Humiliation-based punishments are designed as deterrents, but sentences that embarrass the most vulnerable among us are cruel, and represent the worst of American policies.
In November, several Bangladeshi immigrants who’d been convicted of food-stamp fraud were given a rare kind of shame-based sentence by a Michigan judge: They had to publish ads in print newspapers, which ran for three weeks, aimed specifically at the immigrant community, printed in both English and Bengali, that read, “To Readers, listen to us. If you cheat on food stamps you are committing a federal crime and will be punished for doing so. We know: We have been punished for cheating on food stamps.”
This form of punishment has been used increasingly as a “creative” alternative to standard sentences. A 2015 article in Prison Legal News notes a number of shame-based sentences in recent years, including forcing people to wear humiliating signs at busy intersections; forcing people to have their hair cut short in the courtroom; performing community service in a Santa suit; sleeping in a dog house for a month; attending church for ten years; and sterilization.
Shaming sentences can be borderline silly (ahem, Santa), and constitutionally questionable. In 2008, a judge in Texas punished a 14-year-old girl for truancy by compelling her stepfather to paddle her with a wooden board in the courtroom or face a $500 fine. The parents did not have the means to pay the fine, and say they felt forced to comply with the corporal punishment. The family filed a lawsuit, but did not win. The State Commission on Judicial Conduct issued the judge a warning, saying he exceeded his judicial authority.
The courtroom spanking case highlights a common problem for poor people in the criminal justice system: Namely, if you can’t afford fines, you’re at greater risk for more severe punitive measures. “Everything that’s bad about the criminal justice system falls almost exclusively on the backs of the poor,” says Paul Wright, Executive Director of Human Rights Defense Center and Editor of Prison Legal News. Socioeconomic bias is rampant in the criminal justice system, and sentences that use humiliation as punishment are no exception.
“It’s almost like stating the obvious that the people caught up in the American police state tend to be poor regardless of their race,” Wright says. And racial minorities endure bias both because of their race and because they are disproportionately poor. “Wealth,” says Wright, “is the biggest prison diversion program known to American History.”
While proponents of alternative sentences cite intentions like reducing recidivism, Wright insists that the purpose of shame-based sentencing is actually vigilantism. And, considering the risks already posed to immigrants spurred by an administration who incites violence with hate-filled rhetoric about immigrants, vigilantism for immigrants is a particularly cruel way to exert dominance and power.
Eviction, loss of professional licenses, and deportation are some of the indirect consequences of criminal conviction. Known as collateral consequences, they disproportionately affect poor and marginalized people. Homeowners are less vulnerable to losing their homes than renters; those who are self-employed won’t face the scrutiny of an employer; natural born citizens won’t face losing their residency.
In cases of public shaming sentences, the collateral consequences have sometimes been severe. According to Prison Legal News, vigilantes have abused, robbed, and killed convicted sex offenders because of their past crimes. Vice reported last March on the way some vigilantes have accessed photos, names and addresses from sex offender registry lists in order to track down and murder convicted sex offenders.
Immigrants face a consistent and increasing risk of vigilantism because of the heightening climate of bigotry in the United States. Putting immigrants on blast for their offenses, as the Michigan judge did by requiring the offenders to place a newspaper ad, places not just those convicted at risk, but the entire immigrant community because it feeds an already rabid narrative that suggests that immigrants are taking our jobs and our money and our homes. President Trump has not only repeatedly referred to immigrants as “rapists” and “criminals,” but has also said: “These aren’t people; these are animals.”
And while those words are ignorant and patently false, divisive other-ing by a national leader can and has resulted in increased violence. The whole “we need a wall” conversation in and of itself, where Trump is trying to paint every migrant coming to the U.S. as criminal and terrorist, lends to entire communities of immigrants feeling unsafe. In fact, it is that rhetoric that ushered in policies that separated asylum seeking families and resulted in some children being permanently displaced. It is this rhetoric that allows some people to shrug when they see tiny children in diapers and bare feet running from tear gas being shot at them from the border.
Likewise, Trump’s bold-faced misrepresentation of immigrants as “bad people” has similar ramifications. In November, the FBI announced that reported hate crimes rose by 17 percent in 2017 from the previous year. Most of the reported hate crimes were based on a person’s perceived race or ethnicity or ancestry. Notably, the spike in reported crimes covers the first year of Trump’s time in office, much of which was spent stoking racist sentiments, particularly against immigrants of color. And according to the ACLU, crimes and threats against immigrants are largely considered to be under-reported because of the fears that the immigrant community has of law enforcement turning them over to ICE.
Shame-based sentences aren’t necessarily more lenient; they don’t even always keep people out of prison. Often humiliating punishments are part of a package of consequences, some of which include prison sentences, some of which are for smaller crimes that wouldn’t otherwise entail a harsh sentence at all. “I’ve yet to see a single case where someone was going to go to prison who didn’t because of this,” says Wright. “The reason our prison population has more than doubled in the past 30 years isn’t because we have more crime or more criminality; it’s because we’ve lengthened the sentences for everything—and that’s across the board.” Wright says that everything that’s been promoted as being a diversion from prison programs has actually served as a feeder into the prison system.
There is no evidence that creating social pariahs through shame-based sentences reduces recidivism, but it does offer some judges a certain sense of vindication and piety. And it increases the likelihood that the convicted person will be at greater risk of targeted hate, homelessness, and displacement. Shame-based sentencing represents the worst of American policies. These “creative sentences” use power structures to exploit the most marginalized and their use is emblematic of a country that has vehemently justified colonization, that has denied rights and land to black and brown and indigenous people, and that has never apologized for its racism.
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