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Shameful Justice: Does Shame or Guilt Punish Fairly in America?

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Credit: vergenetwork.org Justice

A time for telling truth has come upon us now.
We needn't lie to get us through these times
You see it in my slain eyes and tensioned brow.
I don't pretend freedom's guilt in these rhymes.

What is guilt of freedom but knowing another suffers unjustly or that injustice exists and society closes its collective eye to it? I am not a proponent of guilt as one of the healthier emotions and certainly not as an effective tool of justice. I do, however, live in a guilt and shame justice culture.

Cultural anthropologists define a shame culture as one that controls its populace or maintains social and familial order through shame as opposed to a guilt culture which controls its populace and maintains order through guilt or fear of retribution (Wong & Tsai).

China, with its Confucian-infused culture, as well as Japan are shame cultures whereas the United States is clearly a guilt culture with punishment the primary tool to deter crime and slake the revenge thirst of victims and their families. Shaming is sometimes used in the American judicial system, though sporadically and sometimes tyrannically. Particular judges, exasperated with repeat offenders, look for alternative ways to stop criminal behavior where incarceration has failed to deter.

Thus, there have been news flashes old and new of shaming as justice. For example, the earliest one I recall is the repeat offender of child abuse/neglect, pregnant with her fifth child, who was given the choice to do time or do Norplant, the contraceptive implant. Holy hell broke loose in the media and public opinion as to bodily rights, Nazi judges, and the like. People do go on. Funny thing is, if memory serves me, the woman took the Norplant, but later reneged and hired lawyers.

Then there were the cases more recently of people having to stand by crowded public thoroughfares carrying shaming signs, like the Ohio woman who was sentenced to hold a sign that said, "Only an idiot would drive on the sidewalk to avoid a school bus." While that strikes me as a fair amount of burning shame and better than going to jail, other signs are not such a measured singe. Around the country, convicted sex or violent offenders, as conditions of parole or terms of sentencing have been required to post signs on their property that warn the public of the danger of entering the property of a convicted felony rapist, batterer or child molester.

However, the ostracizing as well as the collateral damage to innocents in cases of more severe crimes, ones deemed morally reprehensible and not a mere moving violation on steroids, may be too disruptive and destructive. One can imagine angry communities burning down houses with those signs or children of offenders suffering the crimes of the father or mother.

Some offenders suffer enormous shame and abuse in prisons just by the conditions of unending days of boredom, violence, degradation and isolation. So, the result, to some, of those conditions-of-parole shamings or shaming sentences may be an unending prison of ostracization. One might think certain offenders should be forever imprisoned--or capitally punished--but it depends on the offense and the offender, doesn't it? Some offenders can be rehabilitated and returned to the community as productive citizens; some crimes are worse to the community and in their heinousness than others.

The competing concerns of the community, the larger society (for revenge, retribution and safety), and individual offenders (punishment, deterrence and rehabilitation) are always at the heart of the debate, the two always in tension. What role should shame play in mediating the two, from both a retributive and communitarian perspective?

The communitarian view of punishment endorses the use of shame by the community as an alternative solution to incarceration with rehabilitation back into the larger community as the aim. In communitarian-inspired programs, community members, including victims, express their concerns, experiences and feelings to the convicted in hopes of yes, shaming, but not with blame as the terminal goal but reintegration. Retribution advocates, on the other hand, put the responsibility of punishment in the hands of the state to mete out just punishment based on proof of culpability or responsibility and the sentences appropriate to same, largely incarceration and fines.

Shame justice anticipates that an offender is motivated by or demotivated to repeat offend to avoid the loss of status in a community. Retributive justice focuses on society's rights to be unmolested and protected. Retribution is the root of an individualistic society founded on guaranteed freedoms as opposed to a more communitarian-minded society that uses shame not to ostracize but to exercise empathy, identity with the victim, and a sense of honor, in order to reintegrate the offender into the community.

Shame and remorse are the primary motivators in communitarian programs geared toward battling recidivism; empathic ability is a prerequisite. This obviously doesn't work for the sociopath or the disassociated from the main community, such as some ghettoized populations that adhere to the values of subcultures or anti-cultural creeds rejecting the larger cultural norms (See shame prediction for felon reoffending)

Shame is always present in meting out justice, conscience, empathy and guilt its associates or core components. But its effectiveness as a deterrent is certainly debatable precisely due to its power to destroy and deflect. Shame, which is a potent emotion, focuses on the person as bad whereas guilt is more targeted toward the act. In other words, an offender might think, "I am a bad person" instead of "I did a bad thing."

According to Ryan Jacobs, Associate Digital Editor of the Pacific Standard, in an article exploring shame's role in predicting felon recidivism, shame is less effective in diminishing recidivism than guilt. He claims that is because shame is so potent it produces in many the defensive reaction that blames others for the offenders' transgressions rather than directing shame upon themselves; it is hard for them to accept that they are bad people.

Jacobs notes that "blame transference" is a coping mechanism for "the intense self-doubt" caused by shame. He concludes that rehabilitation by shame is dicey due to the susceptibility of any program to this transference tendency of its participants. He recommends "goal-oriented" programs like those of the German and Dutch who allow prisoners to channel their energies into productive work--unlike the American criminal justice system.

"With excessive sentencing, extreme isolation, and little in the way of structured re-entry programs, inmates are practically invited to blame the system and believe that the forces of society have conspired against them." He concludes that this sort of system does nothing to reduce recidivism: "Once released and faced with lower economic prospects and no voting rights, U.S. ex-convicts are treated to the same sense of shame and worthlessness they encountered in prison. Full of blame, that’s probably where they’ll return."

Richard Lovelace, the poet who wrote from prison more than 350 years ago states that "Stone walls do not a prison make, / Nor iron bars a cage."

While social justice, its efficacy and humanity, is and has been a concern of mine, from both sides of the law, my larger preoccupation has always been on the personal, individual level. A society is nothing more than an aggregation of individuals contractually living. I also subscribe to the beleaguered notion that social change begins within each society member, his or her ability to be compassionate, loving, accountable, responsible and forgiving.

So what about personal relationships? How do individuals exact justice in their familial and love relationships, and what role should shame and guilt play? One doctor, Dr. Dan Gottlieb of WHYY radio in Philadelphia believes more in the communitarian approach to personal justice, restorative justice in the family, community and larger society, and his general principles of personal justice lend support to my belief that we affect a society one person at a time to create a more effective and affective, empathic practice of justice in a judicial system--using shame.

This short, somewhat awkwardly but sincerely produced short video elucidates Dr. Gottlieb's psychological interpersonal perspective of shame and restorative justice.
Click here

So what about love relationships? Gottlieb only lightly touches on fair argument-understanding strategies. When lovers claim "unfair," that one thinks "I should be able to cheat if you do," or a spouse believes the I-should-take-up-the-same-amount-of-responsibilities-as-you argument, what kind of justice are they calling upon? What about when spouses or parents use shame: if you loved me, loved me enough, were a good person, you would do x, y or z? Should shame be used in personal relationships to exact justice, revenge, discipline? This inquiring mind would like to know what you, my dear reader, thinks.

9 thoughts on “Shameful Justice: Does Shame or Guilt Punish Fairly in America?

  1. Hmmm… “I should be able to cheat if you do”, sounds personal and yet familiar at the same time. But to answer your question, I see the essence of justice depicted in the blindfolded young lady holding the balanced scales that represent justice. The balanced scales, of course, represent equilibrium. I believe the core and purpose of justice is the need of humans to bring the injustice back to this point of equilibrium. And I feel compelled to add that a sense of justice does not appear to be confined to humans. In a laboratory experiment I saw on National Geographic, The Discovery Channel, or maybe YouTube, monkeys in adjoining cages we’re being fed grapes by the human observers. However, one monkey was fed larger, better tasting, and more grapes as the other monkey looked on. Soon the monkey receiving the inferior grapes became enraged and began grabbing at the arms of the observer and tried to steal the grapes that his companion in the next cage had received. The question asked of the experiment was to see if primates, like humans, experienced a sense of fairness; of justice and injustice. At the conclusion of the experiment all observers concurred that the answer was a resounding “yes”. In fact the observers we’re clearly surprised at just how acute this sense of fairness was in a lesser primate. And anecdotally what owner of multiple pets has not witnessed an often hilarious attempt by one pet to get more than his or her fair share of food or attention, and the often laughable attempts by the other pet to “balance things out”. It appears, therefor, that a sense of justice and a need for justice is not limited to one species. Who knows, perhaps a sense of fairness and balanceis a part of life itself on earth.

    So what does this have to do with relationship shaming in order to achieve a sense of fairness and justice? Everything. In any relationship bound together by some form of love the measure of that love is the mutual respect each party accords the other. When one party perceives that equality to be out of balance he or she will attempt to return the relationship to equilibrium. The aggrieved party will use either shame or guilt or both to return the scales to a point of stasis. I believe that it is this sense of fairness, of justice that supersedes the method of achieving it. The specific method is inconsequential; it is an afterthought, or, more likely, not a thought at all.

    • MPM, I agree that a sense of justice is big in us and that balance of all aspects of our lives is critical to health: emotions, physical, spiritual and mental. I know that I feel stressed when my life is chaotic and not balanced with enough quiet time or when I spend too much time in my head and not enough time exercising my body. All of my thoughts and actions are affected when I don’t have all of the parts of my life in balance.
      You state that in relationships justice is a form of balance, if I read you right. I agree to a certain extent, and perhaps it is difficult to write about the idea without specifics. An overall justice or balance between two people in a relationship strikes me as necessary. For example, both parties have equal expectations of
      shared love, an equal desire to spend time and make plans for important things like having children. You can imagine the injustice of both spouses agreeing they want children and then one of them reneging what breakage that may cause, severe injustice. But can the one who wanted children then bring the justice, the balance by shaming the other into having children? Will the tactics used to achieve the justice, which is surely warranted in the above mentioned scenario, not cause resentment, a divot in the solidity of the relationship? I think the way people resolve conflicts or imbalances IS important because over time, the accumulation of injuries due to unfair fighting or shaming or guilting erodes relationships just like accumulated injuries due to abuse, cutting someone down for his or her mistakes, making the other feel inferior. I believe the tactics used to get what you need in a relationship is important, speaks to the health of the individuals involved in the relationship. Is shaming ever a good method of achieving balance in personal relationships? That is the question. When it comes to the larger society in the judicial system, I can see how it works, but as both communitarians and Gottlieb point out, the intention and end goal must be not that the shaming is end but the means to another end, reintegration or restoring. So perhaps the intentions of the lovers or spouses need to be clear, open and freely discussed in trust, something built up by actions over the long term. Open dialogue, clear communication seems to be the key ingredient.

      • Gaze, we are on the same page as far as the concept of overall balance and justice is concerned. However, answering your specific example of a couple divided over having children after marriage when having them was a mutual desire before marriage, I think it makes my point exactly. I agree with you to the point that the aggrieved party – the one who now finds him or herself “stuck” with a partner who doesn’t – feels a sense of injustice. In fact it is very likely he or she will feel duped into marrying the partner. Therefore, in order to seek ‘justice’ it is highly probable this partner will seek to dissolve the marriage to find a new partner who truly wants the same as they do. In other words, they will do what is necessary to find that balance they need to feel whole and complete. The other alternative is to stay with the partner who reneged on the agreement and live a life filled with resentment and an inner sense of injustice. That is no relationship at all.

      • And yet, people adapt and readjust, finding whatever else is worth staying with that person as greater than the sum of the injustice or injury.

  2. One hell of an article, an exploration I can very much relate to. First, I noticed in the Quran, it is focused on punishment and fear of consequences, you touched on a few different cultures, and it reminded me of the tone of the Quran and the similar tone of the culture subscribes to it.
    Equilibrium and justice in a relationship? Not. To expect such is to invite a disaster at one’s own hands – why I always did the cooking, cleaning, laundry, for the woman too. There is no argument, there is only a complete control and an understand where the door is. On the other hand, I am obligated to provide the right stuff to keep her happy in that space. A loving dictatorship, financial or otherwise has it’s place.

    • Jim, I concur that loving dictatorships have their place, so long as that is the agreement, explicitly or implicitly, between two people. Relationships are largely contractual. We trade off some of our freedoms to be in a relationship and approach each person as we find him or her. The lock and key fit is there totally or in part or made over time through the daily friction of daily life.

      • Thank You! Yes the dictatorship can work well! Does not matter who is in charge, but as you say, and I love it, relationships are contractual in every sense and there is currency between the two. That currency being custom tailored to that situation. Business is business and the business approach to love seems the most logical and successful.
        Thanks for this as I have a more focused resolution of my own concepts due to your writing.

  3. Nice balance on crime and punishment as well, as you say, how many of us have been on both sides of the law and experienced each one fully? Truth and Death, your anvil.

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