The Case

On October 8, 2020, PhD researchers Megan Brownlee, an American attorney, and Malouke Kuiper, a Dutch legal psychologist, both affiliated with the “C-LAB”, filed the brief seeking to present the Montana Supreme Court with empirical evidence to evaluate the legality of a shaming sentence issued in a criminal proceeding.

A Brief of Amicus Curiae, commonly referred to as a “friend of the court” brief, is filed by an interested non-party, and seeks to provide the court with information or expertise on issues relevant to the case. The C-LAB’s goal in producing the brief was to provide the court with objective empirical research about the effect of the shaming punishment ordered by the trial court judge.

This case involved two unrelated criminal defendants falsely claiming that they were United States military veterans in an attempt to receive more favorable sentences in their criminal cases. After learning of this, the trail court judge sentenced the defendants to appear at Memorial Day and Veterans Day events wearing signs reading: “I am a liar. I am not a veteran. I stole valor. I dishonored all veterans.”

The Legal Framework and Argument

Malouke Kuiper and Megan Brownlee began developing the brief after coming into contact with the defendant’s attorney, who was seeking to show the Montana Supreme Court that the sentence did not advance the defendants’ rehabilitation. Brownlee, a former criminal defense lawyer, developed the legal outline for the brief, while Kuiper served as a psychological expert, compiling empirical social science evidence to give the court an objective basis to evaluate the sentence.

In this brief, the C-LAB researchers evaluated the legality of the sentence under the United States and Montana State prohibitions against cruel and unusual punishment.[1] To analyze the constitutionality of the sentence, the researchers had to use United States Supreme Court Precedent to persuade the court that the sentence: (1) was not in line with evolving standards of decency,[2] (2) did not advance a legitimate penological interest,[3] and (3) subjected defendants to a risk of physical or psychological harm.[4]

Analysis Step One: Evolving Standards of Decency

The first step in the analysis was to evaluate the constitutionality of the sentence under the evolving standards of decency analysis. C-LAB researchers were thus tasked with showing the court how the trial court sentence did not conform with modern American ideals of criminal punishment. To do so, they first identified how this shaming sentence was similar to sentences rendered in colonial America. Next, they outlined how acceptable criminal justice sentiment in colonial America was not representative of modern American values.

Although there are very few cases outlining the legality of shaming sentences in the United States, the researchers were able to find dicta[5] from the Supreme Court of the United States, recognizing that shaming sentences, heavily associated with the colonial period,[6] were developed with the intent to inflict permanent stigmas[7] on the offender, and effectively “cast the [offender] out of the community.”[8] Moreover, while few states have upheld the legality of shaming sentences, the researchers were also able show the court that most states have found shaming sentences unlawful.

Analysis Step Two: Valid Penological Goals

The next step in the analysis was to evaluate whether the sentence advanced a valid penological goal. The Supreme Court of the United States has outlined that, for a punishment to be legal, it must be reasonably related to a legitimate penological interest, namely: retribution, incapacitation, rehabilitation, specific deterrence, or general deterrence.[9] As the United States has found that retribution alone may not be the sole justification for punishment, the researchers did not need to analyze the sentence with regard to the penological goal of retribution.[10] Likewise, as the sentence in this case was associated with the defendant’s parole, it was not necessary to analyze incapacitation.

Therefore, the researchers focused the analysis on whether the shaming sentence advanced general deterrence, specific deterrence, and rehabilitation.  

General deterrence is the assumption that a punishment will discourage possible future offenders from committing crimes out of fear that they will receive the punishment given to other offenders.[11] Researching the general deterrent effect of a shaming punishment was challenging, as the empirical research on this topic is inconclusive.[12] The claim that stigmatic sentences should work as a general deterrent presents two problems. First, this assumes that punishment generally will deter people from committing crime;[13] extensive research shows that this is not the case. Deterrence is a complex and subjective mechanism.[14] For example, research has shown it is not the severity of punishment alone, but the certainty of punishment that is crucial to achieve deterrence.[15] Second, the efficacy of general deterrence assumes that a potential offender actually makes a cost-benefit analysis before committing a crime.[16] The research that conflicts with this idea is exhaustive, and clearly contradicts the assumption that people engage in rational thinking when violating the law.[17] For example, research shows that low self-control is a strong indicator of deviant behavior,[18] and people with lower levels of self-control are less responsive than others to the costs of their criminal behavior. [19] Thus, C-LAB researchers concluded that the assumption that shaming will have a general deterrent effect is not supported by social scientific research.

Specific deterrence is the idea that a punishment will discourage the punished offender from committing further crimes out of fear that they will receive the same, or a more severe, penalty in the future.[20] Similar to how shaming is unlikely to achieve general deterrence, it is likewise unlikely to achieve specific deterrence.[21] Specific deterrence is also closely linked to rehabilitation, as both have the goal to prevent the offender from reoffending.[22]

Rehabilitation assumes that the offender has identifiable and treatable problems causing criminal behavior, and attempts to reduce the offender's future criminality by addressing those issues.[23] The trial court’s assumption in issuing the shaming sentence to defendants in this case was that shame will result in rehabilitation, as the defendants would avoid the disapproved criminal behavior in the future. This assumption is incorrect and problematic. First, the relationship between shaming and rehabilitation is highly complex,[24] and consists of multiple factors: (1) the act of shaming, (2) emotions following the act, and (3) resulting behaviors. Further, a shaming sentence does not automatically produce the emotion of shame. It could also elicit other negative emotions such as anger, and where shaming elicits anger, the probability of future criminality increases.[25] However, even where the act of shaming leads to shame as an emotion, it is unclear what the shamed person’s behavioral response will be.

In the brief, C-LAB researchers addressed several studies and theories showing the complexity of shaming. For example, a study conducted with jail inmates found that shame positively predicted recidivism via its link to externalization of blame; when shame did not lead to externalization of blame, it was negatively linked to recidivism.[26] This study essentially illustrated how complex and unpredictable the behavioral responses to shaming can be, and that shaming could lead to an increased chance of recidivism. In conclusion, C-LAB researchers argued that the complexity and unpredictability of shaming shows that a rehabilitative outcome is highly uncertain, and shaming could even lead to an increased chance of recidivism.

Overall, the researchers concluded that there is no conclusive empirical support for the claim that a stigmatic shaming sentence advances any valid penological goal.

Analysis Step Three: Risk of Physical/Psychological Harm

The final step in the analysis was to attempt to convince the court that the shaming sentence subjected defendants to a risk of physical or psychological harm. The United States Supreme Court has established that the state has an obligation to care for the safety of the offenders within its custody.[27] Researchers therefore argued that sentencing the defendants to wear signs identifying them as “liars” who “dishonored veterans” at two, presumably well attended, veteran holiday events invited confrontation, subjecting them to a risk of physical harm. More importantly, using case law establishing that psychological harm can constitute cruel and unusual punishment,[28] researchers were able to present clinical psychological literature to make a more definitive argument. C-LAB researchers were able to show the court that shaming can lead to a range of psychological problems. Specifically, they found that shame was highly associated with depressive symptoms,[29] and related to psychological symptoms including but not limited to post-traumatic stress disorder and suicidal ideation.[30]

Obstacles in the Process: A Gap Between Legal Practice and Social Science

Researching and writing the argument presented several challenges. The first difficulty encountered was the tone of the argument; while social scientists are reticent, and cautious, in making absolute claims, lawyers are trained to present definitive arguments.[31] Consequently, it was difficult to find a balance between a persuasive legal argument, and a nuanced scientific argument.

The second difficulty was the difference in expertise between social scientists and legal practitioners. Lawyers do not often possess the statistical skills that are standard in social sciences,[32] which made it difficult to present empirical evidence to a legal audience.  The researchers had to simplify the empirical research to be understandable, but also be careful to not lose nuanced conclusions and important details.[33]

Third, the fragmented nature of empirical research, especially with regard to shaming as a criminal punishment, made it difficult to find robust and relevant evidence to build the argument.[34] These difficulties are illustrative of the differences, or even a gap, between criminal legal practice and application of social science.

Next Steps

While the Montana Supreme Court has not rendered a decision on the case, the case has received national media attention and the defendants developed a strong legal defense team. The researchers worked collaboratively with the defendants’ appellate defense attorney, and attorneys from the American Civil Liberties Union, who also submitted an amicus brief in support of the defendants. Although the defendants are American citizens charged with low-level non-violent offenses, they were able to secure an international, interdisciplinary, legal team to dispute the constitutionality of their sentences.

Ultimately, the researchers were able to apply C-LAB subject matter expertise, and work with legal practitioners in an attempt to correct issues in behavioral law. In working to blend legal practice with empirical social scientific research, the amicus brief exemplified the mission of the C-LAB, which reads: “The C-LAB seeks to produce and disseminate empirical knowledge about law and behavior, and be the premier institute for academic and practical questions about the functioning of law and legal institutions, and the way people respond to the law.”[35] Both researchers hope that this is the first brief of many, and aim to continue to work with legal practitioners to apply social scientific research to questions of behavioral law.

Footnotes

[1] U.S. Const. amend. VIII; Mont. Const. art. II, § 22.x
[2] Trop v. Dulles, 356 U.S. 86, 100-101 (1958).
[3] Ewing v. California, 538 U.S. 11, 11-12 (2003).
[4] Farmer v. Brennan, 511 U.S. 825 (1994).
[5] Non-binding court analysis.
[6] Smith v. Doe, 538 U.S. 84, 97 (2003). 
[7] Smith v. Doe, 538 U.S. 84, 98 (2003). 
[8] Smith v. Doe, 538 U.S. 84, 98 (2003). 
[9] Ewing v. California, 538 U.S. 11, 25 (2003).
[10] See Furman v. Georgia, 408 U.S. 238, 343 (1972) (Marshall, J. concurring), (citing Trop, 356 U.S. at 111 (Brennan, J., concurring) (“The fact that the State may seek retribution against those who have broken its laws does not mean that retribution may then become the State's sole end in punishing ... Retaliation, vengeance, and retribution have been roundly condemned as intolerable aspirations for a government in a free society”)); Williams v. People of State of N.Y., 337 U.S. 241, 248 (1949) (“Retribution is no longer the dominant objective of the criminal law…”). 
[11] Richard S. Frase, Punishment Purposes, 58 Stan. L. Rev. 67, 70-71 (2005) (citing Frank E. Zimring & Gordon J. Hawkins, Deterrence: The Legal Threat in Crime Control 72-73 (1973)).
[12] Bonnie Mangum Braudway, Scarlet Letter Punishments for Juveniles: Rehabilitation Through Humiliation, 27 Campbell L. Rev., 63 (2004); Alicia Harden, Rethinking The Shame: The Intersection of Shaming Punishments and American Juvenile Justice, 16 UC Davis J.Juv. L. & Pol'y, 93 (2012); Dan Kahan, What Do Alternative Sanctions Mean?, 63 U. Chi. L. Rev. 591, 632 (1996).
[13]Bonnie Mangum Braudway, Scarlet Letter Punishments for Juveniles: Rehabilitation Through Humiliation, 27 Campbell L. Rev. 63 (2004).
[14] Robert Apel, Sanctions, Perceptions, and Crime: Implications for Criminal Deterrence. 29 Journal of Quantitative Criminology 67 (2013); Scott Decker, Richard Wright & Robert Logie, Perceptual Deterrence Among Active Residential Burglars: A Research Note, 31 Criminology 135 (1993).
[15] Daniel Nagin, Deterrence in the Twenty-First Century, 42 Crime and Justice 199 (2013).
[16] Bonnie Mangum Braudway, Scarlet Letter Punishments for Juveniles: Rehabilitation Through Humiliation, 27 Campbell L. Rev. 63 (2004).
[17] Chris Guthrie, Prospect Theory, Risk Preference, and The Law, 97 Nw. U. L. Rev. 1115 (2002); Gary Schaub Jr., Deterrence, Compellence, and Prospect Theory, 25 Political Psychology 389 (2004).
[18] Michael Gottfredson & Travis Hirschi, A General Theory of Crime (1990); Travis Pratt and Francis Cullen, Assessing Macro-Level Predictors and Theories of Crime: A Meta-Analysis, 32 Crime and Justice 73 (2005); Travis Pratt and Francis Cullen, The Empirical Status of Gottfredson and Hirschi’s General Theory of Crime: A Meta-Analysis, 38 Criminology 931 (2000); Alexander Vazsonyi, Jakub Mikuška, & Erin Kelley, It’s Time: A Meta-Analysis on the Self-Control – Deviance Link, 48 Journal of Criminal Justice 48 (2017).
[19] Bradley Entner Wright, Avshalom Caspi, Terrie Moffitt, & Ray Paternoster, Does the Perceived Risk of Punishment Deter Criminally Prone Individuals? Rational Choice, Self-Control, and Crime, 41 Journal of Research in Crime and Delinquency 180 (2004).
[20] Richard S. Frase, Punishment Purposes, 58 Stan. L. Rev. 67, 70-71 (2005) (citing Frank E. Zimring & Gordon J. Hawkins, Deterrence: The Legal Threat in Crime Control 72-73 (1973)).
[21] Alicia Harden, Rethinking the Shame: The Intersection of Shaming Punishments and American Juvenile Justice, 16 UC Davis J.Juv. L. & Pol'y, 93 (2012).
[22] David Altschuler, Tough and Smart Juvenile Incarceration: Reintegrating Punishment, Deterrence and Rehabilitation, 14 Louis U. Pub. L. Rev. 217, 219 (1994).
[23] Richard S. Frase, Punishment Purposes, 58 Stan. L. Rev. 67, 70-71 (2005) (citing Frank E. Zimring & Gordon J. Hawkins, Deterrence: The Legal Threat in Crime Control 72-73 (1973)).
[24] Toni Massaro, The Meanings of Shame: Implications for Legal Reform, 3 Psychology, Public Policy, and Law 645 (1997).
[25] June Tangney, Patricia Wagner, Deborah Hill-Barlow, Donna Marschall & Richard Gramzow, Relation of Shame and Guilt to Constructive Versus Destructive Responses to Anger Across the Lifespan, 70 Journal of Personality and Social Psychology 797 (1996).
[26] June Tangney, Jeffrey Stuewig and Andres Martinez, Two Faces of Shame: The Roles of Shame and Guilt in Predicting Recidivism, 25 Psychological Science 799 (2014).
[27] See Farmer v. Brennan, 511 U.S. 825 (1994).
[28] Weems v. United States, 217 U.S. 349, 372 (1910). 
[29] Kim Sangmoon, Ryan Thibodeau, & Randall Jorgensen, Shame, Guilt, and Depressive Symptoms: A Meta-Analytic Review, 68 Psychological Bulletin 137 (2011). 
[30] June Price Tangney and Ronda L Dearing, Shame and Guilt, (2003); June Tangney, Jeffrey Stuewig and Debra Mashek, Moral Emotions and Moral Behavior, 58 Annu. Rev. Psychol. 345 (2007). 
[31] Engel, C (2011). The difficult reception of rigorous descriptive social science in the law. In Stehr, N. and Weiler B (Eds.), Who owns knowledge? Knowledge and the law (169-213). New Brunswick: Transaction Publishers. 
[32] Engel, C (2011). The difficult reception of rigorous descriptive social science in the law. In Stehr, N. and Weiler B (Eds.), Who owns knowledge? Knowledge and the law (169-213). New Brunswick: Transaction Publishers.
[33] Jeremy A. Blumenthal, Law and Social Science in the Twenty-First Century, 12 S. Cal. Interdisc. L.J. 1 (2002).
[34] Frans L. Leeuw, Empirical Legal Research The Gap between Facts and Values and Legal Academic Training, 11 Utrecht L. Rev. 19 (2015).
[35] https://c-lab.uva.nl/about/about-c-lab.html