Lara Abigail Bazelon
Abstract: Shaming sanctions have a long history in the United States. In the colonial era, judges routinely subjected criminal offenders to a variety of public humiliations that included branding and even maiming. These punishments were designed to exact retribution, deter future misdeeds, and to impress upon the offender the importance of adhering to community norms. Shaming sanctions largely disappeared in the early 1800s with the rise of the prison industrial complex, only to reappear in courtrooms across the country in the early 1990s, when trial judges began to demand that offenders write public apologies, mop streets they had desecrated, and wear signs proclaiming their offenses to the world.
Now a new shame sanction is on the horizon with a wholly unexpected cast of characters. The shamers are federal appellate judges; the shamed are prosecutors who vigorously defend criminal convictions that are infected by state-sanctioned misconduct. At stake are the reputation of the prosecutor’s office and the outcome of the case. The federal judges have no legal means of granting relief because of a statute that bars overturning state court judgments except under the most extreme circumstances. Hands tied, the judges turn oral argument into a public theatre in which they deploy shaming sanctions against prosecutors in live-streaming video that is later posted to YouTube and watched by thousands if not tens of thousands of people. In these arguments, the judges use moral condemnation to attempt to persuade the prosecution that its position is morally abhorrent.
This article explores the use of this new shaming sanction from an ethical and efficacy perspective, asking if it is a proper use of judicial authority and more practically, if it works. The Article draws three conclusions based on a small sample of cases. First, that as judges grow more social-media savvy and video-streaming oral arguments becomes a more common practice, this shaming sanction will likely continue. Second, the efficacy of the sanction depends upon the ability of the lawyers to publicize the oral argument so that it reaches the greatest number of viewers possible. It is only when the moral outrage become a matter of public knowledge that the prosecutor’s office is likely to reconsider its position because of mounting political pressure. Finally, while shaming sanctions are arguably “extra-judicial” in that they are not rooted in legal doctrine, there is nothing unethical about using them. To the contrary, the Article concludes that by shaming prosecutors in this particular, case-specific way, federal judges are carrying out their essential mandate: to protect the individual – however powerless and despised – against the abuse of authority by the State.