What Is Wrong with Inflicting Shame Sanctions?

Abstract

This paper tackles the problem of the reemergence, in the USA, of sanctions involving ritualized public humiliation of offenders. The paper begins by observing that such sanctions are very widespread in human societies, including both pre-modern societies and modern ones such as that of Maoist China. The paper then concedes that the traditional liberal accounts of what is wrong with such sanctions do not seem to carry much weight. Even the commonly offered sociological argument that shame sanctions cannot work in a modern, urbanized, society is a weaker argument than it seems: in practice, shame sanctions are imposed only on certain, peculiarly vulnerable classes of offenders--in essence, on sex and morals offenders, commercial offenders and first offenders. The claims that justified the great eighteenth-century attacks on shame sanctions no longer have much meaning, since they assumed clearly articulated status differences that no longer exist. As for the claims of the Victorian era, which saw the ultimate abolition of shame sanctions: Those Victorian claims grew out of a sensibility of decency in public comportment that we no longer share. We also no longer share the Christian sensibility that contributed to the campaign against shame sanctions: The idea that public shame should be replaced by inward, conscience-governed, guilt, is an idea that has little power in our less-than-fully-Christian society. Nor do the great traditional political arguments against public shaming resolve the question. We can divide those political arguments into two strains. On the one hand, there is the liberal argument, associated with figures like Mill, which holds that shaming is a style of sanction to be imposed by society rather than by the state; on the other hand, there is the authoritarian argument, present from the eighteenth century into the Nazi period, which condemns public shaming because of its tendency to trigger riots. The paper briefly considers and rejects both arguments. Nevertheless, the paper argues, the political arguments against shame sanctions, and in particular the authoritarian arguments, do point the way toward an answer to the question of what is wrong with shame sanctions. For the fault in shame sanctions, in the last analysis, does necessarily have to do with their impact on the offender at all. Shame sanctions should be seen as a form of officially-sponsored lynch justice; and the evil in shame sanctions should be understood as an evil growing ultimately out of the relationship those sanctions establish between the state and the crowd it stirs up. This does not mean that shame sanctions do not arguably do harm to the offender's dignity: they threaten harm to what the paper calls the offender's transactional dignity. But the evil in shame sanctions goes beyond any harm to the offender. For such sanctions lend themselves, even if only potentially, to a style of demagogic politics, and encourage an ugly species of mob psychology--especially when those sanctions are imposed on sex offenders and commercial offenders. The evil in American shame sanctions is, in fact, akin to the evil that we sense is present in the shame sanctions of Maoist China: They belong to an ordering based on governance by mob.