Photo by Tony Webster on Flickr
Bailey Wharton, Associate Member, University of Cincinnati Law Review
I. Introduction
In December 2021, the Cincinnati Police Department engaged in a series of sex sting operations in Mt. Airy Forest that culminated in the arrest and citation of twenty men for various misdemeanor charges such as public indecency and sexual imposition.[1] The police planned to hold a press conference to showcase the results of the sting, complete with videos and the dissemination of the names of those men allegedly involved in the crimes.[2] However, the Mayor’s office quickly quashed the police’s PR campaign.[3]
The police union president criticized the cancelling of the PR campaign, arguing that the Mayor’s office “muzzled the police and stifled a valuable deterrence tool.”[4] In response, the city’s Interim City Manager released a statement explaining that “[i]t is the position of this administration that the justice system will hold these individuals accountable, and that a public relations campaign related to the arrests was unnecessary.”[5] The Mayor further explained that “the city shouldn’t be in the business of shaming people”[6] and that city resources should rather be “specifically targeted at preventing and prosecuting violent crime.”[7]
This clash between City Hall and the police department brings up interesting questions about the use of public shaming campaigns as a crime prevention tool. Part II of this article will overview the justifications put forth in support of public shaming as well as the arguments against the use of public shaming. Part II also will explain how law enforcement and the legal system have traditionally used public shaming as a crime prevention tool. Part III will argue that the cost of public shaming generally outweighs the benefit, especially considering increased access to the internet and social media.
II. Background: The Use of Public Shaming as a Crime Prevention Tool
There are two schools of thought when it comes to the use of public shame as a crime prevention tool. On one hand, there are those who justify the use of shame as a “cost-effective way of achieving deterrence.”[8] Proponents also point to public shaming as a “means to deter the defendant from future criminal conduct, to rehabilitate the defendant, and to protect the public.”[9]
The use of public shaming is common in sex-related cases, including public indecency, prostitution, and sex trafficking. Proponents support the use of public shaming in these types of cases because it is a cost-effective alternative to imprisonment that “express[es] moral condemnation of the offender’s conduct.”[10] For example, following a sting operation which saw the arrest of seventeen men for lewd activity in a public park, police in Volusia County, Florida released the names, ages, home addresses, and videos of the arrest of the men arrested.[11] The police justified the public shaming campaign by stating that the “arrests were meant to send a message” and that it was important for them to “set the tone” that such lewd activity is not to be tolerated.[12] Similarly, the Wisconsin Attorney General has expressed an interest in using public shaming tactics in sex trafficking cases because “john-shaming” is a good way to hold them “publicly accountable” by “bring[ing] public scrutiny to bear and let[ting] the guys know they will not just pay a fine and slink away.”[13]
On the other hand, there are those that warn of the dangers of public shaming as a violation of human dignity[14] that is “inherently cruel and socially unacceptable.”[15] Individuals subjected to public shaming campaigns may experience a wide range of consequences, and thus, the issue of proportionality of punishment compared to the level of offense arises.[16]
This imbalance between the ramifications of public shaming and the level of offense can be highlighted in cases of public indecency or other misdemeanor lewd behaviors. The naming and shaming of such offenders typically results in the loss of their jobs or of other meaningful employment opportunities; the humiliation, stigmatization, dehumanization, and status degradation of the offenders themselves; the humiliation and stigmatization of their family members, who are often innocent victims; and the loss of personal privacy and dignity.[17] In the most severe situations, it has caused the shamed individuals to hurt themselves or commit suicide.[18]
III. Discussion: The Use of The Internet and Social Media in Public Shaming Campaigns
One of the largest concerns with law enforcement or the judicial system utilizing public shaming as a punishment tool is that by doing do, the government no longer holds the monopoly on the enforcement of criminal punishment. In fact, “once the government puts an offender on public display, it cannot control the reaction of the crowd.”[19] This delegation of enforcement power can result in “a sort of lynch justice”[20] and ultimately “erode important social norms of decency and respect for others’ dignity.”[21]
This concern becomes heightened when it comes to the use of the internet and social media as a mode of public shaming. Once something goes on the internet, the original poster loses control of it, and it remains there forever.[22] Therefore, once law enforcement engages in an online public shaming campaign, they have effectively delegated the punishment to the public and no longer retain any control over the nature of the punishment, at which point the “shaming can spread like wildfire.”[23] This creates a disproportionate (and indefinite) punishment scheme in situations where the original offense was something minor[24] — creating a punishment which “far exceeds any kind of police response to any other alleged nuisance activity.”[25] For example, if a person goes to jail for a crime, the amount of jail time is at least nominally proportionate with our justice systems evaluation of the crime’s severity. However, the court of public opinion, particularly on social media, bears no proportional relationship. Perhaps even more troubling, the response on social media can be connected to factors completely unrelated to the crime, such as the bigotry or ill-intent of particularly unsavory pockets of the internet. One reason why the justice system takes the reigns on these situations is to prevent the ugliest facets of society from disproportionately influencing the outcome. Unfortunately, social media often represents a place where such a discourse flourishes, adding to the unjust nature of this tactic.
The right to privacy is most vulnerable to invasion by digital public shaming. While there may be some merit to the argument that “the loss of personal privacy and inability to control the distribution of personal information is enough to deter”[26] criminal conduct, it is also worth considering whether indefiniteness of such a tactic borders on cruel and unusual punishment.[27] The psychological effects of public shaming online may also be more severe and long lasting than under traditional public shaming campaigns, like news conferences or printing mug shots in newspapers. This is because non-digital public shaming campaigns typically last only a news cycle or two. Eventually the news will move on, and the shamed offender may be able to quietly return to their day-to-day life without the constant public reminder of their actions. In comparison, digital public shaming campaigns remain easily accessible forever, and can be brought back up time and time again, subjecting the shamed individual to the experience of public shame over and over again, impacting their lives, or their families’ lives, for the indefinite future. Thus, the punishment may snowball and become incredibly disproportionate in cases where the offender was only cited or charged with minor crimes.
IV. Conclusion
While there are some legitimate arguments for using public shaming as a crime prevention tactic, there are also real concerns about whether or not the benefits actually outweigh the harm. This concern is particularly glaring when the internet or social media is used as the mode of shaming. In all applications of public shaming though, there is a serious concern about the delegation of criminal punishment to the public. Once it comes into the hands of the public, there is very little that can be done to reign in the shaming to ensure that its harmful effects do not exceed beyond the level of punishment justifiably accepted for the particular offense at issue. There is a very thin line between an acceptable reaction to public shaming and the potential for a disproportionate maelstrom of public backlash. In a society that purports to prioritize human dignity and respect, the use of public shaming presents a real threat to the notion of proportional justice, particularly when applies to low level crimes such as public indecency. Therefore, the Cincinnati Mayor’s office was likely justified in stopping the police from using shaming tactics, as the repercussions could far exceed the potential benefits when applied to a relatively minor offense.
[1] Elizabeth Nolan Brown, Cincinnati Cop Union Head Pouts Over Nixed Publicity for Gay Sex Sting, Reason (Feb. 2, 2022, 4:00 PM), https://reason.com/2022/02/02/cincinnati-cop-union-head-pouts-over-nixed-publicity-for-gay-sex-sting/ [https://perma.cc/MH57-7FXX]; Cameron Knight, In a Cincinnati forest, a sex sting operation leads to a clash between police and mayor, The Enquirer (Jan. 31, 2022, 5:59 AM), https://www.cincinnati.com/story/news/crime/2022/01/29/mount-airy-forest-park-arrests-aftab-pureval-dan-hils-clash/9232782002/ [https://perma.cc/Q2NC-7GDU].
[2] Knight, supra note 1.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Brown, supra note 1 (internal citations omitted) (emphasis added).
[8] Stephen P. Garvey, Can Shaming Punishments Educate?, 65 U. Chi. L. Rev. 733, 738 (1998).
[9] Lauren M. Goldman, Trending Now: The Use of Social Media Websites in Public Shaming Punishments, 52 Am. Crim. L. Rev. 415, 427 (2015); see also Garvey, supra note 8, at 733 (“[A] public admission of guilt will be a more successful deterrent in comparison to an admission of guilt in the courtroom because the courtroom allows the offender to remain anonymous and unaccountable.”); see also Michal Lavi, The Good, the Bad, and the Ugly Behavior, 40 Cardozo L. Rev. 2597, 2616 (2019) (“It promotes compliance with the law, retribution, and efficient deterrence of the activity. It may also discourage members of society from similar violations.”); see also Toni M. Massaro, The Meanings of Shame: Implications for Legal Reform, 3 Psych. Pub. Pol. and L. 645, 691 (1997) (“Their possible justifications are that public shaming may rehabilitate some offenders…and may shore up norms and deter similar misconduct by others.”); c.f. Garvey, supra note 8, at 737 (“[T]hese punishments expose the offender to public view and heap ignominy upon him in a way that other alternative sanctions to imprisonment, like fines and community service, do not.”).
[10] Garvey, supra note 8, at 745; see also Lavi, supra note 9, at 2608 (“It informs the public about the conduct of individuals and allows criticism and expressions of disapproval of a person’s actions.”).
[11] John Paul Brammer, Public Sex ‘Sting Operation’ Leads to Naming and Shaming of 18 Men, NBC News (June 8, 2017, 2:40 PM), https://www.nbcnews.com/feature/nbc-out/public-sex-sting-operation-leads-naming-shaming-18-men-n769946 [https://perma.cc/SXE6-P2J8].
[12] Brammer, supra note 11.
[13] Katherine Lymn, Can public shaming end sex trafficking?, Post Crescent (June 16, 2016, 12:12 PM), https://www.postcrescent.com/story/news/2016/06/16/can-public-shaming-end-sex-trafficking/85356052/ [https://perma.cc/7TN4-BQ5E] (internal citations omitted); see also id. (“The largest single consensus among them was that the biggest deterrent would be having their name and/or photograph somehow exposed publicly, to their families or to members of the public, exposing them for what they’re doing.”) (internal citations omitted).
[14] John Hagemann, Is There a Place for Shame?, 50 S.D. L. Rev. 494, 495 (2005).
[15] Goldman, supra note 9, at 416.
[16] See id. at 433; see Garvey, supra note 8, at 749 (“[I]t may impose hardships no one thinks the shamed offender really deserves.”).
[17] See Brammer, supra note 11; Lymn, supra note 13; Goldman, supra note 9, at 431; Lavi, supra note 9, at 2604; Massaro, supra note 9, at 703.
[18] See Brammer, supra note 11; Brown, supra note 1; Knight, supra note 1; Garvey, supra note 8, at 749; Lavi, supra note 9, at 2600.
[19] Goldman, supra note 9, at 435; see also Massaro, supra note 9, at 694 (“Public shamings appeal directly to the community to participate in the punishment and, presumable, to retaliate against the shamed offender by withdrawing their approval and inflicting other injuries that are difficult to predict or contain.”).
[20] Id. (internal citations omitted); see also Lavi, supra note 9, at 2613 (“Once this type of shaming spins out of control, mob justice (“lynch mob”), harassment, and violence soon follow.”); Massaro, supra note 9, at 649 (“It may encourage private retaliation against offenders and a kind of lynch-mob justice.”) (internal citations omitted).
[21] Massaro, supra note 9, at 649; see also Goldman, supra note 9, at 435 (“By allowing the public to have some sort of influence over the offender’s treatment, the offender is robbed of his transactional dignity.”).
[22] Lavi, supra note 9, at 2603 (“Online shaming is not ephemeral. It stays on the internet and remains accessible and searchable through a simple Google query indefinitely.”).
[23] Id. at 2602.
[24] Id. at 2604.
[25] Brammer, supra note 11.
[26] Goldman, supra note 9, at 431.
[27] Id. at 434 (“Although the Supreme Court has not held that public shaming punishments violate the Eighth Amendment, many still argue that the method by which the government wishes to deprive offenders of their dignity [or privacy] is simply unacceptable.”) (emphasis added).
