Thy Pedestal Of Shame: Sex Offender Laws And Humiliation In The United States

Abstract

Since the 1990s and into the 21st century, the United States continues to tighten its sex offender laws both federally and at the state level. Simultaneously, a renaissance is also taking place concerning the proper way to punish various offenders. As the United States began to trend toward alternative sanctions, civil programs, and creative sentences, scholars see issues with shame punishments or Scarlet Letter punishments. These punishments seek to: (1) punish the offender for their offense, and (2) encourage the public to shame the offender through various means. While the methods of shaming have evolved since the days of Nathaniel Hawthorne’s Hester Prynne, the same spirit of shaming is present. In light of society’s justifications for punishment, shame punishments are contrary to the goals of punishing offenders. The concerns of improper punishments are raised under the Eighth Amendment in a recent case in the District of Colorado in Millard v. Rankin, 265 F. Supp. 3d 1211 (D. Colo. 2017). Plaintiffs argue that Colorado’s sex offender statute violates, among other provisions, the Cruel and Unusual Punishment Clause of the Eighth Amendment. This student note argues that these sex offender punishments are inconsistent with our justifications for punishment and that shame punishments as a whole are cruel and unusual punishments not consistent with our evolving standards of decency.