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In early incarnations, public shaming was a relatively fixed form of punishment. It could be long (you’re literally branded with a letter signifying your adulterous transgression), or it could be short (you have to spend 48 hours in the town-square stockade), but either way it was fixed. Punishments were assigned, executed, and then they were over.
Today, public shaming exercises haphazardly mix the real world with virtual reality. Judge Pinkey Carr sentences you to three hours of public sign-holding, but it’s impossible to predict how many photos and videos the news media and random passersby may produce. Nor can you predict how much notice this imagery will attract. Maybe it will hit the Web but die with little fanfare. Maybe it will become a viral sensation.
Given that the whole point of public humiliation is to turn attention into punishment, an audience of one million is a more severe punishment than an audience of one thousand. What this means, effectively, is that when a judge orders a person to stand with a sign, or even when a police station publishes the mug shot of a prostitution client, they don’t really know what degree of punishment they’re sanctioning. The reason that one photograph goes viral and another does not often has nothing to do with the crime being punished, but rather on what the person being punished looks like, or what kind of news day it is, or which particularly influential blogger or tweeter decides to note the case.
Judges have the power to create their own unique sentences. And courts have ruled that sentences involving public shaming are constitutional as long as they aspire to some other goal, such as deterrence or retribution.
But equal application of the law is a crucial element of our justice system. It’s one of the reasons we have sentencing guidelines. And quirky punishments designed to go viral don’t just fail to meet this standard of the law; they actively subvert it. Their primary goal is to court publicity, and that publicity can’t be accurately anticipated or controlled.
Public shaming may make for good YouTube content. And perhaps it can help end the scourge of restaurant reservation non-compliance. (No studies have been conducted yet measuring its efficacy in this regard.) In the end, though, it’s a tool best left to furious maître d’s and frustrated pet-owners. The allegedly impartial men and women who oversee our courtroom aren’t tasked with meting out novelty and entertainment. They’re tasked with meting out justice, and justice works best when it’s delivered in uniform, predictable fashion.