Should Public Shaming Be an Option for Criminal Punishment?

Implicit in most forms of criminal punishment is an element of public shame. Trials are generally visible to the public, and the convictions and sentences become a matter of public record, for the entire world to see. On the public record for years to come is a clear statement by a court saying something to the effect of “this person broke our society’s rules, and is being punished for it.”

However, we’ve generally shied away from more direct and literal forms of public shame for punishment. Adulterers no longer have to wear a scarlet letter. Petty thieves are no longer put in the stocks. However, in recent years, it seems that literal public shaming is coming back into vogue.

In the case linked above, a judge ordered a man who skipped out on jury duty to stand outside the courthouse for two days, holding a sign that read “I failed to appear for jury duty.” This is similar to what other judges have done. Occasionally, judges will order shoplifters and other petty criminals (especially young people who are first offenders) to stand in front of the business they stole from holding a sign telling the world what they’ve done.

But, are such punishments appropriate? And, with respect to the issue in this particular case, should we re-think the whole concept of mandatory jury duty?

First, the question of public humiliation as punishment: is it constitutional? And is it effective?

The principle behind public humiliation as punishment is simple enough: people don’t like being humiliated, and the prospect of facing public humiliation could perhaps serve as a stronger deterrent than more “severe” punishments like imprisonment or probation. And, enforcing a court order to stand outside a business holding a sign for a few weeks is probably far cheaper for the state than keeping a person in prison or on probation for months or years.

But even if you grant that public humiliation is effective, there’s the question of whether or not it’s constitutional. The 8^th Amendment to the Constitution prohibits the government from imposing “cruel and unusual punishment.” However, as with many other important terms in the Constitution (such as “due process of law,” “unreasonable search and seizure,” and “free exercise of religion”), the text of the Constitution doesn’t bother to define the term. This was probably deliberate, as it gives courts leeway to adapt constitutional principles to evolving societal standards.

Personally, I think being required to stand in a public place a few hours a day for a few days or weeks holding a sign announcing to the world what they’ve done, especially when it’s in lieu of jail time, is an appropriate punishment for some crimes, under certain circumstances.

There should be some basic safeguards in place to ensure that these punishments do not become cruel and unusual. For instance, a police officer should be present the whole time to monitor the offender’s compliance with the sentence. But, just as importantly, they would be there to protect the offender from violence committed by others. If punishments that center on public humiliation amount to a tacit endorsement of vigilante justice, it would quickly become unconstitutional. Likewise, allowances should be made for severe weather. If a person is forced to stand outside in freezing weather, developing hypothermia or frostbite, they’ll have been subjected to a punishment that is extremely excessive for the crime.

The case linked above also raises some issues about mandatory jury service, though the juror in question isn’t exactly the most sympathetic person: he’s unemployed, and admitted that he skipped out on jury duty because he wasn’t paying attention to the judge, and didn’t realize that he had to return after the court adjourned for lunch. Being unemployed, it’s not as if he had anything else to do. And he probably could have used the money that jury service pays (even if it is a pittance of 10-20 dollars a day).

However, in many other cases, mandatory jury service can represent a significant hardship, which is often overlooked. And courts and commentators are often very cavalier about the burden that jury duty can place on ordinary people, often resorting to lectures about civic duty which can just come off as pious and out-of-touch, without offering suggestions on how to mitigate these issues.

Of course, I’m not advocating the abolition of jury service (that would be impossible without eliminating the right to trial by jury), but I think it could be in need of a few commonsense reforms. One of the biggest complaints about mandatory jury service is that it requires people to skip work, often giving up their pay. Only a small minority of states require employers to pay employees while they’re on jury duty. And while most states do pay jurors, the amount is usually insultingly low, considering the importance of the role that jurors play, and the burden that jury service can present. At the very least, jurors should be paid minimum wage for their service. Usually, they are paid far less than that.

If a juror is employed, perhaps employers could be required to contribute a portion of this sum, so the taxpayers do not have to shoulder the entire financial burden. And by making jury service slightly less burdensome and inconvenient, we would probably decrease the number of people who try to get out of jury duty, making it less likely that juries are going to be composed of people who resent being there, and therefore don’t take their responsibilities seriously.

Jurors are the backbone of our legal system, and any measures encouraging them to take their duties seriously should be given serious consideration.

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