In the gaze of the other

"My mistress' eyes are nothing…"

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

<code><br /><br /><a href=”https://inthegazeoftheother.files.wordpress.com/2014/10/img_0237.png”><img src=”https://inthegazeoftheother.files.wordpress.com/2014/10/img_0237.png&#8221; alt=”IMG_0237.PNG” class=”alignnone size-full” /></a>
Credit: vergenetwork.org Justice

<em>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.</em>
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.

<a href=”http://www-psych.stanford.edu/~tsailab/PDF/yw07sce.pdf”>Cultural anthropologists</a> 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 &amp; 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 <a href=”http://www.foxnews.com/us/2012/11/13/ohio-woman-who-drove-on-sidewalk-to-avoid-school-bus-holds-idiot-sign-under/”>Ohio woman</a> 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 <a href=”http://www.psmag.com/navigation/politics-and-law/shame-predict-felon-reoffend-74491/”>shame prediction for felon reoffending</a>)

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 <a href=”http://www.psmag.com/navigation/politics-and-law/shame-predict-felon-reoffend-74491/”>article</a&gt; 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 <a href=”http://www.drdangottlieb.com/2014/07/15/familyaffairs-com-video-dan-discusses-restorative-justice-its-use-in-personal-relationships/”>Dr. Gottlieb’s</a> psychological interpersonal perspective of shame and restorative justice.
<a href=”http://www.drdangottlieb.com/2014/07/15/familyaffairs-com-video-dan-discusses-restorative-justice-its-use-in-personal-relationships/”>Click here </a>

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.

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