The Shame of Public Shaming

Justice suffers when judges mete out viral punishments.

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.

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.