creative punishment is what today’s most discerning consumers of hand-crafted, state-sanctioned vengeance demand.
Last year, the National Institute of Justice released a report showing that in 59 percent of the 826 cities included in its study, police departments, local media outlets, and other parties publicize the identities of prostitution clients, often before they’ve been convicted of a crime. In Arlington, Texas, the preferred delivery system for disgrace is a highway billboard. In Fresno, California, the police department maintains a webpage it calls “Operation Reveal,” where it posts photos of individuals who’ve been arrested on prostitution-related charges.
In Ohio, if you’re convicted of drunk driving, you may be required to place a bright yellow license plate on your car. In January 2013, Montana legislators introduced a bill that would mandate orange plates for people with a DUI conviction. “Those in favor of the bill say people with DUI’s need to be put on display so they can be embarrassed by their crime,” a local ABC affiliate, KFBB, reported on its newscast.
The public, too, loves public shaming. Landlords take to Craigslist to complain about tenants who haven’t paid rent. Outraged deliverymen post photographs of miserly tippers on their Tumblr sites. Jilted maître d’s tweet the names of customers who bailed on their reservations. Frustrated pug owners humiliate serial carpet-poopers at dogshaming.com.
In 1979, when New York City Mayor Ed Koch ordered radio station WNYC, then owned by the city, to broadcast the names of nine men convicted of soliciting prostitutes, an unsigned New York Times editorial described his actions as a “mighty misuse of government power.” In another article, Times columnist William Safire dubbed Koch the “Mayatollah,” and chastised him for “reaching back three centuries” to dredge up this archaic tactic.
But what struck the chattering classes of 1979 as astonishingly regressive seems strikingly commonplace in 2013. As connoisseurs of Malibu mug shots can attest, ceremonial humiliation via electronic media now stands as a widely practiced antidote to celebrity-style above-it-all transgression. Public shaming also takes the most coveted value of our age—publicity—and turns it on its head. Any form of publicity so unpleasant that it qualifies as punishment must be severe indeed, worse even than jail time, house arrest, fines, or community service.
Koch’s regressive “John Hour” was only slightly ahead of its time. Though it lasted just one episode, and that episode undersold its title by about 58 minutes, the ensuing years produced new green shoots of humiliation across the country.
In 1983, a judge in Fort Bend County, Texas, had 250 red, white, and blue bumper stickers printed up to identify people on probation for driving while intoxicated. By 1985, he’d gone through approximately a third of his supply and judges in Oklahoma and Florida had adopted the practice as well.
In 1984, a judge in Tennessee offered a car thief a chance to avoid incarceration by publicizing his crime for 30 days via a 5'x4' sign posted in his front yard. In 1986, prosecutors in Lincoln County, Oregon, offered plea bargains to nonviolent offenders if they paid for an ad in a local newspaper featuring their mug shot and an apology. “It’s somewhat reminiscent, I suppose, of the public stockade, where you were publicly put on display for your indiscretion,” a Lincoln County district attorney told a UPI reporter. The intent, the reporter elaborated, was to “bring embarrassment or fear to criminals.”
Lincoln County started its public shaming program in part because of a shortage of jail space—it needed a cheaper way to deal with criminals than incarcerating them. In addition to being economical, public shaming is, in many practical ways, a less severe and disruptive form of punishment than being locked up for a given period of time, and thus potentially a good alternative for less serious crimes, especially for first offenders.
But public shaming these days is obviously different than it was in the 1600s, or even the trailblazing 1980s. In an essay that appeared in the Spring 1996 issue of the University of Chicago Law Review, the legal scholar Dan Kahan explained how public shaming in early America began to fall out of favor in part because America was becoming more populous and impersonal. “In a society of strangers,” Kahan wrote, “the bare deprivation of status no longer resonated as a symbol of the community’s moral disapproval.”
In a post-1996 society of highly connected social networks and online forums, community moral disapproval is one of the world’s most abundant resources. But it’s also unpredictable.