Shame as the Sentence: Unleashing the Public on Offenders

Daniel Defoe in the pillory by James Charles Armytage

Is “naming and shaming” ever a punishment that fits the crime? In a move that has drawn significant criticism, the UK government has proposed a section of its new Sentencing Bill, Clause 35, that introduces public, which is to say official, naming and shaming for offenders carrying out community service sentences. We are, thankfully, not about to see offenders placed in stocks and pelted with rotten vegetables, or branded with hot irons. Rather, probation officers will photograph offenders and publish the picture together with the name of the offender and the fact they are serving a community sentence. A previous Labour Government, in 1998, introduced naming and shaming, for people placed under Anti-social Behaviour Orders only for this to be repealed in 2014. The new version is differently motivated.

The prisons are crowded in the UK and to make space the government wants to put more convicted offenders on community service programmes where they serve their sentences doing apparently useful work in the community, as free labour. But, fearing that this move will be seen by the public as being soft on criminals, the sentences are to be garnished with this added, public ostracism twist. To “build confidence”, the names and faces of the offenders will be published, allowing the additional ingredient of public opprobrium.

These motivations are disturbing as they try to satisfy public appetites or assuage fears at the expense of people already being punished through unpaid labour. A core problem here is that public shaming, as a punishment, is deeply morally flawed. Most critics to date have highlighted the instrumental harms of such measures. In this post however we argue that the practice is a moral wrong in itself because of how it treats the target of the punishment.

The problems fall under three headings: First, shaming enlists the public as collaborators in the actions of punishment, rather than state officers subject to distinct instructions under public authority. What is unleashed does not have clear limits and is thus un-restrained by the idea of someone’s punishment justly befitting their crime. Second, given the nature of modern online publications, the personal tainting is itself unlimited in time and space, the ‘long shadow’ of the punishment is potentially forever and everywhere. Third, and most fundamental, naming and shaming wrongs the offender, because it uses them as an instrument in the service of expressing public disdain.

Unleashing the Public

There are good reasons why those carrying out a punishment must be officials of the authority that has imposed it. One key reason is that for the punishment to fit the crime, it must operate within predictable limits determined by that same authority.

However, by design, a significant component of the proposed naming and shaming enlists the public in the punishment. It is the public opprobrium, ostracism, that the offender will face once their name, picture, and community service order are published. And the government effectively seeks this public opprobrium by facilitating it. 

As James Whitman notes, when the public is invited to partner with it in an act of punishment, the government indicates ‘a dangerous willingness…to delegate part of its enforcement power to a fickle and uncontrolled general populace’. Since we cannot know how the public will react, it is not possible to calibrate the harm of the punishment to the severity of the original offence. The public are not officers that are accountable or managed in how they might join in the shaming - can they shout at recognised offenders in the street, make comments to them while they are shopping, publish posts about them, amplify the shaming, perhaps even parade outside their house, as in the medieval European tradition of Charivari? An unregulated punishment by the public means the government fails to take seriously its responsibilities as the accountable agent of punishment and so unjustly offers offenders up to other, unaccountable, agents.

An Unlimited Punishment

A feature of reasonable punishment has to be that to fit the crime, it must be possible to limit the punishment. Unlimited punishments are unjust because they cannot be proportionate to the specific crimes for which they are applied. Yet official public shaming involves the publication of the photograph and name of the offender, plus the fact they are serving a community sentence.

In our own analysis we show how the advent of the internet and in particular social media has compounded the worst ethical aspects of shaming punishments. The kind of online publication that the Sentencing Bill threatens would create a record that is semi-permanent, and which can endure and resurface many years after the original infraction. Section 35 does not currently contain provisions of removal of the photograph and data of the offender once the sentence has been served. But even if it did, this would not remove the data from the public sphere in a world where such data can be stored and transferred across continents and jurisdictions. Moreover, there is no way of knowing in advance how the public will use this information.  Once out there it cannot be withdrawn from the public sphere. Thus, the offender, having served the community service aspect of her sentence, cannot stop serving the shaming aspect.

Instrumentalising Offenders

In moral philosophy classes 101, students are taught that a key fault of simple utilitarianism (the idea that the right thing to do is whatever maximises the satisfaction of people’s preference taken in the aggregate) is that it points in the opposite direction of justice. It might require the hanging of the innocent and the enslaving of minorities, where the most preferences, in aggregate, are satisfied by these measures. What is wrong here is the use of individuals to appease mass preferences, at the expense of showing concern and respect for them as individual lives. As we have noted elsewhere, shaming involves ‘characterising people’s personalities and moral characters as unworthy of participation in certain human relationships’ (p. 2), without limit. If punishment is not to do this, it should not be about appeasing the public’s desire for social ostracism, but about a just response, including a just rehabilitation of those that breach agreed upon norms of social interaction.

But naming and shaming does not do that. By publishing personal details with the clear intention that the offender be publicly identifiable, recognisable to others on the street, offenders are branded as morally tainted and deviant as persons, to be shunned or vilified by morally good people. They are not invited to reflect, and join society on the right terms, but rather are ostracised in a way that expresses the rejection of their membership. The act of ostracism communicates or expresses to the offender not only that their crime is not acceptable, but that they as a person are.

Note that public shaming is not about creating specific effects, such as remorse and a desire to change, in the individual offender. The practice shames in a different sense: it produces conditions where the public can ostracise offenders, regardless of the impact and the outcome, where shaming is an action done to the offender for the sake of public feeling. It serves no other goal. It is helpful here to note a distinction that philosophers of emotion traditionally make between shame and guilt. While guilt focuses on a person’s actions (i.e. what they have done), shame focuses on a person’s character (i.e. who they are). Guilt is typically seen as the more morally productive of the two, since a person can acknowledge their wrongful act, make amends and seek reconciliation with others. Shame by contrast focuses on public perception, casting the whole person as unworthy. In the context of punishment, it is not so much the emotion of shame that matters but the act of shaming. Shaming incites a collective act of disqualification, branding someone as shameful, irrespective of whether or not they actually experience the emotion of shame as a result. It is this public casting of persons as tainted and deserving of exclusion that marks the measures in the Sentencing Bill as a form of shaming.

While most legal scholars and philosophers have been sceptical of shaming punishments, some have defended them on instrumental grounds as a low cost means of deterring crime. Law professor Dan Kahan once offered the further non-instrumental justification that shaming sanctions fulfil a valuable ‘expressive’ role of punishment in signalling society’s unequivocal condemnation of certain offences. Giving judges the power to inflict shaming sanctions, he argued, can provide a useful supplement or alternative to community service activities which, because they ‘conventionally entitle people to respect and admiration…fail to express condemnation in an unambiguous way’. In the US, some states have published a registry of individuals who have solicited prostitutes, mandated sex offenders to place warning signs outside their houses on Halloween and required those caught drunk driving to carry ‘DUI’ (Driving Under the Influence) badges on their licence plates.

Yet, in contrast with the community service aspect of offender sentences, public shaming involves an inextricable element of social exclusion and ostracism. Condemnation and stigmatisation are extended beyond the actions of offenders to them and their personalities, and appearance in public. As Martha Nussbaum points out, in ‘Hiding from Humanity’, had her own ‘alcoholic mother’ been punished for her drunk driving by being made to carry a ‘DUI’ licence plate, rather than ‘quietly settling her score with the state, through the suspension of her licence and other guilt-based sanctions’, the display would have marked her out as a ‘drunk mother’, and her husband and children too would have been seen as ‘substandard’. And this, according to Nussbaum, would have ‘broken her spirit’. (p. 231).

Isn't a Public Record made of Standard Sentencing?

Yes, criminal offences and convictions are a matter of public record. But that is different from publication of a kind intended to be seen and experienced by the wider community, such that they are able to engage in shaming. The addition of the photograph makes it clear that this, unlike official court decisions, is intended to have a high public engagement component. The individual will be shamed in front of the community, rather being prompted by their punishment to feel privately ashamed of their actions.

Final Problem

There is a philosophical view according to which to commit a crime is to effectively give away all of one’s moral rights, to forfeit them, and thereby face a kind of ‘social death’ as an entity with no moral status. That view would make any treatment of offenders open to adoption as a social punishment, regardless of consequences for the offender. Modern proponents of the forfeiture view do not remove proportionality or sanction total loss of moral status for offenders. The idea of total forfeiture of rights at the point of punishment is also incompatible with rehabilitation or with humane treatment. It does not see a problem with punishments failing to be determined and determinate in their scope, or with their being disproportionate. It is one of the least plausible views of punishment. As with the other arguments we have examined, it is not a reasonable basis from which to defend naming and shaming punishments. Ultimately, these new measures will take state punishment practices in the UK in a disturbing, ethically indefensible direction.

Guy Aitchison is Senior Lecturer in Politics and International Studies Loughborough University, UK. He works on pressing global issues through an ethical lens, such as human rights, injustice and political resistance.

Saladin Meckled-García is Associate Professor in Human Rights and Political Theory at University College London, UK. He works on a variety of issues including human rights, academic freedom, and global justice.

Disclaimer: Any views or opinions expressed on The Public Ethics Blog are solely those of the post author(s) and not The Stockholm Centre for the Ethics of War and Peace, Stockholm University, the Wallenberg Foundation, or the staff of those organisations.