[Congressional Record Volume 142, Number 24 (Tuesday, February 27, 1996)]
[Senate]
[Page S1371]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


[[Page S1371]]


                           THE STING OF SHAME

 Mr. SIMON. Mr. President, George Will recently had a column 
about our method of punishment in the United States.
  We have chosen prison as a way to solve our problems of crime, and 
unquestionably, there are many people who commit crimes of violence who 
must be put into prison.
  But it is also true that many are in prison who are not there for 
crimes of violence.
  Obviously, we should do more to deal with the causes of crime. Show 
me an area of high unemployment--whether it is African-American, 
Hispanic-American, or white--and I will show you an area of high crime. 
To effectively prevent crime, we have to do more in the area of job 
creation for people of limited skills.
  The suggestion of shame as a punishment strikes me as being much less 
expensive and perhaps just as effective. We ought to at least 
experiment with it.
  The old stockades that the Puritans used had shame as the main 
punishment.
  The George Will column, which I ask to be printed at the end of my 
remarks, ought to be considered carefully by people in the penal field.
  The column follows:

                [From the Washington Post, Feb. 1, 1996]

                           The Sting of Shame

                          (By George F. Will)

       A New Hampshire state legislator says of teenage 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 
     Prof. 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.
       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?'' 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, 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.
       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 that 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 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.

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