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Judicial CP - February 1996

Washington Post, 1 February 1996

The Sting of Shame

By George F. Will

A New Hampshire state legislator says of teenage vandals, "These little turkeys have got total contempt for us, and it's time to do something." His legislation would authorize public, bare-bottom spanking, a combination of corporal punishment and shaming -- degradation to lower the offender's social status.

press cuttingIn 1972 Delaware became the last state to abolish corporal punishment of criminals. Most states abandoned such punishments almost 150 years ago, for reasons explained by Prof. Dan M. Kahan of the University of Chicago Law School in an essay to be published in the spring issue of that school's Law Review. But he also explains why Americans are, and ought to be, increasingly interested in punishment by shaming. Such punishment uses the infliction of reputational harm to deter crime and to perform an expressive function.

Around America various jurisdictions are punishing with stigmatizing publicity (publishing in newspapers or on billboards or broadcasting the names of drug users, drunk drivers, or men who solicit prostitutes or are delinquent in child support); with actual stigmatization (requiring persons convicted of drunk driving to display license plates or bumper stickers announcing the conviction and requiring a woman to wear a sign reading "I am a convicted child molester"); with self-debasement (sentencing a slumlord to house arrest in one of his rat-infested tenements and permitting victims of burglars to enter the burglars' homes and remove items of their choosing); with contrition ceremonies (requiring juvenile offenders to apologize while on their hands and knees).

In "What Do Alternative Sanctions Mean?" Kahan argues that such penalties can be efficacious enrichments of the criminal law's expressive vocabulary. He believes America relies too heavily on imprisonment, which is extraordinarily expensive and may not be more effective than shaming punishments at deterring criminal actions or preventing recidivism.

There are many ways to make criminals uncomfortable besides deprivation of liberty. And punishment should do more than make offenders suffer; the criminal law's expressive function is to articulate society's moral condemnation. Actions do not always speak louder than words, but they always speak -- always have meaning. And the act of punishing by shaming is a powerful means of shaping social preferences by instilling in citizens an aversion to certain kinds of prohibited behavior.

For most violent offenses, incarceration may be the only proper punishment. But most of America's inmates were not convicted of violent crimes. Corporal punishment is an inadequate substitute for imprisonment because, Kahan says, of "expressive connotations" deriving from its association with slavery and other hierarchical relationships, as between kings and subjects.

However, corporal punishment became extinct not just because democratization made American sensibilities acutely uncomfortable with those connotations. Shame, even more than the physical pain of the lash and the stocks, was the salient ingredient in corporal punishment. But as communities grew and became more impersonal, the loosening of community bonds lessened the sting of shame.

Not only revulsion toward corporal punishment but faith in the "science," as it was called, of rehabilitation produced America's reliance on imprisonment. And shame -- for example, allowing the public to view prisoners at work -- occasionally was an additive of incarceration. It is so today with the revival of chain gangs.

Recent alternatives to imprisonment have included fines and sentencing to community service. However, both are inadequately expressive of condemnation. Fines condemn ambivalently because they seem to put a price on behavior rather than proscribe it. The dissonance in community-service sentences derives from the fact that they fail to say something true, that the offenders deserve severe condemnation, and that they say something false, that community service, an admirable activity that many people perform for pleasure and honor, is a suitable way to signify a criminal's disgrace.

Sentences that shame not only do reputational harm and lower self-esteem, their consequences can include serious financial hardship. And Kahan argues: "The breakdown of pervasive community ties at the onset of the Industrial Revolution may have vitiated the stake that many individuals had in social status; but the proliferation of new civic and professional communities -- combined with the advent of new technologies for disseminating information -- have at least partially restored it for many others."

Today America has 519 people imprisoned for every 100,000 citizens. The figures for Mexico and Japan are 97 and 36 respectively. America needs all the prison cells it has and will need more. But policies of indiscriminate incarceration will break states' budgets: The annual cost of incarceration is upward of $20,000 per prisoner and $69,000 for prisoners over age 60. It would be a shame to neglect cheaper and effective alternatives.

Evening Standard, London, 5 February 1996

Graffiti vandals face shame of public flogging

from Laurette Ziemer in New York

PUBLIC flogging administered by a local sheriff may soon be introduced as a way to shame young vandals into remorse.

Politicians in rural New Hampshire have proposed that convicted teenagers be subjected to bare-bottomed floggings.

A Superior Court jury would decide on the number of whacks and the event would be publicised in local papers.

"I'm not talking about caning them Singapore-style," said Republican Representative Philip Cobbin.

"This is more of a public shaming device to teach kids there are consequences to their actions.

"Some people might say it's cruel, nasty and mean to have the sheriff paddle some kid's bottom, but spanking has never done anybody a tremendous amount of harm if done properly," said the bill's co-sponsor, Richard Kennedy.

He noted the state Supreme Court upheld spanking as legitimate punishment.

Supporters of the bill said they were driven to act by frustration over increasing juvenile crime, capped by increasing amounts of graffiti drawn on memorials.

Currently, young vandals face punishments ranging from restitution and counselling to juvenile detention.

Claire Ebel of the New Hampshire Civil Liberties Union said: "Spanking would be a cruel and unusual punishment.

"What's more, publicly baring the youngsters' buttocks infringes on their privacy rights."

Far Eastern Economic Review, Hong Kong, 29 February 1996

United States

Spare the Rod

States drop measures to emulate Singapore

By Nigel Holloway in Washington

FOR a time, teenager Michael Fay was a household name in the United States. His punishment two years ago for vandalism in Singapore -- four strokes of the rattan cane -- caused a furore in America after President Bill Clinton pleaded that he be treated less harshly.

cuttingThe thing that riled many Americans was not the harshness of the punishment, but the misguidedness of the American president. What right did he have to criticize Singapore's legal system, they asked. Instead, America could take a leaf out of the city state's book to combat crime.

Since then, lawmakers in at least seven states from New York to California have tried to copy Singapore's style of punishment for vandalism and all of their attempts have withered on the vine. The latest of these was in California, where state assemblyman Mickey Conroy, a former marine, attempted to pass a law that would have let judges order a spanking of graffiti artists by their parents in court. The chosen tool of execution: A wooden object that looks a little like a flattened baseball bat, called a paddle.

The measure, which Conroy said was inspired by the treatment meted out to offenders in Singapore, won 13 votes less than the 41 needed for passage when it came before the California assembly on January 31. Conroy maintained that a good paddling could help to reform troubled children before they fell into a life of lawlessness. Nonsense, countered one foe of the measure in the assembly: "Violence begets violence."

A similar fate befell a legislative initiative in Tennessee, which called for public caning "on the courthouse steps" for vandals, and in New York where there was an attempt to introduce paddling for graffiti crimes. If Fay-type treatment is supposed to be so popular in the U.S., why have none of these initiatives succeeded?

The answer, says Dan Kahan, a law professor at the University of Chicago, is that Americans believe that corporal punishment may be appropriate for Singapore but not for America. And he cites three opinion polls taken in the U.S. when the controversy was at its height in April 1994, which showed that Americans by a wide margin opposed the use of caning and other forms of corporal punishment in cases such as Fay's. In one of the polls, however, 49% of respondents approved of the punishment Fay received in Singapore, against 48% who disapproved.

In Kahan's view, corporal punishment conjures up unsavoury connotations for Americans of slavery and of authoritarian regimes, such as those in the Middle Eastern countries where thieves' hands are amputated. "It's really pointless to think of reintroducing corporal punishment in this country -- it's just not politically viable," Kahan says. In 1972, Delaware became the last state to abolish corporal punishment for criminals, although 23 states still allow it in public schools.

Don Cabana, professor of criminal justice at the University of Southern Mississippi, says the reintroduction of corporal punishment for some crimes would have little lasting effect on the crime rate. "All those people who applauded Singapore, see how they'd like it if it was their son whose butt was whipped on the courthouse steps," he says.

So why is the crime rate so much lower in Singapore? "It's more than the existence of corporal punishment," says Nadine Block, director of the Centre for Effective Discipline in Ohio. "In Singapore, there's a whole orientation towards decided what is acceptable behaviour. Here, few agree on what is acceptable."

That's one reason why Singapore's social harmony would be hard to replicate in obstreperous America. And although caning may not be the answer for social ills in the U.S., there's much that Americans continue to admire in Asian values, says David Hitchcock, the author of a December 1994 study of the subject, Asian Values and the U.S.: How Much Conflict? published by the Centre for Strategic and International Studies in Washington.

"What Americans can say about Asian values is that Asia is doing pretty well in the sense that it has high economic growth, a low crime rate and strong family cohesiveness," he says. And that is something the whole world would like to emulate.

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