The Right in the USA wants to return shame to criminal justice:
***** The New York Times June 3, 2001, Sunday, Late Edition - Final SECTION: Section 4; Page 5; Column 1; Week in Review Desk HEADLINE: The Nation; Justice as a Morality Play That Ends With Shame BYLINE: By DEAN E. MURPHY
IN Nathaniel Hawthorne's "The Scarlet Letter," the adulterous Hester Prynne was required to wear the letter A on her chest so that all would know of her unforgivable sin.
"Shame, despair, solitude!" Mr. Hawthorne wrote.
Modern America may seem far removed from Puritan New England, but the idea that punishment should be based on public humiliation has never disappeared. If anything, it seems to be resurgent.
In Corpus Christi, Tex., Judge J. Manuel Banales recently ordered registered sex criminals to post notices on their homes and automobiles warning the public of their crimes. The result: One offender attempted suicide, two were evicted from their homes and others said their property had been vandalized.
Another Texan, Judge Ted Poe of the Harris County District Court in Houston, helped write legislation in 1999 allowing Texas judges in probation cases to order "public notice" of a crime in the county where it was committed.
Judge Poe's 300 or so "public notice" sentences have ranged from requiring a man who beat his wife to apologize on the steps of City Hall to ordering a drunken driver to parade in front of a bar with the sign, "I killed two people while driving drunk."
"Most of us care about what people think of us," Judge Poe said. 'If we are held up to public ridicule, we don't like it and two things will happen. We will change our conduct and our attitudes. It started in New England in the colonial days." Shades of Hawthorne.
Bringing morality into the courts in this way could have far-reaching implications for how America administers and regards justice. Some of the most serious concerns center on the separation of church and state and whether shaming is actually religion-in-the-courtroom in disguise.
That is what worries Nadine Strossen, president of the American Civil Liberties Union. Ms. Strossen says the move toward shame-based punishment reflects a broader effort by religious conservatives to impose their values on the political and legal systems. As examples, she cites attacks on lesbian and gay rights and the intense lobbying in Washington for judicial nominees with strongly held religious beliefs.
"I see a real danger," Ms. Strossen said, "not only for the First Amendment values of separation of church and state but for all kinds of other civil liberties, just because they are not consistent with those religious beliefs."
In some cases, judges have actually ordered offenders to attend church. In one instance in Lancaster, Tex., a judge required a 14-year-old boy, charged with disorderly conduct, to attend Sunday school. In Lake Charles, La., Judge Thomas P. Quirk sent hundreds of offenders to church, in lieu of fines or jail time, until the A.C.L.U. intervened in 1994.
In the case of Judge Poe in Houston, some critics suggest his religious beliefs are difficult to separate from his legal ones. Others say that public punishments have created an irresistible temptation for grandstanding, especially by judges who are elected, have political ambitions or preside in conservative communities.
"In Judge Poe we have a judge who is a born-again Christian, a lay preacher, devoutly religious and, as all judges in Texas, elected," said Edward A. Mallett, a Houston lawyer who is president of the National Association of Criminal Defense Lawyers. Mr. Mallett says Judge Poe has memorized the phone numbers of local reporters so his rulings won't go unnoticed.
Self-publicizing judges are not, however, providing the underlying impetus to the shame-based trend. That comes from a much more serious source: society's determination to control the threat presented by sex offenders. This gave rise to the so-called Megan's laws (named for a 7-year-old New Jersey girl who was raped and killed in her neighborhood), which vary by state, but generally provide for alerting residents to the presence of sex criminals.
Megan's laws encourage the view among many people, including some judges, that criminals -- even those who have served their time -- should not be anonymous.
"We all came to realize it is anonymity that breeds more crime," said Marc Klaas, an advocate for the changes, whose daughter, Polly, was kidnapped and murdered in California in 1993.
Whether this sort of punishment affects criminal behavior is a matter of fierce dispute and statistical uncertainty. Nonetheless, shame-inspired punishment seems to be everywhere these days. In Kansas City, Mo., city officials broadcast a regular television show, popularly known as John TV, that features photographs of people arrested for crimes related to prostitution. In Arizona, bookings at the Maricopa County jail are taped and posted on the Internet for anyone to see. In Pojoaque, N.M., a liquor store advertises the names of bad-check writers on a huge marquee.
For practical and legal reasons, there has been no rush to challenge the shame-based sentences. In most cases, they are offered as an alternative to prison, which removes the incentive to make an issue of it. Judges also have broad discretion to impose conditions at sentencing, so defense lawyers say it would be difficult to prove abuse. And on constitutional grounds, the Eighth Amendment protection against cruel and unusual punishment sets a high threshold.
Some legal scholars say criminal justice has always been moralistic at its core. Akhil Amar, a Yale Law School professor of constitutional law, said the tradition of public trials was developed not only to protect the rights of the accused but to expose them to public scrutiny. Even the word penitentiary, he noted, derives from penitence.
"The criminal justice system is from start to finish a morality play," Professor Amar said. The danger of shame-based sentences, he said, lies not in infusion of more morality but in its origin and motivation. "We need to make sure that morality doesn't become an official promulgation of government or religion," he said.
GRAPHIC: Drawing: Being confined in a pilory was one punishment that also subjected a convict to public scorn. (The New York Times) *****
Can the USA ever become modern?
Yoshie