For shame

February 01, 1996|By George F. Will

WASHINGTON -- A New Hampshire state legislator says of teen-age vandals, ''These little turkeys have got total contempt for us, and it's time to do something.'' His legislation would authorize public, bare-bottom spanking, a combination of corporal punishment and shaming -- degradation to lower the offender's social status.

In 1972 Delaware became the last state to abolish corporal punishment of criminals. Most states abandoned such punishments almost 150 years ago, for reasons explained by Professor Dan M. Kahan of the University of Chicago Law School in an essay to be published in the spring issue of that school's law review.

But he also explains why Americans are, and ought to be, increasingly interested in punishment by shaming. Such punishment uses the infliction of reputational harm to deter crime and to perform an expressive function.

The use of stigma

Around America various jurisdictions are punishing with stigmatizing publicity (publishing in newspapers or on billboards or broadcasting the names of drug users, drunk drivers, or men who solicit prostitutes or are delinquent in child support); with actual stigmatization (requiring persons convicted of drunk driving to display license plates or bumper stickers announcing the conviction and requiring a woman to wear a sign reading ''I am a convicted child molester''); with self-debasement (sentencing a slumlord to house arrest in one of his rat-infested tenements and permitting victims of burglars to enter the burglars' homes and remove items of their choosing); with contrition ceremonies (requiring juvenile offenders to apologize while on their hands and knees).

In ''What Do Alternative Sanctions Mean?'' Mr. Kahan argues that such penalties can be efficacious enrichments of the criminal law's expressive vocabulary. He believes America relies too heavily on imprisonment, which is extraordinarily expensive and may not be more effective than shaming punishments at deterring criminal actions or preventing recidivism.

There are many ways to make criminals uncomfortable besides deprivation of liberty. And punishment should do more than make offenders suffer; the criminal law's expressive function is to articulate society's moral condemnation. Actions do not always speak louder than words but they always speak -- always have meaning. And the act of punishing by shaming is a powerful means of shaping social preferences by instilling in citizens an aversion to certain kinds of prohibited behavior.

For most violent offenses, incarceration may be the only proper punishment. But most of America's inmates were not convicted of violent crimes. Corporal punishment is an inadequate substitute for imprisonment because, Mr. Kahan says, of ''expressive connotations'' deriving from its association with slavery and other hierarchical relationships, as between kings and subjects.

However, corporal punishment became extinct not just because democratization made American sensibilities acutely uncomfortable with those connotations. Shame, even more than the physical pain of the lash and the stocks, was the salient ingredient in corporal punishment. But as communities grew and became more impersonal, the loosening of community bonds lessened the sting of shame.

Not only revulsion toward corporal punishment but faith in the ''science,'' as it was called, of rehabilitation produced America's reliance on imprisonment. And shame -- for example, allowing the public to view prisoners at work -- occasionally was an additive of incarceration. It is so today with the revival of chain gangs.

Community service

Recent alternatives to imprisonment have included fines and sentencing to community service. However, both are inadequately expressive of condemnation. Fines condemn ambivalently because they seem to put a price on behavior rather than proscribe it.

The dissonance in community-service sentences derives from the fact that they fail to say something true, that the offenders deserve severe condemnation, and that they say something false, that community service, an admirable activity which many people perform for pleasure and honor, is a suitable way to signify a criminal's disgrace.

Sentences that shame not only do reputational harm and lower self-esteem, their consequences can include serious financial hardship. And Mr. Kahan argues: ''The breakdown of pervasive community ties at the onset of the Industrial Revolution may have vitiated the stake that many individuals had in social status; but the proliferation of new civic and professional communities -- combined with the advent of new technologies for disseminating information -- have at least partially restored it for many others.''

Today America has 519 people imprisoned for every 100,000 citizens. The figures for Mexico and Japan are 97 and 36, respectively. America needs all the prison cells it has and will need more. But policies of indiscriminate incarceration will break states' budgets: The annual cost of incarceration is upward of $20,000 per prisoner and $69,000 for prisoners over age 60. It would be a shame to neglect cheaper and effective alternatives.

George F. Will is a syndicated columnist.

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