By Shankar Vedantam, WashingtonPost, November 27, 2006
The whole project was pure shamelessness. A controversial former football star, who many believe got off scot-free after killing two people, writes a book about how he might have committed the murders. It was an end zone dance in the worst possible taste. Everyone was outraged but had to concede that O.J. Simpson, once acquitted, was beyond the reach of the law.
But Simpson and his publisher, Judith Regan, were within reach of another powerful tool that is not much used in American society: shame. Facing growing outrage and scorn, News Corp. chief executive Rupert Murdoch canceled the book project last week.
For Stephanos Bibas, a law professor and former prosecutor, the saga was grounds for celebration, because it showed that shame remains a powerful tool in America.
For nearly two centuries, using shame as a weapon against wrongdoing has steadily fallen into disfavor in the United States, even as it continues to be an essential part of social discourse in more traditional societies. After the rise of penitentiaries around 1800, the idea of shaming wrongdoers was replaced by more impersonal forms of punishment such as incarceration.
But in the past decade or two, a number of scholars have become interested in the uses of shame, especially in the criminal justice system. Bibas and others think the steady erosion of shame in U.S.courts and society has proved financially costly to the country, deprived victims of a sense of vindication and kept wrongdoers from feeling remorseful.
“I was very pleasantly surprised to see shame, and the shaming of Rupert Murdoch, triumph over O.J.’s shamelessness,” Bibas said. “There are, apparently, some things that still go too far.”
Murdoch’s withdrawal of Simpson’s book and a Fox television special about it scheduled to run during the November sweeps was evidence that shame could be effective where the law was impotent, said Bibas, a law professor at the University of Pennsylvania. There was nothing illegal about the book, but the widespread media coverage of the project and the collective revulsion of the country shamed Murdoch into retreat.
Where shame was once integral to how wrongdoers were dealt with — offenders publicly whipped, put in stockades and pilloried in Colonial America — it faded out of the justice system based on the idea that offenders should not be subjected to cruel and unusual punishment. And psychotherapists, including Sigmund Freud on down, showed how shame can damage people.
Bibas doesn’t want a return to public floggings and other forms of cruelty, but he does want a way to reattach society’s voice of moral outrage to offensive behavior. When someone commits a crime nowadays, society allows offenders never to have to speak directly to victims and their families. Bibas thinks this is why prison sentences are growing longer, but packing offenders off to jail does not give victims the public acknowledgment they seek that they were harmed. Societies that use shame to censure criminals often require such acknowledgment of the offense, along with reparative ceremonies involving the families of both offender and victim.
When those techniques work, as Cornell University law professor Stephen P. Garvey explored in an analysis of shaming punishments, society saves money because offenders do not have to be locked away for eons, victims have a sense of being made whole again and punishment becomes more than retribution — social pressure from family and peers can shame wrongdoers into remorse in a way that locking them up and throwing away the key cannot.
The idea has many critics, who warn that shaming will lead to violations of dignity and to abuse and vigilante-style justice. Broadcasting the names of married men found guilty of visiting prostitutes through the mass media, as some police departments have done, can harm the men’s families as much as the offenders. And sometimes, critics say, it is less important that offenders be remorseful than it is that they be locked away and kept from hurting their victims again.
Garvey and Bibas acknowledge these concerns and say shaming punishments have limitations when it comes to violent crime. But done right, they say, creative punishments have an element not just of justice but poetic justice. One program sent men found guilty of soliciting prostitutes to a “School for Johns,” where they received lectures from former prostitutes. Neo-Nazis were made to watch the film “Schindler’s List,” listen to stories of Holocaust survivors and meet with a preacher they planned to kill. What about having auto thieves wash their victims’ cars every weekend? Or have vandals beautify their city?
No one expects that shaming punishments will always lead to a change of heart.University of Chicago law professor Eric Posner pointed out that Murdoch owns tabloids that publish “grotesque” stories such as what meals people on death row are eating, meaning that his retraction of the Simpson book may be less about remorse than damage control.
But even superficial changes driven by shaming can lead to deeper effects. When a 3-year-old hits his brother and his parents make him apologize, the apology may be utterly insincere, but repeated apologies teach the child to internalize the idea that hitting other people is wrong.
“People may do things insincerely, but social psychology teaches us that we conform our beliefs to our actions,” Bibas said. “If we have to act in a way that professes repentance and sorrow, we will eventually learn those as values.”