Shaming the Greedy and Fraudulent: Promise and Perils
posted by Danielle Citron
In today’s New York Times, Clyde Haberman discusses the greedy and destructive behavior of prominent Wall Street types and ponders whether they should be made to feel a sense of shame for their actions. For instance, John Thain, the recently fired CEO of Merrill Lynch (now part of Bank of America), paid huge bonuses to executives, even though Merrill had just lost $15.3 billion during the last quarter of 2008. Mr. Thain asked for a $30 million bonus, even while the company was crumbling and seeking billions in taxpayer bailout money. He spent $1.2 million to redecorate his office, which included the purchase of a $87,874 area rug, a $68,179 credenza, and a $18,468 George IV chair. Bernard Madoff erected a Ponzi scheme worth $50 billion, largely on the backs of members of the Jewish commuity who entrusted their millions to him because he hailed from their larger community. (Lisa Fairfax at the Conglomerate has a terrific post on the significance and perils of affinity fraud in light of the Madoff scandal).
Haberman asks: “Is there a way for the Thains [and Madoffs] of the world to be held up to shame, if only as a caution to others? How about something like billboards bearing their pcitures and brief descriptions of their actions?” Criminal law theorist and Prawfs blogger Dan Markel explained to Haberman that it is certainly permissible for private entities to say: “Look, this person has wronged us greviously” as it is part of the marketplace of free speech, as long as the statements are not defamatory or otherwise tortious. But Markel cautioned that such nontraditional shaming punishments tend to “humiliate more than rehabiliate, encouraging a kind of hot, emotional vigilante culture.” On the other hand, law professor Steven Calandrillo emphasized the practical value of such shaming: those in business will think twice about their own actions after seeing public shaming strip colleagues like John Thain of their good name.
Markel may have the stronger argument. The threat of a vigilante mob is particularly potent in our networked age: online and offline shaming can ruin reputations, produce privacy invasions, and lead to offline stalking and physical violence. And as Martha Nussbaum argues in Hiding From Humanity: Disgust, Shame, and the Law, a judge ordering a defendant to wear a sign to work that says “I am a thief” would unfairly demean the defendant. This, of course, is a hotly debated issue in the literature and would be worth further discussion.
January 27, 2009 at 10:09 am
Posted in: Criminal Law, Culture, Current Events
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Responses (2)
Patrick S. O'Donnell - January 27, 2009 at 12:39 pm
Let’s set aside for the moment the awful problems raised by shaming mechanisms as rightly noted by Nussbaum, as well as the consequences correctly cited by Markel and ask again, “Is there a way for the Thains [and Madoffs] of the world to be held up to shame, if only as a caution to others? How about something like billboards bearing their pictures and brief descriptions of their actions?”
The intended salutary effect her assumes those for whom it is to serve as a “caution” are capable of being shamed. I suspect that such individuals are more or less constitutionally shameless and thus the message falls on deaf ears. For those are already disinclined to such behavior, it may in fact serve to reinforce their beliefs about wrongdoing, crime, punishment and so forth.
In a previous post on shaming punishments by Dan Berman of Sentencing Law and Policy fame (while guest blogging at Prawfs), I made the following comment (slighty modified here):
I am adamantly opposed to “shaming punishments,” for a number of reasons, some of which I share with Dan M. (one reason: those who are already ‘shameless,’ for instance, capable of routinely violating both laws and social norms, are not likely to be shamed into good behavior; its power to effect conformity in such cases is otiose). I think its putative effectiveness is no more likely than the persuasiveness of Adam Smith’s argument that in a market society in which envy poses a real threat to moral sympathy, shame will serve to counteract such envy. As we now know, Smith’s argument was wrong, as envy remains one of the passionate emotions that continues to stoke the fires of conspicuous consumption characteristic of affluent capitalist societies (his argument may have some force in the case of peasant societies wherein envy is more transparently a transgressive emotion, or in Asian societies in which shame often plays a role analogous if not identical to ‘guilt’ in our society, but in a society which revels in routine mass media displays of ‘shamelessness’?).
Another reason why recourse to shaming punishments does (or may) not work in our society:
“The fragmentary, reflexively created self impacts on the experience of shame in a number of ways. With the freedom, insecurity, and isolation of the late-modern self, one’s view of oneself–even from the standpoint of others–is likely to be less focused than it would have been when the social formation of self gave rise to a more solid and unitary product. Alas, in the fragmentation of the self, experiences of shame may arise through the standpoint of another which is a disarticulated aspect of self. In this latter case the shame is narcissistic, and does not necessarily contribute to social conformity but is symptomatic of individual pathology [A compelling and disturbing illustration of the kinds of pathology that might arise from the experience of shame is provided by James Gilligan in his book, Violence: Our Deadly Epidemic and Its Causes, 1996]. The clinical condition of narcissism arises when the self fails to form social relationships with others but treats them as objects which can be used to satisfy unconnected desires of the self. Narcissistic shame, then, is more a short-circuit and less a social sanction.” (J.M. Barbalet, Emotion, Social Theory, and Social Structure: A Macrosociological Account, [Cambridge, UK: CUP, 1998]: 119) Indeed, Barbalet discusses the research of other such as Thomas Scheff and Helen Block Lewis which detail the deleterious consequences of “shame gone wrong/bad,” i.e., those cases in which “bypassed” or “denied” shame (i.e., the shame affect is unavailable to the subject) leads to hostility and rage, or when the shame of the “other” is experienced as a source of hostility: “In the case of overt and bypassed shame…the feeling of shame cannot be discharged. A consequence of this is that neurotic symptoms form, the expression of which include humiliated fury and shame-rage” (Barbalet: 121).
It’s thus not implausible to argue that many of those who commit crimes are lacking a healthy sense of self-respect and self-love, for narcissistic shame is pathological self-love: “When self-love is sufficiently diminished, one feels shame,” according to James Gilligan (see reference above), and CONTINUED OR CONSTANT SHAMING “leads to a deadening of feeling, an absence of feeling.” In such cases at least, it is clear that shaming mechanisms only exacerbate existing problems of criminal justice or the quest for conformity to ethical social norms.
What’s critical for shaming mechanisms to work is a healthy sense of self, a self with some miminal attributes of autonomy in a Kantian sense and thus shame can serve as “an emotion of reflected self-assessment” (J. David Velleman).
Velleman further explains why shame does not hold for those with a fragmented or narcissistic self or, in his terms, one lacking the capacity for “self-presentation:”
“Many of our moral failings consist in impulsive or compulsive behavior in which we fail to keep some untoward impulse to ourselves. To acknowledge such behavior is to realize that some untoward impulse is showing, such as our greed or cowardice, and this realization can induce the anxiety that amounts to shame, in my view. If our reason for wanting to keep these impulses private is that we perceive or imagine disapproval of them, then our shame at their exposure will also be associated with a reflected assessment of the sort posited in the standard account. *But shame would not be associated with that assessment in the absence of any sense of compromised self-presentation–for example, if we acted on the same impulses with abject resignation or brazen defiance.”*
It seems more than plausible to argue that the likes of Madoff, Thain, or Governor Rod Blagojevich for that matter, act on impulses utterly impervious to “any sense of compromised self-presentation” and are thus for all the reasons that matter, shameless.
The material from Velleman is from an essay, “The Genesis of Shame,” that first appeared in Philosophy and Public Affairs 30, No. 1 (Winter 2001): 27-52 and is reprinted in his book, Self to Self: Selected Essays (2006).
Patrick S. O'Donnell - January 27, 2009 at 12:42 pm
erratum: “The intended salutary effect here assumes…”
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