From “Scarlet Letter” to 1995, Americans want criminals to suffer shame with punishment

In theaters this week, Demi Moore’s Hester Prynne in “The Scarlet Letter” is condemned to wear a big red “A” as punishment for her adultery. These days, Hester might be required to wear a T-shirt saying “I am an adulterer.”

Shame is making a comeback in punishment, says Dan Kahan, Assistant Professor in the University of Chicago Law School. He says recognizing society’s need to condemn people who break the law is the first step toward making alternative sentences to imprisonment work now.

“The public is reluctant to accept fines or community service because those sanctions don’t convey adequate moral condemnation of the criminal,” Kahan says. “Shame has the power to condemn. The return to shame is not a development to regret, but an opportunity to seize.”

Courts have increasingly incorporated an element of shame into their sentences that don’t include jail time. For example, Kahan cites penalties including a contemporary version of the stocks–some communities require offenders to stand in public spaces such as the local courthouse with signs describing their offenses. Other shaming punishments have included:

* Ordering convicted burglars to allow their victims to come into their homes and take anything they wanted.

* Requiring offenders to apologize–on their hands and knees in Maryland–for their crimes.

* Requiring parents of children who violate the town curfew to place a bumper sticker on their car that says “My children are not my responsibility. They are yours.”

* Publishing the names of offenders in newspapers or on billboards listing the names and the offenses–including the offense of soliciting a prostitute.

* Requiring thieves to wear T-shirts or brightly colored bracelets announcing their crimes. One judge ordered a woman to wear a sign saying “I am a convicted child molester.”

Kahan says courts are using shaming penalties for crimes such as drunk driving, petty theft, embezzlement, assault, burglary, perjury, toxic-waste dumping and drug distribution. They are an important opportunity, he says, because they can make alternative sentences such as community service more acceptable to the public.

“Conventional alternatives are defective because they aren’t shameful enough," he says. “They don’t seem to make the right statement about how the public feels about the moral quality of the offenders. That’s what these shaming penalties can do.”

In a paper to be published in the University of Chicago Law Review’s winter 1996 issue, Kahan says putting people in prison has been a popular punishment since the beginning of our nation. It’s appealing because it provides both deprivation of freedom and society’s condemnation.

But imprisonment is very expensive, Kahan says. And as Americans grow increasingly intolerant of lawbreakers, taxpayers are paying for more prison space. Studies show that common alternative punishments such as community service and fines are just as effective as imprisonment at deterring certain kinds of crimes. Both liberal and conservative advocates have urged the use of alternative sentences for more than a decade, but progress has been slow, Kahan says.

“The alternative-sanctions movement hasn’t paid attention to what punishment means to society,” Kahan says. “The public wants punishments to say how we feel about the criminal.”

With the growth of newer alternative sentences, judges should include that element of condemnation, he says.

“If we omit the element of shame, society won’t accept simple, effective alternatives to imprisonment like fines,” Kahan says. “The result is that America will continue to have too many people in prisons and too many dollars spent to keep them there.”