Should Humiliation and Shame be a purpose of Sentencing?

In one of my recent Criminal Investigation lectures, our lecturer engaged the class in a discussion about guilty pleas and their resulting "discounted" sentences, in our criminal justice system. While exploring the various goals and functions of sentencing, it was pointed out that as a matter of public policy, the necessity to humiliate someone for their offence/crime seems to be the driving force for why we parade someone in court, read out their convictions and the respective punishments they will receive. This idea of humiliation being a purpose for sentencing piqued my interest, and I decided that it warranted a brief discussion on this space.


The evolution of public humiliation, from a form of Punishment to a subset of Sentencing

In the olden days, it was typical for criminals and offenders to be subjected to public humiliation, as a form of punishment for their crimes. Such measures included public confessions, public whippings and executions, and brandings of certain insignia into offenders' skins, often indicating the type of offence(s) they had committed. For example, branding the letter B into a burglar's skin would show that he had committed burglary.

While such corporal punishment is gradually being outlawed on an international platform, such an element of humiliation is still used in the modern context of criminal justice. For example, criminal trials are generally open to the public, and perhaps somewhat analogous to the idea of branding, anyone could easily do a Google search on someone's criminal history. The sentencing process usually involves a judge admonishing the particular offender for his conduct, before imposing a sentence. Henceforth, humiliation has since evolved into an element of sentencing, with all sentences subjecting offenders to various forms of public humiliation.


The main purposes of Sentencing in Victoria

Section 5(1) of the Sentencing Act 1991 (Vic) sets out the only purposes of sentencing an adult, which include:

• Punishment of the offender;
• Deterrence - to deter the offender or others from committing such an offence;
• Rehabilitation;
• Denunciation of the illegal conduct; and
• Protection of the community.

While humiliation is clearly (and understandably) not an express statutory purpose of sentencing, it is arguably relative to the stated purposes, especially with regards to punishment of the offender. Therein, in assessing whether humiliation should be a purpose of sentencing, it is necessary to consider whether offenders should be named and shamed for their wrongful conduct/crimes.

Should we publicly shame offenders for their wrongful conduct?

Subjecting offenders to humiliation for their crimes, is clearly a form of retributive justice and punishment. Arguments have been made for its merits, including that shame is effectively a form of social control and deterrent to the public masses. Indeed, the very basis for which we perceive conduct such as theft, assault and murder, as wrong, might very well be because of the inherent shame and condemnation attached to such actions.

On the other hand, others argue that stigmatic shaming actually has a counterproductive result. There have been various examples of stigmatic shaming being employed by United States judges in recent years. For instance, in 2014, a Cleveland judge ordered Edmond Aviv to spend 5 hours alongside a busy street, holding up a big sign which branded him as a bully. Similarly, back in 2012, another Cleveland judge gave a woman a choice of going to jail, or spending two days standing on a street corner with another shameful sign. She chose the latter. Source: Is Public Shaming Fair Punishment?

One of the key purposes of criminal sentencing has always been rehabilitation of the offender. The relevant key question would thus be: Does shaming encourage rehabilitation? Professor Braithewaite argues in Crime, Shame and Reintegration that shaming is only effective when it is the wrongful act which is shamed, instead of the person who is shamed, as part of restorative justice processes. This is also known as the reintegrative shaming theory, which holds that punishments should focus on the offender's behaviour, rather than on the offender.

Such an reintegrative shaming theory is further strengthened by the defiance theory, which Howard Zehr explained quite simply as: "Disrespect begets disrespect". Lawrence Sherman made the following 3 propositions in Defiance, Deterrence and Irrelevance:

1. Illegitimate sanctions provoke defiance of the law, as such sanctions result in weakened bonds between the offender and the sanctioning agent and community. Offenders go on to deny their shame and become proud of their isolation from the sanctioning community.
2. Legitimate sanctions produce deterrence of law-breaking, as they result in strong bonds between the offender and the sanctioning agent and community. Offenders accept their shame and remain proud of their solidarity with the community.
3. Sanctions are irrelevant to future law breaking where factors encouraging defiance or deterrence are fairly and evenly counterbalanced.

Clearly, ordering people to march around with signs proclaiming their guilt could be fairly described as an illegitimate sanction, falling under Proposition 1. In my personal opinion, such sentencing measures are dehumanizing and cruel, and a form of state sanctioned bullying, which serve no real purpose in promoting rehabilitation, or preventing re-offending. 

Final thoughts

In a nutshell, while I do accept that humiliation and shame is an inherent consequence and subset of the criminal justice system and its various processes, I do not believe that it should be promoted as a core purpose or rationale behind sentencing. The criminal justice system must be wary of the damaging effects of moral superiority and moral lecturing, when handing down sentences, if it wishes to see a genuine demonstration of remorse and contrition on the part of offenders.