The New Age of Scarlet-Letter Punishment - New York Law School

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Sabrina Antebi 3 JAC Capstone solicitors on a cable television channel. 16 A state agency in Georgia posts on the internet the names and photos of parents who are delinquent with child support payments. 17 Judges in Texas have ordered shoplifters to parade in front of the stores they robbed, carrying posters admitting their guilt. 18 A Florida judge sentenced a mother who bought drugs in front of her children to take a newspaper ad telling the community what she had done. 19 These are just some of the examples of the newly aggressive approaches by judges to send a message to offenders, would- be offenders, and the public. Shaming punishments are not only inflicted upon individuals. Every state has enacted some form of sex offender registration legislation. 20 Registration requires that convicted sexual offenders provide local authorities with information regarding their whereabouts and prior criminal history. 21 These “Megan’s Laws” have been enacted at the state and federal level, which require released sex offenders to register their home addresses with the states. Many states publicize this information on websites and through other means. How did the Concept of Shaming Punishments Begin? During the 17 th and 18 th centuries, the most popular methods of punishment involved shaming penalties. 22 At that time, effective deterrence rested upon the shoulders of public humiliation. Public shaming constituted the most severe punishment and tended to cause more 16 Scott E. Sanders, Note, Scarlet Letters, Bilboes and Cable TV: Are Shame Punishments Cruel and Outdated or Are They a Viable Option for American Jurisprudence?, 37 WASHBURN L.J. 359, 370-71 (1998); NBC Nightly News (broadcast Aug. 25, 1994). 17 Sanders, supra note 11, at 370. 18 See, e.g., id. at 367. 19 Fort Pierce Judge Tries Humiliating Defendants, FLORIDA TODAY, Dec. 6, 1996, at 5B. 20 Elizabeth Kelley Ciezniak, Note, There Goes the Neighborhood: Notifying the Public When a Convicted Child Molester is Released Into the Community, 28 IND. L. REV. 715, 717 (1995). 21 See, e.g., People v. Ross, 646 N.Y.S.2d 249, 250 (1996); Sanders, supra note 17, at 372. 22 See, e.g., Brilliant, supra note 5, at 1362.
Sabrina Antebi 4 JAC Capstone pain than physical beatings. 23 Shame punishments led to shunning by the community. 24 As a result, the threat of shame alone deterred crime and controlled deviant behavior. 25 Shaming sanctions were successful because of the small size of American communities and intimate social structure in which members depended upon each other. 26 Most community members were life-long and the towns were essentially self-contained. 27 Shame punishment was based on one’s essential attachment to society. 28 In fact, at these times, the community was synonymous with life itself. 29 As society developed, a more humanitarian approach to punishment evolved. By the 19 th century, shaming sanctions had become “worse than useless.” 30 One such explanation lay in the metamorphosis of American communities from small, intimate and tight-knit to urban, sprawling and anonymous. 31 As a result, the relationships amongst community members began to transform into more impersonal interactions. 32 Another possible explanation is the changes in the composition and size of the population. 33 The 19 th century saw unprecedented population growth, new mobility and 23 Sanders, supra note 16, at 363. 24 Id. at 361. 25 Id. 26 Book, supra note 3, at 658. 27 ADAM JAY HIRSCH, THE RISE OF THE PENITENTIARY: PRISONS AND PUNISHMENT IN EARLY AMERICA 5 (Yale Univ. Press 1992); Barbara Clare Morton, Bringing Skeletons Out of the Closet and Into the Light- “Scarlet Letter” Sentencing Can Meet the Goals of Probation in Modern America Because it Deprives Offenders of Privacy, 35 SUFFOLK U.L. REV. 97, 103 (2001). 28 See, e.g., Book, supra note 3, at 658. 29 HARRY ELMER BARNES, THE STORY OF PUNISHMENT: A RECORD OF MAN’S INHUMANITY TO MAN 45, (Patterson Smith Publishing Corp. 1972). 30 HIRSCH, supra note 27, at 39; Sanders, supra note 16, at 365. 31 Sanders, supra note 16, at 365. 32 Id. 33 Matthew W. Meskell, The History of Prisons in the United States from 1777 to 1877, 51 STAN. L. REV. 839, 842 (1999).
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