A recent wave of interest in shaming penalties raises questions about the ways in which criminal punishments deter people from committing crimes. The traditional economic theory of crime assumes that punishment deters because it reduces utility (Becker 1968), but it says nothing about how punishment re-duces utility beyond the obvious points that fines reduce wealth and that prison terms reduce the opportunities to earn wealth and to spend it on pre-ferred goods. Advocates of shaming penalties argue that public humiliation of the offender will, in some circumstances, deter criminal behavior in a highly cost-effective manner. Those who commit minor crimes, like paying for sex or drinking in public, should be required to wear signs proclaiming their of-fense, or to place bumper stickers on their cars, or to stand in a public place for a time, or to wear distinctive clothing; and those who commit serious crimes should be required to spend time in prison, rather than paying a fine, because imprisonment stigmatizes and paying a fine does not. The point of publicizing the crime in these ways is not so much to persuade the public that criminal behavior will be punished, or to inform it about the penalties for cer-tain crimes, or to inform it about which behavior is criminal. All of these goals are consistent with the traditional model or can easily be absorbed by it.
The point of publicizing the crime, according to the shaming advocates, is to cause the public to avoid or ostracize the offender. The point is to shame (Kahan 1996, 1997).
Shaming penalties have a long history. Looking around the world and back into time, one can compile a very long list of them, which would include the following: flogging, branding, tattooing, distinctive clothing requirements
like the famous scarlet letter, public apology, amputation of limbs, hideous ex-ecution, confinement in the stocks, blinding, and ritual humiliation, such as a mock beheading (Spierenburg 1995, pp. 53–54). Notice that many of these punishments are clearly designed to communicate the offender’s status to the public. Others, such as flogging, can be performed outside of public view and often were, but they were also often performed in public view. Public flogging was a different punishment from private flogging, just as public execution was different from private execution. Contemporaries often referred to the sham-ing effect of these punishments, and this suggests that the punitive impact re-sulted in part from the fact that people would treat the offender, or his family, differently after seeing him shamed.
Advocates of shaming penalties have not argued for bringing back the pil-lory, but they do argue that lesser forms of shaming are desirable punish-ments, because they are cheap and they have a powerful deterrent effect. The average member of the middle class would be less likely to buy sex from a prostitute if the punishment were public exposure rather than a fine. The av-erage white collar criminal fears the shame of a prison term more than a fine, which is not so shameful. These arguments rest on the assumption that peo-ple care deeply about their reputations; therefore, the government can exploit this concern and the fact that reputations do matter in daily life by destroying people’s reputations rather than punishing them in a traditional way.
These arguments provide an opportunity to examine the implications of the cooperation model for criminal law.
A Model of Shaming
Although shaming penalties can be imposed by the government, shaming is essentially a nonlegal sanction. Shaming occurs when people draw attention to the undesirable traits or behaviors of another person, with the result that the target is seen as a less desirable cooperative partner. People might simply avoid the target thereafter, or not trust him, or trust him less than before; or they might taunt or scold the target. But taunting and scolding are effective only if backed up by the prospect of real ostracism. The sting comes from the expectation that because one has developed a reputation as a bad and unreli-able person, one will lose future opportunities which have significant value.
The act of shaming a person, then, should be distinguished from a rela-tively passive refusal to deal with a person who has developed a bad reputa-tion. Shaming a person is an entrepreneurial activity: it requires time and ef-fort, and the reward is uncertain. It takes time and effort to talk to members of one’s community and to argue in a persuasive way that the victim has en-gaged in bad behavior. And this behavior involves risk. The target of the
shaming, and his friends and family, might retaliate against the speaker by taking violent action against him or by spreading unflattering rumors about him. If the shame entrepreneur does not persuade his audience, they may conclude that he is a busybody or a deceiver, a bad type who ought to be shunned. For these reasons, shaming a person is usually understood as a signal by the speaker that he belongs to the good type.
The first person to engage in public shaming may have inside information or he may have the most to gain by signaling that he belongs to the good type.
Once this shame entrepreneur sends the signal, listeners must respond. If they believe him, they may respond by merely shunning the target of the shaming.
But they may also seize the opportunity to signal as well. An individual might fear that if he does not engage in an act of public shaming, people may believe that the signal is too costly for him. The signal could be costly either because this individual values his interactions with the bad type, or because he dis-counts the future highly. Both possibilities will diminish his reputation. As more people signal their type by shaming the victim, the incentives to join in will increase, because of the fear that observers will assume that the dwindling few who do not join are the worst people of all.
It is worth stressing that the model provides two reasons why a third person will avoid dealing with someone who has been shamed. (1) The deviant has been revealed as a bad cooperative partner; the third person would rather en-ter a relationship with someone else whose reputation is unspoiled. (2) The third person fears that if he fails to sanction the person who has been called a cheater, others will sanction him (the third person) by avoiding him. That is, the third person seeks to signal that he belongs to the good type by participat-ing in the sanctionparticipat-ing. Only if people are motivated by the second reason will there be a cascade, resulting in the extreme public humiliation of the deviant and even his lynching at the hands of a mob. The mob is a collective disaster produced by individually rational behavior, much like a bank run.
Shaming Penalties within Subcommunities
Consider a subcommunity that is regulated by a legal system controlled by the members of a larger, dominant community. Some members of the sub-community engage in deviant behavior that is not deterred by the law. The law might not deter this behavior because the kind of deviant behavior is dif-ficult to prove in a court, or because police officers and other legal officials fo-cus their energies elsewhere. Because the law provides no deterrent, any deter-rent must come informally from the subcommunity. At the same time, it may be difficult for members of the subcommunity to erect and enforce a law-like system, which would involve compulsion. Although the police might not
bother to arrest prostitutes in the subcommunity, they might arrest members of the subcommunity who try to punish the prostitutes, or who form vigi-lante groups that enforce the law in a systematic way.
Under these circumstances a cohesive subcommunity may or may not be able to maintain order. Some individuals may expose and punish deviants in order to signal their type, and if others respond either by actively shaming these deviants or passively avoiding them, it is possible that predatory behav-ior will be deterred. Informal sanctions might include scolding the deviant, which may be intrinsically painful or humiliating but also is a warning that more serious punishment will come if behavior does not change; harassing the deviant, perhaps physically, but in a minor way that would not draw the at-tention of the criminal justice authorities; ostracizing the deviant, which would include refusing to employ or work for or socialize with or do business with the deviant; and even murdering the deviant or harming him or his fam-ily. Hawthorne (1981, p. 51) says of the effect of the scarlet letter on his hero-ine—“It had the effect of a spell, taking her out of the ordinary relations with humanity, and enclosing her in a sphere by herself.” None of this is foreor-dained, of course. Two plausible alternatives to this decentralized system of enforcement are, first, that one or a few people accumulate power rapidly, and eventually, in order to consolidate and protect their gains, keep the peace; and second, that people rely heavily on their families for protection. The first al-ternative is familiar from the phenomena of organized crime and gangs,1the second is familiar from the history of feuds among families under conditions of limited government.
The advantages of this system of informal sanctioning are that it exploits people’s ability to monitor each other, their networks of communication, and their desire to avoid people who are low types.2The marginal cost of monitor-ing and communicatmonitor-ing is trivial, given that people already must constantly interact with each other for social and business reasons. Accordingly, informal sanctioning does not require large capital investments in police, judges, and prisons (which may be out of the question when the criminal justice system is operated by an unsympathetic government). These advantages are powerful enough that informal systems of social control always coexist with formal criminal justice systems, because the criminal justice system does not deter criminal behavior that is difficult for authorities to detect or punish, or that occurs within subcommunities that have little political influence.3
But the disadvantages of informal sanctioning are also significant. A famil-iar problem is that the informal system does not work when subcommunities are large and the value of people’s outside opportunities are high. Another problem is that the system does not exploit economies of specialization. These problems create significant pathologies.
Pathologies of Shaming
Optimal deterrence occurs when the community imposes a sanction on the offender that injures him by an amount equal to the expected cost that the act imposes on others. If a store loses $100 from shoplifting, then the punish-ment should equal $100 divided by the probability of detection.
Suppose an individual learns that someone is a thief. The person will ex-pose the thief if the gains exceed the costs. The costs include the possibility of retaliation from the thief, plus the time and expense of revealing the thief ’s behavior. The gains include the possibility that others will regard the individ-ual as a good cooperative partner since he has incurred the cost of exposing the thief. It is clear that there is no correlation between the private gain from exposing the thief and the social gain. The individual’s decision whether to expose the thief will depend not on the cost imposed by the thief on the vic-tim, but on such things as whether the individual’s reputation will be en-hanced; but this will depend on a variety of extraneous factors, including whether the individual’s job gives him returns from having a cooperative reputation, which is more the case if he is a politician or businessman than if he is a craftsman or novelist, and on people’s prior beliefs about the distribu-tion of types.
Further, the cost to the thief of being exposed is uncorrelated to the social cost of his behavior. The thief ’s reputation might matter a lot (if he is a con artist or shoplifter) or not at all (if he is a cat burglar). Exposure matters less if others respond by ostracizing the thief than if others respond by beating him up. But whether the other members of the community decide to beat up the thief or ostracize him will depend on their own outside opportunities and how important it is for them to show each other that they are coopera-tive types.
If it does not matter much—as might be the case during times of tranquil-lity—people might not punish the thief. A reputation as a cooperative type does not exceed the costs. But sometimes reputations matter a lot. During times of uncertainty and tension, people will punish the thief just to show that they are cooperative types, and as the good types struggle to distinguish themselves from the bad types, the punishment will escalate. This accounts for witch hunts and other extreme, and apparently irrational, communal pun-ishments, which I will discuss in a later section. Everyone punishes the fender (by ostracizing him), despite the triviality of his offense, because his of-fense serves as opportunity for everyone to signal his reliability.
Shaming sometimes appears functional. The group ostracizes the wife-beater, and so husbands refrain from mistreating wives for fear of a similar sanction. This is why some commentators believe that shaming would be a
desirable form of punishment. There is no reason, however, to believe that the resulting level of ostracism provides the proper level of deterrence.
A historical example will make this point clear. As mentioned in the last chapter, charivari is a form of communal shaming that has existed in a huge variety of cultures and historical periods, and has disappeared only recently.
Charivari has always been directed at sexual misbehavior, such as spousal abuse and quarreling, that might plausibly be thought a form of cheating on a collective endeavor. But charivari has also been directed at simply unusual be-havior, such as marriages between people of different ages, interracial or -eth-nic or -religious marriages, idiosyncratic sexual practices, and people who hold unpopular opinions. So the fact that a behavior annoys people or threat-ens public order or manifests shirking may make it salient enough to enable people to draw attention to themselves when they punish the victims; but that is not a necessary condition. The behavior may simply be unusual: that, too, makes it salient. If people join in a charivari to show that they have low dis-count rates, all that matters is that they incur a cost; it does not matter whether their behavior produces public gains. Their private good (an en-hanced reputation) diverges from whatever public good, if any, might be pro-duced through deterrence of certain behaviors.
Mob rule is a similar phenomenon. Although mob action might result in the death of the victim, not his shaming, the logic is the same. It is said that people join mobs because the anonymity of the mob allows them to avoid re-sponsibility for the evil that the mob performs. But what reason is there to suppose that people enjoy committing evil? The reason that people join mobs is that it is better to be a member of a mob than its target. True, fear of the mob might deter people from committing crimes, but there is no reason to believe that the mob provides the proper level of deterrence, especially as the mob’s energy seems to be exhausted when blood is spilled, whether or not the victim is guilty (Wyatt-Brown 1982).
This is true because the chief motive for shaming is to enhance reputation, not to do justice. Thus, as long as everyone else is attacking an innocent per-son, it is better to join in than to risk being thought sympathetic to the mob’s enemies. Shaming is also directed at people who are innocent but connected to the offense in some way. Thus, shaming frequently targets the spouse and children of the wrongdoer, as well as the wrongdoer himself. The charivari would often shame the cuckold as much as the adulterer (Wyatt-Brown 1982, p. 450). People have always shamed the illegitimate child in addition to the parents. As we will see in Chapter 8, “punishment” of or discrimination against minorities is a common form of signaling—so the mob will frequently attack members of a minority when a crime is committed, regardless of whether any evidence suggests that they committed the crime.
I am not making an argument about variance. It is true that mob rule will display higher variance than the rule of law enforced by a professional justice system, and therefore risk-averse citizens will prefer the latter, if all else is equal. But my main argument is that even the “average” shaming punishment is not likely to produce the optimal level of deterrence at the margin.
Shaming Penalties Imposed by the Government
Since I have discussed shaming penalties as a means of community enforce-ment, it might seem odd now to talk about the government imposing sham-ing penalties. But when I talk of government shamsham-ing penalties, I mean pun-ishments imposed by the government in order to facilitate ostracism by the community. To see why this makes sense, distinguish between detection and enforcement. In earlier sections it was assumed that members of the commu-nity both detect the deviant (that is, observe his deviant action) and enforce the punishment (for example, ostracize the deviant). These actions imply communication; otherwise, being ostracized does not injure the deviant much nor detection help the community. When the government uses shaming pen-alties, the two elements of shaming are divided between the government and the community. The government detects and communicates (through the shaming penalty), and members of the community enforce by avoiding the offender and by encouraging each other to avoid the offender.
This division of labor might seem to make sense if the government has a comparative advantage in detecting and communicating deviations, while the community has a comparative advantage in punishment. This is certainly plausible, at least for some kinds of deviant behavior. Perhaps only the govern-ment can discover in a cost-effective manner which schoolchildren are carry-ing guns, because the cheapest way to do this is by puttcarry-ing metal detectors in the doorways of schools, something which community members cannot do through informal cooperation. But the government cannot punish the of-fenders effectively, because—let us say—schoolchildren are so emotionally traumatized by prison that prison ruins the possibility that they can become productive citizens, and less traumatizing punishments are not practical for the government. Community members can effectively punish gun-toting children by scolding them, throwing them out of their stores and movie
This division of labor might seem to make sense if the government has a comparative advantage in detecting and communicating deviations, while the community has a comparative advantage in punishment. This is certainly plausible, at least for some kinds of deviant behavior. Perhaps only the govern-ment can discover in a cost-effective manner which schoolchildren are carry-ing guns, because the cheapest way to do this is by puttcarry-ing metal detectors in the doorways of schools, something which community members cannot do through informal cooperation. But the government cannot punish the of-fenders effectively, because—let us say—schoolchildren are so emotionally traumatized by prison that prison ruins the possibility that they can become productive citizens, and less traumatizing punishments are not practical for the government. Community members can effectively punish gun-toting children by scolding them, throwing them out of their stores and movie