Notes From Babel

Law, Society, and Shame

with 2 comments

My hometown of Huntington Beach is ranked top in the state of California for alcohol-related traffic deaths.  Recently, the city council considered putting repeat offenders on the HBPD’s Facebook site with the apparent hope of shaming them into sobriety.  (The council voted down the proposal last night.)  Though I was and still am ambivalent about the idea,* I was surprised by the hostility many expressed toward the proposal.  Several folks expressed the sentiment that the punishment for drunk driving, or any crime for that matter, is dictated by the penal code, and cities may not add more than what the law already provides.  This article sums up the objections nicely:

Dwyer may have the best of intentions, but his proposal clearly goes too far. Yes, drunk driving is morally reprehensible, and those who do it should be punished according to the law. But they should also be given the opportunity to learn from their mistakes, change their ways, and become contributing members of society. If their face is immortalized in Facebook infamy, that recovery process would become significantly more challenging. Dwyer shouldn’t let the court of public opinion interfere with the court of law, because, as Lt. Reinhart said, “Law enforcement is not about public shaming.”

The suggestion that the proposal would “interfere with the court of law” is hyperbole.  But the sentiment that “the court of public opinion” should count for nothing radically misconceives the relationship between law and society.  Criminal laws and punishments are based on values held by society.  But activities prohibited by law are not the only ones a society might condemn, and criminal punishments are not the only ones society might elect to mete out.  Shame, for example, is important because it reinforces the notion that actions are not merely wrong because they result in a deprivation of liberty due to criminal punishment, but because they are evil and antisocial.  Likewise, enduring a criminal sentence is not the only mode of redemption; communities can offer acceptance and forgiveness and opportunity to rehabilitated individuals who have proven their good character.

Engaging in certain wrongful behavior is antisocial, and the function of shame in society is to root out and eliminate such behavior.  Indeed, the behavior that we choose to criminalize tends to be the behavior that is the most harmful, the most antisocial.  It is absurd to suggest that, by criminalizing such behavior, society loses its moral right to characterize the behavior as shameful.  It would be just as absurd as suggesting that, by defining and enforcing a criminal penalty against a convict, society loses its moral right to later characterize the convict as rehabilitated and forgiven.

I’d be willing to bet that most of the folks who are against the Huntington Beach proposal are also the sort who believe that government should stay out of the business of legislating morals.  The oddity, assuming I’m right, is that if it is supposed that law ought not deal in the sphere of morality and shame, and if it is also supposed that communities ought not deal in shame where the law provides a punishment, then the result is to have removed shame from our society altogether.  This, I think, would be a very bad thing.

* My thought is such a law obviously must be confined to those convicted of, not merely arrested for or charged with, DUIs, and that it must also be confined to repeated convictions, probably at least three, or perhaps two within an 18 or 24 month period.

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Written by Tim Kowal

January 19, 2011 at 11:23 pm

2 Responses

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  1. […] at Notes From Babel, Tim Kowal offers his take, for which I have considerable sympathy. A key quote: Shame, for example, is important because it […]

  2. Enforcement of the law, and the resultant penalty, are known entities, they are specific. Morality and shame, et al, are held inside the confines of our individual psyches. The resulting mental punishment would be different for each individual, and could range, in the suggested scenario, from complete ambivalence, to mind crippling humiliation. And, given that the law cannot be everywhere, and certainly does not catch each and every law breaker on the road, as we all know… does the one who is indeed caught, suffer endlessly the indignity that society would heap on him? This, while those who also break the law, but the law hasn’t caught up with them, continue to threaten our safety?
    I just received a posting on my Facebook showing the photo of a known sex offender, with lots of ‘offense appropriate’ comments following it. Society now has this venue to vent and expose, and that’s accepted now, but should our government agencies do this also? Remember, as a society we do have punitive actions in place. To publicly humiliate, we would have to ponder as a society whether we want to be responsible for what a violator might self impose as his punishment, the judge being the power of his own mind and sense of shame.
    As a body of people we have never really come to a conclusion about capital punishment, as we are basically humane, and feel that God has the last word…

    Kathi Kowal

    January 20, 2011 at 12:08 pm


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