A. Ineffectiveness as a Deterrent
The true effectiveness of shaming punishments, either for adults or for juveniles, is unknown, and yet judges continue to use shame to punish both groups. Scholars have identified multiple reasons for shaming's popularity among judges, most notably shaming's potential effect as a deterrent. The potential for shaming sanctions to increase[] the costs associated with the arguably serves to prevent individuals from committing future criminal acts. The fear of similar punishment being imposed on others may deter witnesses to the shaming punishment may from committing criminal offenses Nevertheless, scholars are split on whether shaming sanctions are likely to be an effective deterrent, based mostly on theoretical accounts supported by selected anecdotal
Drawing upon sociological and anthropological research, Toni Massaro argues that dominant American culture and traditions fail to reflect the level of interdependence, strong norm cohesion, and robust communitarianism that is present in cultures where shaming operates as an effective deterrent. Essentially, the American cultural landscape does not embody the community norms necessary for people to witness the shaming punishments and integrate them into their rational thought processes. Shaming, according to Massaro, is successful in communities that publically announce their moral and behavioral expectations and that have closer-knit, less autonomous personal relationships; America's hands-off relationships that lack personal ties fail to meet these requirements.
John Braithwaite argues that shame can serve as an effective deterrent by implementing social control in two ways. First, because individuals generally crave social approval of significant others, they will be less likely to engage in criminal conduct if they face shame for their actions. Second, when individuals participate in the shaming of another, they often internalize the shame; internalization results in a pang of conscience that ultimately serves as an internal control independent of an external societal punishment. Braithwaite recognizes that the United States does not embody the traditional cultural norms that make shaming successful, but unlike Massaro, he is optimistic about its deterrent potential as compared to sanctions that do not denounce the offender.
Dan Kahan, initially a proponent of shaming for its potential deterrent effects, recently recanted his previous support for the sanction's ability to serve penological goals. In his recant, Kahan ultimately concludes that shame is afflicted with a social meaning handicap that, as a practical political matter, makes it an unacceptable alternative sanction for a significant and influential segment of our Kahan further argues that because shaming sanctions are deeply partisan, unlike the pluralistic appeal of incarceration, they cannot work effectively. Critics disagree with Kahan's new arguments, however, and argue he lacks empirical support for claiming partisanship and for turning to programs of restorative justice as an acceptable alternative to incarceration. Regardless of these scholars' arguments, the true effectiveness of shame as a deterrent remains undetermined.
Moreover, despite the debate over the deterrent effect of shaming sanctions imposed on adults, few scholars have considered shaming's effect on juveniles. As one commentator points out, for the cost-benefit argument propounded by Braithwaite to succeed, children would actually have to engage in a cost-benefit analysis before acting. This expectation is questionable because children and young adults rarely consider the consequences of their behavior before acting.
The dissenting Justices in In re Stanford recognized the cognitive limitations of juveniles, citing the case law, amicus briefs, and conclusions of a task force on juvenile sentencing policy. Justice Stevens's dissent notes: Adolescents are more vulnerable, more impulsive, and less self-disciplined than adults, and are without the same capacity to control their conduct and to think in long-range Scientific evidence has also shown that because youths' brains continue to develop throughout adolescence, they cannot reason like adults. Juveniles do not anticipate consequences and fail to minimize danger by exhibiting poor impulse control when presented with a variety of options. Therefore, a shaming punishment may fail as both a general and a specific deterrent. If youths do not think long-term, seeing a peer subjected to a shaming punishment is unlikely to affect their future conduct and will not generally deter them from committing future offenses. Furthermore, if juveniles cannot exercise impulse control and reasoned decision-making, a shaming punishment may not serve as an individual deterrent.
Given the scientific evidence demonstrating juveniles' lack of cognitive capabilities to engage in rational decision-making processes, it is unclear that shaming punishments will be effective deterrents for them. Anecdotal evidence suggests that these sanctions might serve as an effective individual deterrent, as several of the individuals sentenced to these punishments noted their remorse. Other offenders, however, like the young milk thief described at the beginning of this Article, were clearly not deterred.
It is also unclear whether a juvenile's conduct requires the same deterrence considerations as an adult's conduct. In 1988, a plurality of the Supreme Court held that irresponsible juvenile conduct is not as morally reprehensible as that of an Thus, if the conduct does not rise to a level commensurate of adult offenses, the sentence not need be the equivalent of an adult sanction. Although both the adult and juvenile systems seek rehabilitation as a goal, the logic behind a shaming sanction's potential to rehabilitate and deter adults is not present when dealing with juveniles.
