Had Mel Gibson been arrested for drink-driving in Tennessee instead of California, things might have gone differently for him. Last January, a "shame law" for driving under the influence came into effect in the southern state. Gibson could have found himself picking up litter while wearing a bright-orange jump suit emblazoned with the words "I am a drunk driver".
In a society where committing what used to be considered a shameful act can get you a spot on American Idol, it is odd to learn that shame punishment - or "public punishment", or "creative punishment" - is experiencing a renaissance in the US. Call it the new shame.
Tennessee is ground zero for shame punishment, having produced not just the state law but also judges who believe that shame is the best deterrent for petty crime. These include James McKenzie, who makes shoplifters stand outside Wal-Mart with signs that say "I am a thief put here by order of Judge McKenzie"; and Joe Brown, who graduated from dispensing shame punishment in Memphis to his own nationwide TV show. But it's not just Tennessee - throughout the country, overwhelmed judges are using shame to curb the enormous number of petty offenders.
The new shame takes a number of guises: in addition to wearing posterboards, which offenders make themselves, they give apology speeches to injured parties and put up signs in front of their homes identifying themselves as "violent felons"; shoplifters buy ads in local newspapers and put their photos in them. Judge Brown's most controversial use of shame punishment was allowing victims to sneak into burglars' homes and steal something back in a kind of larcenous quid pro quo.
The grandfather of the new shame is from Texas, George Bush's home state. Judge - now Congressman - Ted Poe was inspired to launch shame punishment in the late 1990s in Houston, when a rich kid getting his MBA shoplifted from a Wal-Mart. "He thought he could do anything," Poe told me. "But shame punishment changed his attitude. Plus the store manager said that no one stole during the week that he was standing outside the store with the sign."
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According to Poe, of people who received shame punishment, 9% violated probation - far fewer than the national average of 50%. And shame punishment experienced a victory when, in 2004, an appeal court overturned Shawn Gementera's challenge to a decision ordering him to stand outside a post office with a sign saying he was a mail thief.
But shame is no panacea. In Tennessee, no sooner was the shame law passed than law-enforcement officials complained that shame took a lot more work than just throwing people in jail. And psychologists argue that shame punishments may actually do damage to offenders' sometimes fragile psyches.
Despite the fact that, as some have observed, shame punishment links the US with repressive regimes, the most important problem is that it fails to address the social problems that cause people to commit crimes - even petty ones - in the first place. Standing outside a post office wearing a sign saying "I stole mail, this is my punishment" did nothing to help Gementera kick his methamphetamine habit, which was why he was stealing in the first place.
Americans are great at a lot of things, but sometimes we are not all that great at empathising with others. We expect people to get themselves together, to pull themselves up by their bootstraps; we sometimes expect public disgrace to compensate for social injustice. Sometimes we would simply rather solve things with a spectacle.