Abstract:
There is a long history of legal regimes using shaming to punish criminal offenders, a practice that is currently employed throughout the United States to sanction sex offenders. This Article focuses on how policymakers can minimize the cost of criminal punitive measures by utilizing both legal and nonlegal sanctions. After discussing the general economic case for the use of nonlegal sanctions, the Article presents a model of shaming that, unlike existing models, incorporates the endogenous effects of legal and non-legal sanctions.
More precisely, the model demonstrates that changes in the level of legal sanctions can affect the level of non-legal sanctions and vice-versa. The Article then examines current practices in various U.S jurisdictions of publicizing the names of convicted sex offenders. The author concludes that while such policies arguably have limited preventative value, they may still be justiªed as an efªcient way to sanction sex offenders, subjecting them to non-legal sanctions at costs lower than those associated with legal sanctions. ..more.. by Doron Teichman
P-356: (Non-legal Sanctions) One of the current debates regarding non-legal sanctions concerns the extent to which legally induced non-legal sanctions such as shaming should be used to punish criminals. At one end of this debate stand scholars such as Toni Massaro and James Whitman, who argue that non-legal sanctions are either ineffective or morally repugnant and therefore should not be used.6 At the other end stand scholars such as Dan Kahan and Eric Posner, who argue that non-legal sanctions may be an efficient and politically viable sanctioning tool.7 This Article sides with the latter group and contributes further economic insights to the debate.
(eAdvocate NOTE: The error of this "non-legal sanctions" argument is, first it fails to recognize that a "sanction" is punishment, and as applied to this class is applied after-the-fact make it additional punishment, and further, that there are no balancing or limits to the non-legal sanctions and finally, they are constanly changing and being retroactively applied. There is no finality, registrants are manipulated like pawns in a chess game, often to their psychological limts with many committing suicide)
6: See Toni M. Massaro, Shame, Culture, and American Criminal Law, 89 Mich. L. Rev. 1880, 1883–84 (1991); James Q. Whitman, What Is Wrong with Inºicting Shame Sanctions?, 107 Yale L. J. 1055, 1087–92 (1998).
7: See Dan M. Kahan, What do Alternative Sanctions Mean?, 63 U. Chi. L. Rev. 591, 630–31 (1996); Dan M. Kahan & Eric A. Posner, Shaming White-Collar Criminals: A Proposal for Reform of the Federal Sentencing Guidelines, 42 J.L. & Econ. 365, 366–68 (1999).
P-367: ( ) James Whitman, an opponent of shaming sanctions, points out the adverse effects of these sanctions on the sanctioning public.51 More specifically, Whitman is concerned that delegating the act of punishing to the public could stir up emotions and create an atmosphere of lynch mob justice.52 However, policymakers have the power to take measures to prevent this from happening.53 Prosecution of vigilantes, policing demonstrations against offenders, and harm caused to innocent bystanders are all costs associated with shaming sanctions that must be incorporated into the cost benefit analysis of these sanctions.
The inducement of non-legal sanctions also poses a problem in that it requires reliance on local communities and their own sanctioning norms to punish criminals rather than on a central government. While local norms may serve the narrow interests of a specific community, they may be inefficient from the perspective of the broader community.54 For example, a local community may choose to punish criminals by banishing them.55 Such sanctions are potentially inefficient since they result in a negative outcome outside of the local community, namely the relocation of an offender to a neighboring area.56 As with banishment, housing discrimination may be inefficient since it simply forces criminals to find housing elsewhere. A system based on non-legal sanctions must therefore expend resources on regulating these sanctions, and outlawing certain inefficient sanctions may be necessary.57
51: See Whitman, supra note 6, at 1087–92.
52: See id.
53: Historically, systems using shaming sanctions have been aware of this problem and
devoted resources to controlling the behavior of the sanctioning public. For example, when the pillory was used in England, constables made sure that the event would not deteriorate to wild violence. See J. M. Beattie, Crime and the Courts in England: 1660–1800, at 614–16 (1986).
54: See Posner, Inefficient Norms, supra note 4, at 1720–21 (analyzing the potential
inefficiencies of norms that generate negative externalities).
55: This seems to be the case currently with respect to sex offenders. See, e.g., Abril R. Bedarf, Examining Sex Offender Community Notiªcation Laws, 83 Cal. L. Rev. 885, 908 (1995) (noting that “[s]ometimes the community outrage and rejection forces the offender out of town”). For a review of the non-legal sanctions suffered by offenders, see Part II of this Article.
56: See Doron Teichman, The Market for Criminal Justice: Federalism, Crime Control,
and Jurisdictional Competition, 103 Mich. L. Rev. (forthcoming June 2005).
57: See, e.g., N.J. Stat. Ann. § 2C:7-11(c)(7) (West 1997) (prohibiting housing discrimination on the basis of registration as a sex offender).
P-386: (Family theme) The significant amount of cases where sanctions are directed against the family members of an offender similarly demonstrates the punitive nature of non-legal sanctions generated by SORNLs.147 In research conducted in Wisconsin, for example, two-thirds of offenders reported negative effects on the lives of their family members.148 It is difficult to categorize ridiculing an offender’s son and causing him to leave his school’s football team as a preventative measure.149 Rather, these cases indicate that the sanctioning of sex offenders has become a focal point for a sanctioning norm in some communities.150 Since norm-driven non-legal sanctions are based simply on the willingness to engage in costly acts, the identity of the target of non-legal sanctions is immaterial. Thus, publicly sanctioning the children of sex offenders can be as effective a signal as sanctioning the offenders themselves.
Additionally, non-legal sanctions that are applied to sex offenders are
often applied inconsistently, singling out specific individuals arbitrarily.151
146: See Doe v. Pataki, 940 F. Supp. 603, 610 (S.D.N.Y. 1996) (describing an incident in which a gas station that employed a sex offender was boycotted); Brief of Amici Curae Office of the Public Defender of the State of New Jersey et al. at 8, Smith v. Doe, 538 U.S. 84 (2003) (No. 01-729) [hereinafter New Jersey Public Defender Brief] (reporting that an offender was refused a job because of the hiring company’s fear of negative publicity); id. at 15–16 (describing a case in which an employer terminated an offender due to public pressure despite the employer’s acknowledgement of the offender’s “outstanding performance”); Brian D. Gallagher, Now that We Know Where They Are, What Do We Do with Them?: The Placement of Sex Offenders in the Age of Megan’s Law, 7 Widener J. Pub. L. 39, 53 (1997) (reporting a case in which a business rescinded a job offer to a released sex offender due to negative public reaction). Not surprisingly, community members who oppose notification are sometimes fearful of voicing their opinions in public. In Texas, a resident who spoke out against the local notification policies refused to identify himself to the media out of fear of retaliation. See Tracey-Lynn Clough, Neighbors Warned About Sex Offender, Dallas Morning News, May 24, 1996, at 1A.
147: See, e.g., Pataki, 940 F. Supp. at 609 (noting a case in which members of a sex offender’s family were harassed); Small, supra note 9, at 1466 (reporting a case in which the offender’s sister-in-law and her children were shot at and harrassed).
148: See Richard Z. Zevitz & Mary Ann Farkas, Sex Offender Community Notification: Managing High Risk Criminals or Exacting Further Vengeance?, 18 Behav. Sci. & L. 375, 383 (2000). This fraction overstates the number of non-legal sanctions that are aimed toward family members since it includes cases in which family members were hurt solely by the publication of the offender’s name. See also The National Criminal Justice Association, Sex Offender Registration and Notification: Problem Avoidance & Barriers to Implementation & Sex Offender Registration & Notiªcation Costs Survey Results 32 (1999) [hereinafter Nat’l Crim. Just. Ass’n Study] (discussing the harassment of children of offenders).
149: See Zevitz & Farkas supra note 148, at 383.
150: See Posner, Social Norms, supra note 3, at 93 (pointing out that norm-based nonlegal sanctions might target relatives of wrongdoers).
151: See Richard G. Zevitz & Mary Ann Farkas, Sex Offender Community Notification: Assessing the Impact in Wisconsin, National Institute of Justice—Research in Brief 9 (2000), available at http://www.ncjrs.org/pdffiles1/nij/179992.pdf (last visited Mar. 15, 2005); see also Scott Matson & Roxanna Lieb, Community Notification in Washington State: 1996 Survey of Law Enforcement 16 (1996), available at http://www.wsipp.wa.gov/rptªles/sle.pdf (last visited Mar. 15, 2005) (pointing out that “communities can be unpredictable in their reactions towards sex offenders”).
P-387-388: (Vigilantism Theme) Sanctions that target offenders are frequently conducted by groups rather than individuals, reflecting a “lynch mob attitude.”153 Group-based non-legal sanctions are another indicator that signaling behavior is at work. Such participation in sanctioning offenders is driven by a need to conform to the norms of the group rather than by an individual decision to protect oneself from future harms.154
Finally, it should be noted that the acts of violent vigilantism suffered by sex offenders are consistent with punitive rather than preventative non-legal sanctions. Since the adoption of SORNLs, sex offenders have been subjected to threats,155 vandalism of their property,156 physical assaults, 157 and gunshots.158 Despite the fact that these acts are relatively rare,159 they are still a signifcant sanction from the perspective of potential offenders since they have such serious consequences.
In sum, the various characteristics of non-legal sanctions generated by SORNLs suggest a social mechanism concerned not merely with precautionary measures. This conclusion is also supported by the only available systematic study of the non-legal sanctions incurred by sex offenders as a result of SORNLs. This study reported that eighty-three percent of offenders were excluded from their place of residence and that over fifty percent were terminated from their place of employment.160 These large numbers reflect a general sanctioning norm to which sex offenders are subject.
153: See Dugan, supra note 95, at 618; Amy L. Van Duyn, Note, The Scarlet Letter Branding: A Constitutional Analysis of Community Notiªcation Provisions In Sex Offender Statues, 47 Drake L. Rev. 635, 650 (1999).
154: See Posner, Social Norms, supra note 3, at 93 (noting that “[t]he reason that people join mobs is that it is better to be a member of a mob than its target”).
155: See, e.g., New Jersey Public Defender Brief, supra note 146, at 7 (reporting that an offender received a letter with a message made of newspaper clippings saying, “[w]e’ll be watching you asshole”); id. at 9 (reporting that a man told an offender, “[s]top fucking little girls. I’m going to kill you,” and that the offender was attacked by another man armed with a gun wearing a ski mask who told him, “[i]f you don’t get out of this neighborhood I’m going to kill you”); Small, supra note 9, at 1466 (reporting death threats made against the sister-in-law of an offender).
156: See, e.g., New Jersey Public Defender Brief, supra note 146, at 11 (describing a series of incidents including placing human feces on the steps of an offender’s home, slashing the tires of an offender’s car, and destroying offenders’ mailboxes); Small, supra note 9, at 1466 (describing a case in which the car of the offender was vandalized); Zevitz & Farkas, supra note 148, at 383 (same); Jenny A. Montana, Note, An Ineffective Weapon in the Fight Against Child Sexual Abuse: New Jersey’s Megan’s Law, 3 J. L. & Pol’y 569,579 (1995) (noting the case of Joseph Gallardo, a Washington sex offender whose house was burned down).
157: See, e.g., Doe v. Pataki, 940 F. Supp. 603, 610 (S.D.N.Y. 1996) (describing an incident in which an offender was punched in the face); New Jersey Public Defender Brief, supra note 146, at 8–9 (describing an incident in which two men broke into an offender’s residence and attacked a man they mistook for the offender and an incident in which an offender was struck with a crowbar).
158: See, e.g., Robert Hanley, Neighbor Admits Firing Gun Into Home of Paroled Rapist, N.Y. Times, Nov. 10, 1998, at B8 (reporting the case of a shooting at the house of a sex offender in Linden, New Jersey).
159: See Matson & Lieb, supra note 151, at 15 (reporting that 3.5% of offenders report cases of harassment); Zevitz & Farkas, supra note 148, at 381 (reporting that in only three percent of cases did sex offenders report acts of vigilantism).
160: See Zevitz & Farkas, supra note 148, at 381.
P-390: (Psychological Effects) From an economic perspective, SORNLs seem to create a problem of marginal deterrence, since in many cases they deprive offenders of the opportunity to regain new social capital. Although SORNLs do not attach a physical mark to sex offenders as did branding punishments in eighteenth century England or scarlet letter punishments in colonial times, they are relatives of such schemes. SORNLs attach specific information to sex offenders in such a way that this information becomes a part of their identity. This information causes detrimental consequences, including loss of housing, disruption of personal relationships, and loss of employment.175
Thus, sex offenders subject to SORNLs find themselves with little social capital and do not feel very threatened by the possibility of future non-legal sanctions. In fact, it has been reported that some offenders have chosen to return to prison since that is their only housing option.176 In extreme cases, SORNLs have made sex offenders feel that they literally have nothing to lose, and they end up committing suicide as a direct result of notification.177 These cases reflect a potentially fatal weakness in a deterrence system, since there is most likely no threat that the law can use in order to deter individuals who are willing to commit suicide.178
175: See supra Part II.C.
176: See Zevitz & Faraks, supra note 148, at 382.
177: See, e.g., New Jersey Public Defender Brief, supra note 146, at 19–21 (describing numerous incidents of offenders committing suicide as a result of notiªcation); Associated Press, Suicide Is Recalled as Maine Revisits Megan’s Law; Released Sex Offender Shot Himself After Neighborhood Notiªcation, Wash. Post, Feb. 17, 1998, at A2 (reporting on an offender committing suicide just two days after notiªcation); Todd S. Purdum, Death of Sex Offender Is Tied to Megan’s Law, N.Y. Times, July 9, 1998, at A16 (reporting two separate incidents of offenders committing suicide after notiªcation).
The link between shaming sanctions and suicide is not unique to SORNLs or to American culture. See, e.g., John Beattie, Other Cultures; Aims, Methods, and Achievements in Social Anthropology 176 (1964) (reporting that shame caused suicide
among Tobriand Islanders); Braithwaite, supra note 68, at 138 (noting that cases of
suicide due to corporate malpractice are common in Japan); Persons, supra note 11, at
1527 (reporting the case of a patron of a prostitute who committed suicide after his name was published in a newspaper as part of a shaming scheme).
178: See Alan M. Dershowtiz, Why Terrorism Works: Understanding the Threat, Responding to the Challenge 29 (2002) (pointing out that in the context of suicide bombers “the usual deterrent strategy of threatening death to the perpetrator will not work”).
P-403-404: (Cruel & Unusual / Punishment Theme) Sex offenders challenge the validity of SORNLs on other constitutional grounds as well, arguing that they are unconstitutional inflictions of cruel and unusual punishment.265 Similar arguments have been made by legal scholars, who tend to focus their attention on the vigilante attacks facilitated by SORNLs.266 Thus far, since the majority of courts have found that SORNLs do not constitute punishment, they have necessarily rejected claims that SORNLs constitute cruel and unusual punishment.267 Under the punitive approach to SORNLs, these laws generally should not be considered cruel and unusual punishment. Despite their harsh effects on offenders, there seems to be no reason to view SORNLs’ sanctions as exceptionally cruel, especially when compared to the alternative sanction of imprisonment. 268
Nonetheless, there may be specific types of public shaming that could be viewed as cruel and unusual punishment in that they contradict the common morals of society.269 Such values are based on a variety of theories, such as human dignity or the disutility caused to the general public by the humiliation of a fellow community member. For instance, one may argue that the provisions of the Louisiana SORNL authorizing courts to order offenders to wear T-shirts and post signs outside their homes indicating their status as sex offenders represent an unacceptable form of humiliation. Evaluating which types of notification are unacceptable should be done on a case-by-case basis and is beyond the scope of this Article.
265: See, e.g., Cutshall v. Sundquist, 193 F.3d 466, 472–83 (6th Cir. 1999). The Eighth Amendment provides that “[e]xcessive bails shall not be required, nor excessive ªnes imposed, nor cruel and unusual punishment inºicted.” U.S. Const. Amend. VIII.
266: See, e.g., Bedarf, supra note 55, at 936–39 (arguing that SORNLs constitute cruel and unusual punishment because they are degrading); Michele L. Earl-Hubbard, The Child Sex Offender Registration Laws: The Punishment, Liberty Depravation, and Unintended Results Associated with the Scarlet Letter Laws of the 1990s, 90 Nw. U. L. Rev. 788, 820–26 (1996) (arguing that SORNLs constitute cruel and unusual punishment because vigilante acts are a foreseeable result of such laws); Andrea L. Fischer, Florida’s Community Notification of Sex Offenders on the Internet: The Disregard of Constitutional Protection for Sex Offenders, 45 Clev. St. L. Rev. 505, 523–30 (1997); G. Scott Rafshoon, Community Notiªcation of Sex Offenders: Issues of Punishment, Privacy, and Due Process, 44 Emory L. J. 1633, 1668–71 (1995). But see Houston, supra note 36, at 747–56 (arguing that SORNLs are a legitimate way to promote public safety and do not constitute cruel and unusual punishment).
267: See, e.g., Cutshall, 193 F.3d at 477. But see In re Reed, 663 P.2d 216, 222 (Cal. 1983) (Finding that requiring a defendant convicted of soliciting lewd or dissolute conduct to register as a sex offender constitutes cruel and unusual punishment under the California Constitution). Recently, the California Supreme Court overruled Reed in In re Leon Casey Alva, 92 P.3d 311, 312 (Cal. 2004). However, one should note that the discussion in Alva was limited to the question of whether registration constitutes cruel and unusual punishment. See id. at 313. Thus, it is still unclear whether the enactment of a widespread notiªcation program is constitutional under California law.
268: See supra notes 72–75 and accompanying text.
269: Courts have generally held that the Eighth Amendment creates a moral limitation on the types of punishments that can be used. See, e.g., Trop v. Dulles, 356 U.S. 86, 100 (1958) (stating that the basic principle underlying the Eighth Amendment is human dignity); Weems v. United States, 217 U.S. 349, 378 (1910) (explaining that the Eighth Amendment “may acquire meaning as public opinion becomes enlightened by a humane justice”).
P-408-409: (Term of Registration and Notification) One point of contention regarding SORNLs involves the duration of registration and notification. The Jacob Wetterling Act requires offenders who are either convicted of aggravated offenses or have multiple convictions to register for life without exception.291 Furthermore, since the Jacob Wetterling Act only establishes minimum requirements, some states have created harsher rules and require all offenders to register for life with no possibility of relief.292 This type of sanctioning is undesirable from the perspective of marginal deterrence since it threatens offenders with a life of stigmatization and a diminished possibility of reacquiring social capital. As one offender stated before committing suicide, “I have no hope . . . . What is left for me? I will be subject to Megan’s Law for the rest of my life.”293 A policy sensitive to marginal deterrence considerations would allow for the removal of offenders from the registry after a specific period of time that reflects a socially desired level of sanctioning. Purging one’s name from the registry could be contingent on meeting certain requirements, such as clean police records, that would motivate offenders to refrain from criminal activity.294 Creating a finite registration and notification period would give offenders something to lose by re-offending and would enable policymakers to utilize non-legal sanctions to deter future crimes.295
The case for a finite registration and notification period may be phrased in constitutional terms. The Supreme Court has yet to make a clear connection between the concept of marginal deterrence and the Eighth Amendment. Nevertheless, in several cases in which the Court was willing to strike down punishments, its decisions appear to have been at least partially driven by marginal deterrence intuitions. This can be seen in the way the Court has read a proportionality requirement into the Eighth Amendment’s prohibition on cruel and unusual punishment.296 For example, in Coker v. Georgia, the Supreme Court struck down on proportionality grounds a Georgia law allowing the imposition of the death penalty on rapists.297 Although the court did not ground its ruling in a marginal deterrence theory, the decision is consistent with such a theory of punishment. Imposing the death penalty on rapists would give rapists an incentive to kill their victims, since by doing so they could reduce the possibility of detection with no risk of a harsher sentence.298
Similarly, some of the concerns of courts regarding three-strike laws can be framed in terms of marginal deterrence. Under these laws, offenders convicted for the third time of certain crimes are subject to harsh mandatory sanctions.299 For instance, in Solem v. Helm, the Supreme Court evaluated a sentence of life without the possibility of parole imposed on a repeat offender convicted of issuing a no-account check for $100.300 The Court struck down the punishment, finding it was disproportionate to the crime.301 Again, despite the fact that the Court did not base its decision on marginal deterrence grounds, one can point to a connection between the theory and the Court’s holding. A sanctioning regime that imposes harsh mandatory sanctions for crimes of widely varying degrees erodes marginal deterrence.
A two-strike offender who faces the same sanction for shoplifting a videotape as for armed robbery may opt for the latter if his expected payoff from the latter crime is higher.
291: 42 U.S.C. § 14071(b)(6)(B) (2000). The Final Guidelines make clear that “[a] state is not in compliance with subsection (b)(6)(B) (i) or (ii) if it has a procedure or authorization for terminating the registration of convicted offenders within the scope of these provisions at any point in their lifetimes.” The Final Guidelines, supra note 105, at 582.
292: See Mo. Rev. Stat. § 589.400.3 (2000 & Supp. 2004) (setting out lifetime registration for all offenders); S.C. Code Ann. § 23-3-460 (Law. Co-op. Supp. 2004) (same).
293: See New Jersey Public Defender Brief, supra note 146, at 22.
294: Some states have opted for such a regime. For example, the Florida SORNL provides for judicial review of the registration requirement twenty years after the initial registration. Fla. Stat. ch. 943.0435(11)(a) (2004). However, since this provision is subject to the constraints of the Jacob Wetterling Act, offenders in Florida cannot currently ask for such relief.
295: The mere fact that registration ends will not necessarily end non-legal sanctions since the community will continue to hold the information that was disseminated by the SORNL. Nevertheless, the moment that registration is no longer required, the offender has the opportunity to move to a different community and start a new life without non-legal sanctions.
296: See Weems v. United States, 217 U.S. 349, 367 (1910) (“[P]unishment for crime
should be graduated and proportioned to offense.”).
297: See 433 U.S. 584, 592 (1977) (concluding that “a sentence of death is grossly disproportionate and excessive punishment for the crime of rape and is therefore forbidden by the Eighth Amendment as cruel and unusual punishment”). It should be noted that Coker does not represent a complete ban on imposing the death penalty on sexual crimes that do not involve murder. See Louisiana v. Bethley, 685 So. 2d 1063 (La. 1996) (upholding a Louisiana statute allowing the death penalty when the victim of a rape was less than twelve years of age); cert. denied, Bethley v. Louisiana, 520 U.S. 1259 (1997).
298: This conclusion presupposes that law enforcement agencies devote equal resources
to the investigation of rapes in which the victims are murdered as to those in which they are not. If law enforcement agencies in fact increase their efforts in murder cases, the rapist may still have an incentive to avoid murdering his victim.
299: For a comparative description of these laws, see John Clark et al., U.S. Dep’t of Justice, Three Strikes and You’re Out: A Review of State Legislation 6–12 (1997).
300: See 463 U.S. 277, 281–83 (1983).
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