268. "Back to the Pillory?" The American Scholar, Vol.
68, No. 3, (Summer 1999), pp. 43-50.
Young drug dealers, caught for the first time peddling, should be sent home with their
heads shaved and without their pants instead of being jailed, was a suggestion I cautiously
floated. My liberal friends rolled their eyes and stared at me with open dismay. When I tried to
explain that if the same youngsters are jailed they are likely to graduate more hardened criminals
than when they entered the stockades, that rehabilitation in prisons is practically unknown, and
young people are often abused in jails, one of my friends stated that next thing I would mark
people with scarlet letters. The others changed the subject.
A recent tragedy brought the merit of shaming back into public and scholarly discussion.
We were discussing on NPR the raping and killing of a seven-year-old girl by a man in a lady's
room in a Las Vegas casino. The media attention this time was not focused on the father, who
left his child roaming the casino at 3:30 a.m., or on the rapist-assassin Jeremy Strohmeyer, but on
the friend of the assassin, one David Cash. He accompanied the Mr. Strohmeyer to the lady's
room but did nothing to try to stop the savaging of Sherrice Iverson or to inform the police after
In reaction, outraged Congress member Nicholas Lampson drafted a Good Samaritan act
that imposes severe punishments on those who do not stop a sexual crime against a child when
they could do so at little risk to themselves, or who do not report such offenses to public
authorities. UCLA law professor Peter Aranella, who joined the NPR conversation, argued that
the punishment was too severe and suggested instead that a shorter jail sentence should suffice.
Ms. Elizabeth Semil from the National Association of Criminal Defense Lawyers, also on the
panel, was even more critical of the Good Samaritan draft act. She pointed out: ". . .Punitive
legislation, criminal legislation, isn't the proper response." She also wondered out loud "whether
making it criminal to fail to act is good public policy. In other words, is it going to assist in
solving the problem? And my response to that is: absolutely not." A typical letter to the editor
of the Sacramento Bee opined "I realize this is a popular issue, but the consequences of a law of
this nature are terrifying. . . . Americans would be required to function as part of the government
apparatus. . . . Maybe you know someone who takes cash in their business, but doesn't
necessarily tell the IRS. You may go to jail for not turning that person in." A commentator in
Bergen, New Jersey's Record holds forth, "As much as I'd like to encourage compassion and
community, I think it's too late to legislate such morality."
I, too, wondered if Americans should and could be turned into a nation of police
informers, a role often despised not merely by their fellow citizens but even by the police
themselves. And yet there is a strong sense that Mr. Cash behaved poorly (or worse) and others
must do better. One looks for ways Good Samaritans may be fostered but in some less punitive
way, best one that entails no jail terms.
I suggested shaming. Instead of jailing future Cashes, the law should require that the
names of bad samaritans be posted on a web site and in advertisements (paid for by the
offenders) in key newspapers. Such posting would remove any remaining ambiguities
concerning what society expects from people who can help others when there is no serious risk to
their well-being. And those with a weak conscience or civic sense will be nudged to do that
which is right by fearing that their names will be added to the list of bad samaritans, their friends
and families will chide them, and their neighbors will snicker.
While there are no statistics on the matter, judges seem recently to try shaming more
often than a decade or two ago, as a middle course between jailing offenders and allowing them
to walk off scot free. Those convicted of driving under the influence of alcohol in Fort Bend
County, Texas, must place "DUI" bumper stickers on their cars. A child molester in Port St.
Lucie, Florida was ordered by a judge to mark his property with a sign warning away children,
The same judge ordered a woman convicted of purchasing drugs in front of her children to place
a notice in the local newspaper detailing her offense. Stephen K. Germershausen was ordered to
place a four-by-six inch ad in his local Rhode Island newspaper, accompanied by his photo,
reading, "I am Stephen Germershausen, I am 29 years old. . . . I was convicted of child
molestation. . . . If you are a child molester, get professional help immediately, or you may find
your picture and name in the paper. . . ." A Tennessee judge sentenced a convicted defendant to
confess his crime of aiding in the sale of a stolen vehicle before a church congregation. Syracuse
puts embarrassing signs in front of buildings owned by slum lords, and Des Moines publishes
their names in newspapers.
Far from being widely hailed as a more humane and just way of punishing offenders and
deterring others, judicial shaming has raised waves of criticism that put to shame my friends'
reaction to my proposals. Nadine Strossen, president of the American Civil Liberties Union
(ACLU) was rather gentle: "I'm very skeptical when criminologists and sociologists say that the
best way to rehabilitate someone is to isolate him and put some sort of scarlet letter on him. We
need to integrate criminals back into our community." The ACLU's Mark Kappelhoff states that
"Gratuitous humiliation of the individual serves no societal purpose at all. . . and there's been no
research to suggest it's been effective in reducing crime." Judge Politan, U.S. District Court
(N.J.), wrote similarly that:
[S]ocieties have often used branding or close equivalents thereto as means of
making certain persons or groups of persons easily identifiable and thus, easily
ostracized or set apart . . . A clear example of such branding, justified by a social
purpose wrongfully deemed acceptable by the populace, was the requirement in
Nazi Germany that Jews wear the Star of David on their sleeve so that they might
easily be identified . . . This Court must determine whether Megan's Law and its
attendant notification provisions amount to a branding of registrants with a 'Mark
of Cain' or a 'Scarlet Letter,' thus rendering them subject to perpetual public
Law professor Evan Cherminsky is also concerned about shaming, claiming "[t]he real
measure of how civilized we are is the way we choose to punish people. It's not civilized to tell
somebody 'you're going to sit in the stocks and we're going to throw stones at you.'" Carl F.
Horowitz, Washington correspondent for Investor's Business Daily, attacks shaming, which he
writes includes public hanging, beheading of drug dealers, blacklisting, and boycotts.
When I faced similar challenges from a class I teach at George Washington University, I
suggested an examination of shaming suffers if one labels all punitive measures one disapproves
of and seeks to shun, as shaming. True or pure shaming entails only symbolic acts that
communicate censure, ranging from relatively gentle acts such as according a student a C+ or
sending a disruptive kid to stand in the classroom's corner, to such severe measures as marking
the cars of convicted repeat drunk-drivers with glow-in-the-dark "DUI" bumper stickers.
Shaming differs sharply from many other modes of punishment--public flogging, Singapore
style, for instance--in that the latter inflict bodily harm, rather than being limited to psychic
discomfort. While shaming has some untoward consequences of its own, it is relatively light
punishment, especially if one takes into account that most other penalties shame in addition to
inflicting their designated hurt.
I also stressed that shaming is morally appropriate or justified only when those being
shamed are acting out of free will. To the extent that people act in ways that the law or prevailing
mores consider inappropriate, but cannot help themselves from doing so (such as when those
with a mental illnesses defecate in the streets or scream their head off at three a.m.), chiding them
is highly inappropriate. They are to be helped, removed if need be, but hardly shamed.
When I tried to advance similar arguments on NPR, Ms. Semil would not have any of it;
she instead would rely on education, celebrating those who conduct themselves as Good
Samaritans rather than punishing those who do not.
Instead of thinking about ways in which we can shame people, let's think about
ways in which we can honor or hold up examples of the many heroes that we read
about every week who risk their lives to save others; in other words, teaching by
positive example children and adults that, indeed, this kind of behavior is
rewarded and respected and admired.
Such suggestions show that one's assessment of shaming is highly colored by one's
assumption of human nature. Ms. Semil belongs to the sanguine camp that believes that people
can be convinced to conduct themselves in a virtuous manner solely by means of praise,
approbations, and words of encouragement, or by drawing on non-judgmental responses,
allowing the goodness of people to unfold. For those who share this view, shaming is not merely
cruel but also unnecessary punishment; indeed, punishment in general is anti-social. Many of
those who hold this view of human nature tend also to believe that people are good by nature, if
they misbehave--either the demands imposed on them are unjust or their behavior reflects
distorting forces which they neither caused nor are able to control (for instance, that they were
abused by their own parents).
I file with those who hold that a world of only positive reinforcements, while in theory
very commendable, is not within human reach, and that hence a society must--however
reluctantly--also employ some forms of punishment. Granted, we should first determine if the
social demands are fair and reasonable, and to what extent we can rely upon positive
inducements in given situations. But, at the end of the day, some form of disincentive--hopefully
sparing and mostly of the gentle kind--cannot be avoided. Or, as Judge Ted Poe, a strong
proponent of shaming penalties, puts it, ". . . a little shame goes a long way. Some folks say
everyone should have high self-esteem, but that's not the real world. Sometimes people should
An often overlooked feature of shaming, I should add, is that it is deeply democratic.
Shaming reflects the community's values, and hence cannot be imposed by the authorities per se
against a people. Thus, if being sent to the principal's office is a badge of honor in a person's
peer culture, no shaming will occur in that situation. A yellow star, imposed to mark and shame
Jews in Nazi Germany, is worn as a matter of pride in Israel. Thus, people are better protected
from shaming that reflects values that are not shared by the community than from other forms of
punishment, punishment that can be imposed by authorities without the specific consent of those
who are governed.
Critics are quick to turn the communitarian tables on those who seek to use community to
shame offenders by pointing out that communitarians have shown that communities are waning.
Legal scholar Toni M. Massaro argues in Michigan Law Review that shaming will be cogent and
productive only if five conditions coexist.
First, the potential offenders must be members of an identifiable group, such as a
close-knit religious or ethnic community. Second, the legal sanctions must
actually compromise potential offenders' group social standing. That is, the
affected group must concur with the legal decisionmaker's estimation of what is,
or should be, humiliating to group members. Third, the shaming must be
communicated to the group and the group must withdraw from the offender--shun
her--physically, emotionally, financially, or otherwise. Fourth, the shamed person
must fear withdrawal by the group. Finally, the shamed person must be afforded
some means of regaining community esteem, unless the misdeed is so grave that
the offender must be permanently exiled or demoted.
But, Massaro adds, the "cultural conditions of effective shaming seem weakly present, at best, in
many contemporary American cities."
While granting that it is unfair to say that "Americans have no commonly shared instincts
about crime or about shame," Massaro believes that "American subculturism, or cultural
pluralism, is pronounced enough to make broad conclusions about our moral coherence suspect,
and thus to undermine the likely effectiveness of widespread government attempts to shame
offenders, absent significant decentralization of criminal law authority and the delivery of formal
norm enforcement power to the local subcultures."
Massaro and others who draw on communitarians' arguments do not take into account
that while communities clearly are much weaker now than they were in, for instance, colonial
days, they are not powerless, especially in smaller towns and in what have been called urban
villages, numerous ethnic concentrations in big cities that form rather strong communities--Chinatown in New York City, for instance. Otherwise shaming would be no punishment at all.
People are, however, very reluctant--ashamed--to drive around with a DUI marker on their car or
to take ads in their town newspaper that contain their picture, apologizing for their offenses.
Indeed, an accountant, who was sentenced to stand in his neighborhood with a sign "I embezzled
funds" seemed deeply distraught when interviewed, and mused that he might have been better off
if he had instead accepted a jail sentence. Hardly indifference. A woman convicted of welfare
fraud in Eau Claire, Wisconsin preferred to be jailed than wear a sign admitting, "I stole food
from poor people."
In arguing about these matters with liberal criminologists, I picked up a useful distinction
between two kinds of shaming, one that isolates and is to be avoided, and one that reintegrates
offenders into communities and is to be preferred. Liberal criminologists worry that once a
person is shamed, he will be cut off from his community and withdraw into himself or worse,
into a criminal subculture, and hence will be unlikely to be rehabilitated. Instead, criminologists
suggest dealing with crimes in a way that restores people to good standing in their communities.
The measures they favor include face-to-face meetings of the offenders and the victims,
"facilitated" by community members; the offenders making amends (for instance, rebuilding a
fence their car demolished); and closure, a ritual of reconciliation and forgiveness, all of which
restore the offender to full membership in the community. David Karp, a criminologist, adds,
"These efforts may be through social services or local economic efforts to change the social
conditions of the offender's neighborhood."
Reintegrative shaming may well be the best shaming there is, although the jury is out on
whether it can be made to work, especially for offenders who are members of different
communities than their victims, such as gang members. In effect, any kind of shaming will work
only if it is couched in the reference terms of the community of the offenders--or if these terms
can be changed as shaming occurs.
Our history offers some lessons on the working of shaming, mainly what happens to a
good thing when it is driven too far, much too far. Most importantly, history teaches us the
significance of the particular context. In colonial America shaming was very common, not
merely one tool of punishment among others but a major one. Indeed, historians report it often
worked so well, no prisons were deemed necessary in some colonies, for instance, in South
Carolina. (Reference is only to white folks; slaves were savagely treated).
One reason shaming was so powerful is that it took place in communities that were much
smaller, tightly knit, and moralistic than any known to us today, on these shores. Historian
Lawrence M. Friedman describes them as "little worlds on their own, cut off from each other..."
and "...small-town life [was] at its most communal--inbred and extremely gossipy." Another
historian, Roger Thompson, writes about Massachusetts that its communities were "well stocked
with moral monitors who did not miss much in the goldfish-bowl existence of daily life." Single
people, who moved into colonies, were required to board with someone, so that the community
could better keep an eye on them.
In contrast, today many Americans are members of two or more communities (for
instance, at work and where they reside) and psychologically can shift much of their ego
involvement from a community that unduly chastens them to another. While it was not practical
for most individuals to escape from one community to another during colonial times, today the
average American moves about once every five years, and in the process chooses to which
community he or she are willing to subject themselves. Moreover, privacy at home is much
greater, and the moral agenda of most communities is almost incomparably shorter.
In short, the colonial era shows us how little we now seek to shame about and how
limited our ability to shame actually is. (Amy Gutmann, a liberal philosopher at Princeton
University, once quipped, that "communitarians seek Salem without witches" which the
communitarians took as a scorching criticism. As I see it, we communitarians should,
shamelessly, plead guilty as charged. We do favor communities in which moral mores are
upheld without witch hunts, and maintain that in our kind of society this is possible).
The purest form of shaming was 'admonition.' Law professor Adam Hirsch described it
Faced with a community member who had committed a serious offense, the
magistrates or clergymen would lecture him privately to elicit his repentance and
a resolution to reform. The offender would then be brought into open court for
formal admonition by the magistrate, a public confession of wrongdoing, and a
pronouncement of sentence, wholly or partially suspended to symbolize the
"The aim was not just to punish, but to teach a lesson, so that the sinful sheep would want to be
back to the flock" writes Friedman.
The emphasis on reintegrative justice should appeal to the progressive criminologists who
seek to restore it, although for others it may evoke the image of a Soviet or Chinese trial. Having
witnessed one of these, what offended me most was not the shaming per se but the kind of
matters people were shamed for, having conceived a second child and listened to the BBC.
While pure (merely symbolic) shaming was employed in the colonial era and long
thereafter, often it was mixed with other forms of punishment such as fines, whipping, and
Stocks and pillories combined holding people up for public ridicule, with confining their
movements, exposing them to the elements, and at least a measure of physical discomfort.
Friedman describes another common shaming measure, which was to make the culprit
wear for six months
a "Roman T, not less than four inches long and one inch wide, of a scarlet colour,
on the outside of the outermost garment, upon the back, between the shoulders, so
that all times to be fully exposed to view, for a badge of his or her crime." A
robber had to wear a scarlet R; and a forger, a scarlet F, "at least six inches long
and two inches wide."
But, unlike the DUI signs today, wearing of these insignia was proceeded by a public whipping
in a considerable number of cases.
All said and done it is easy to see why shaming as practiced in earlier periods or in other
kinds of societies, has left it in ill-repute. We best think about shaming in terms how different our
much more liberal and tolerant society may adapt it to our needs rather than be swayed by an
Most important, one must not evaluate any social policy in itself but must compare it to
others. The existing criminal justice system jails millions of people, about half of them for non-violent crimes mainly dealing in controlled substances. Offenders are incarcerated for ever long
periods, in harsher conditions, with fewer opportunities for parole. Still, the system, rehabilitates
very few, and the recidivism rate is very high. And the system imposes high charges on the
taxpayers. A year in jail costs the public about the same as a year at one of our nation's most
costly colleges. Ergo, society is keen to find some new, more effective, and more humane and
less costly than other modes of deterrence. Whether it works, and for which kinds of offenders,
we are about to find out, that is, if our well-meaning progressive friends will allow us to proceed.