Boy, I'm gone a couple of days and a really good topic hits the blogs. Doug Berman has again stated his support in some instances for shaming as a sanction alternative to prison sentences, particularly the really long ones, and has gotten some predictable responses as knees jerk across America. I made the mistake of expressing similar qualified support for Braithwaite's restorative shaming concept in a graduate corrections seminar I was teaching once and you'd have thought I'd revealed I'd done things with relatives.
The problem with having a serious deliberation about shaming as a concept is that the people most needed in the discussion come to it with heavily prepared cognitive schemas that allow no adaptation. In fact, there are two kinds of shaming possible in sentencing--that done as some of the posts Doug links to imply, that is, with an eye to how the offender will see his/her connections to a valued community threatened, and that done with pure punitive (dare we say, gleeful and/or sadistic) self-righteousness (public stocks and Scarlett Letters come to mind). The problem for shaming as an alternative is that there's not always a good way to keep the lines between the two distinct, or at least we haven't found one yet. The problem for us discussing it is that the knee-jerking that it's always the latter option effectively cuts off the discussion and any search for good ways to do it.
However, we shouldn't act like we're not already doing it. It's here. Some of Doug's fellow discussants mentioned restorative justice as a better option. Well, what do we think restorative justice is? One of the common techniques is victim-offender mediation, specifically designed to get the offender to realize the human toll of his/her actions. That's not public, you say? It is if the punishment includes restitution of the sort many results do, like repairing damage to property or doing community services. We recently ran a news piece here on a program in which the victims went to prison to confront their assailants in the same way. Happened behind bars? Okay, first, let's stop this silliness that being behind bars somehow acts like a cloak of invisibility on offender dignity. And some of these confrontation programs are done in groups of offenders and victims to make them more effective, and that's pretty public.
And look at what we're starting to do with home detention and GPS. You can't leave your house when people ask you out? Pretty public to me. Can't go certain places with them? Pretty public to me. Wearing some attractive state-provided jewelry everywhere you go? Pretty public to me. Yet these things are happening and will expand without serious discussion of their restorative purposes because we automatically leap to the "we can stick people in our prisons and jails with impunity and not do a thing about their dignity but let's not publicly identify them because that might really hurt them" point. (I've always found dogs good for my dignity.)
So much of our corrections sentencing today is happening under the radar like this because we're not having serious discussions of the point of sentencing to punishment, or, rather, the points we do discuss are rehashes of all the old points. "Just Deserts!!" "No, no, Rehab!!" "No, no, Public Safety, you fools!!" Please, it's old, it's tired, it's inconclusive and unhelpful. So practitioners in courts and corrections are defining the agenda while legal and policy thinkers (they are definitely different people) entertain themselves with philosophical equivalents of video games. This will only get worse if we don't start thinking about alternatives to prison, especially if crime is really going back up or even if it's just the hyping of it.
We do not have the resources to double our prison populations like we did in the last such wave without permanently damaging all our other efforts to protect public safety, including other criminal justice actors and including other aspects of public safety like public health and roads and bridges. We're already too underresourced in important areas (eat any good spinach lately? still ordering steaks medium rare?). Sometimes I'd like for everyone to have the chance to sit down and just do a simple Excel spreadsheet of prison population projections and watch as the numbers pile up as the effects of the longer sentences and time served, not to mention mandatory minimums, create exponential increases in the bedspace needs. The effects of what we did in the mid-90s are just now starting to really be noticeable and won't be completely clear for another few years (and even that doesn't figure in the costs of having these older characters on public support for decades longer). The problems are engulfing corrections right now. Another round will submerge us.
So practitioners are going to be finding other options whether academics like it or not. Some of it will be early release, overt or covert, both of which even when appropriate cause public questioning of law's legitimacy, which might be a point of concern, too. Prisons will still be there, dispensing the dignity that seems more acceptable to the "please don't humiliate them in public" folks. But we'll be moving to other things, like the technocorrections I'm always on about, intruding into offenders' lives (and their families') with even more surveillance, drugs, and genetic manipulation. I'm sure that will further the course of human dignity. We really need serious discussion about punishment and human dignity as we launch into all this, involving everyone in the system, not just academics, but that discussion has to weigh the actual effect of everything we're doing and proposing against all the alternatives, for victims and offenders, for society, for our future.
Considering intent, all punishments can be restorative, they can be vindictive, they can be mindless and rote (which most of what we do has become, complete with rote little cells and ranges). For some offenders, thoughtful public shaming with an eye to restoring the community, the victims, and the offenders themselves (as some programs already do, and this includes drug offenders despite some arguments to the contrary) will result in far more dignity being maintained and even regained than sticking them in a prison or jail cell, monitoring their every location and eventually move, or filling them with drugs. It's time we started figuring out how to identify them and to discuss how we will police ourselves in the application and implementation of this growing approach. It's time we started acknowledging that and talking seriously about it without our mental schemas doing their usual jobs of blocking reality.
Of course, Doug is the one leading the way. Here's hoping he doesn't back down.