Law
5:55 am
Sat August 24, 2013

Some Judges Prefer Public Shaming To Prison

Originally published on Fri August 30, 2013 1:12 pm

Transcript

SCOTT SIMON, HOST:

At courthouses around the world, a statue of justice stands with a set of scales in one hand. to measure the strengths and weaknesses of the cases brought before her. In her other hand, she holds a double-edged sword symbolizing reason and justice. There are an estimated 1.5 million people in American prisons; and people of all political persuasions believe the system is bursting, and that incarceration is not a punishment that fits all crimes.

But what's the alternative? In recent years, a number of judges have ordered what amounts to public shaming instead of prison time. Punishments have included shoveling manure, being made to sleep in a dog kennel, or standing on a busy street corner wearing a sign to tell the public of the crime you committed.

Now for some, these sentences are creative and effective alternatives to prison. For others, they constitute cruel and unusual punishment. We're joined now by Jonathan Turley. He's a professor of public interest law at George Washington University Law School. Thanks very much for being with us.

JONATHAN TURLEY: Thank you.

SIMON: And we're also joined from New York by Peter Moskos, who's an associate professor in the department of law and police science at City University of New York and of course, author of the well-known book "In Defense of Flogging." Professor Moskos, thank you very much for being with us.

PETER MOSKOS: Oh, it's a pleasure.

SIMON: And let me begin with you. Do you see shaming as potentially an effective alternative to incarceration?

MOSKOS: I'm for any alternative to incarceration. I think that's the key. But the purpose of incarceration, ironically, is to make someone feel ashamed, at the end; we just have this horrible middle process to get someone there. We want people to feel shame - and see what they did was wrong. So I see no problem, really, in jumping to the end and then going right for the shame, and skipping a process that we know just harms people and makes them more criminal.

SIMON: The process that harms people and - make them more criminal is incarceration?

MOSKOS: Yeah, the idea of locking someone in a cage and somehow, magically, assuming that they'll get better, which was why we invented prisons in the first place. But we know that it doesn't work.

SIMON: Professor Turley, let me turn to you because you've been outspoken, at least against some of these examples of public shaming.

TURLEY: Well, I certainly agree with Professor Moskos about the criminal justice system. It certainly has a great number of flaws. But I can't disagree with him more about shaming punishments. These punishments have really undermined the quality and character of justice in this country. That is, it allows judges to become little Caesars that make citizens perform demeaning acts and shaming acts.

Most of these people probably would not go to jail. These are often for minor offenses. People aren't taking a murderer and saying, "I want you to bark like a dog in my courtroom, and I'll let you off for murder." These are relatively small offenses, and many of them would not result in incarceration or weekend incarceration. But what these judges do is, they impose very heavy sentences in order to force people to do what they want. You had a judge recently that forced parents to spank their child in front of them.

I don't know what system of justice that works in, but it's not a system of justice that I would want. And I also note another thing. All this business about prisons being overcrowded - we will never be able to shame our way out of prison overcrowding.

SIMON: Professor Moskos, you've written a book - kind of a provocative title - "In Defense of Flogging," which proposes one alternative. What are some others that you see?

MOSKOS: Well, I propose in the book - and it's not that I want to see people whipped, but I propose corporal punishment, Singapore-style whipping, to open people's mind. And the gambit of the book is rather simple, which is the idea of consent. If you were sentenced to five years in prison for whatever you did or didn't do, and the judge gave you the choice of 10 lashes, what would you pick?

And almost everyone would choose the lashes, but we don't allow that because we consider it cruel and unusual. But if it's better than prison, what does that say about the system we have? And I mean, the purpose of prison - there are really, three purposes. One is to rehabilitate prisoners, and we know through research that it doesn't work. The other is to hold truly dangerous, evil people away from us; and it does that very well, but there are just not that many people that we need to isolate from us. And the third is to allow society to express its disapproval, and to do that - that is, to punish someone - to do that, we have to open our minds to other forms of punishment. And I think shame is one of the better forms.

SIMON: Professor Turley, do you think one of the goals of the justice system should be to make people who were wronged by the criminal act of someone, who was convicted, feel that justice has been done?

TURLEY: Oh, certainly.

SIMON: That their pain's been accounted for, that their loss, their suffering?

TURLEY: It certainly does. There's a retributive aspect to justice. There's also a rehabilitative aspect to a prison system. Let's reform our prisons. Let's focus on that. But to say that we should go to a Singapore flogging system, is breathtaking. We did that. We were there. We had flogging posts in - around our cities and towns. It was an extremely dark and medieval period.

For us to even consider doing that shows that we've lost touch with something very basic - not about our legal system but about ourselves. That punishment that we impose through a federal court, or a state court, is a reflection on who we are, not on who that person is.

MOSKOS: You know, Professor Turley and I agree, in spirit, on a lot of what we're saying, ironically. My problem with prison reformers - and I support them - is, it doesn't work. Prison reformers have been talking about reforming prisons for four decades now while the problem's only gotten worse. Punishment should be part of the criminal justice system. The question is how we punish, and there's got to be a better way to do it than prison.

SIMON: Professor Turley, can you envision alternatives to prison that you would find consistent with just and humane practice?

TURLEY: Not in the way that I think Professor Moskos is referring to it. The shaming punishments that we have seen are comical. They are ludicrous. These are judges that already have good alternatives. We have home incarcerations with electronic bracelets that are expanding every single day...

MOSKOS: And that is a good alternative.

TURLEY: Those community service sentences are becoming very, very common. And so we can have alternatives. What we can't do is to create this wildcard. It is a corruptive element in our judicial system. And from what we've seen from judges is, it's completely corrupting in terms of their own judgment and their own conduct. They get worse and worse, to get into the headlines.

SIMON: Gentlemen, thank you both very much. Jonathan Turley is a professor of public interest law at the George Washington University Law School. Thank you.

TURLEY: Thank you.

SIMON: And Peter Moskos, an associate professor in the department of law and police science at City University of New York. Thank you.

MOSKOS: Thank you.

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SIMON: And you're listening to NPR News.

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