To name and shame?

For any liberal-minded citizen there is hardly anything more galling than the discrepancy between the way we first react to reports of injustice and our willingness to concede the possibility of redemption. Hearing about a callous murder, we think about the death sentence. Reading about a brutal rape, nothing less than capital punishment will do.

As the initial rage cools and emotional distance exerts its inevitability, we are often left with a sense of two irreconcilable reactions to the same deed, one that is animated by our immediate feelings and another one that speaks to our exercise of rationality. New forms of justice may just bridge this yawning gap.

In the US, some judges have for some time now imposed 'name and shame' sentences on criminals. Instead of incarceration, they require criminals to put up signs in their front garden, announcing publicly either the nature of their sentence or, alternatively, warning the public of the presumed nature of the person himself. The practice of naming and shaming has also won more supporters in the UK over the last couple of years and the media have (within the rules of the justice system) adopted similar tactics.

You are the executioner... enforcing sentences in Florida in 2013

The arguments against naming and shaming appear feeble. Why not do it if it prevents future crimes? The practice also appears to go hand in hand with a growing willingness to 'self-confess' and voluntary public exposure, exemplified by shows such as Jeremy Kyle and others.

Yet, I would argue that we should be careful about the effects of 'name and shame'. The first argument against it comes from our lack of knowledge about what motivates and regulates human behaviour. Naming and shaming may have a temporary deterrent effect but we do not know whether, in the long run, it may only lower the threshold of acceptability for everyone. People learn to live with all sorts of situations and adapt quickly. Our fabric of social norms may just be too flexible to make 'naming and shaming' an effective tool for crime prevention.

The other, more powerful, argument is more philosophical. It was made many years ago by Michael Pawlik (FAZ, 17.November 2004, p35). Pawlik argued that 'name and shame' would alter the role of the public in the justice system. Whilst court cases are open to public scrutiny, the role of the public in this context is not to pass judgement itself, but to validate the correctness of the judicial proceedings, a point to whose importance anybody living in a country without proper and independent judiciary can attest to. In effect, the gazing public in the court is scrutinising the procedure, not passing judgement itself. That is the fundamental meaning of court proceedings 'open to the public'.

The case is different for naming and shaming. It only works if the public adopts the role of judge and executioner at the same time, reinforcing public condemnation of the crime committed by marginalising the criminal within the public sphere. In this scenario, the public plays a different role. It undercuts the separation of powers that is ingrained in the justice system between judgement and executing the sentence.

Pawlik is sceptical about the ability of modern societies to resist naming and shaming. He points out that, in the long run, justice systems are likely to approximate prevalent sensibilities (or lack thereof) about what constitutes good and proper punishment. If he is right, we have one more reason to mistrust our initial feelings when we hear about abhorrent crimes. We may not be the best judges of either the deed or the most reliable enforcer of any future sentence.