Michael L. Perlin
New York Law School
New York State Unified Court System - Mental Hygiene Legal Service
January 17, 2014
This paper considers the intersection between law, humiliation and shame, and how the law has the capacity to allow for, to encourage, or (in some cases) to remediate humiliation, or humiliating or shaming behavior. The need for new attention to be paid to this question has increased exponentially as we begin to also take more seriously international human rights mandates, especially – although certainly not exclusively – in the context of the recently-ratified United Nations Convention on the Rights of Persons with Disabilities, a Convention that calls for “respect for inherent dignity,” and characterizes "discrimination against any person on the basis of disability [as] a violation of the inherent dignity and worth of the human person..."
Humiliation and shaming, we believe, contravene basic fundamental human rights and raise important constitutional questions implicating the due process and equal protection clauses. Humiliation and shaming practices include “scarlet letter”-like criminal sanctions, police stop-and-frisk practices, the treatment of persons with mental disabilities in the justice system, and the use of sex offender registries. Humiliation and shame are detrimental in the ways that lead to recidivism, inhibit rehabilitation, discourage treatment, and injure victims. They also directly contravene the guiding principles of therapeutic jurisprudence, especially in the context of its relationship to the importance of dignity in the law, and potentially violate international human rights law principles as well.
In this paper, we will explore how humiliation and shaming are bad for all participants in the legal system, and bad for the law itself. We will urge that humiliating and shaming techniques be banned, and that, this ban will enhance dignity for the entire legal system and society as a whole. First, we consider the meaning of shame and humiliation. Then, we briefly discuss principles of therapeutic jurisprudence (TJ) and its relationship to the significance of dignity, and then consider recent developments in international human rights law, both of which are valuable interpretive tools in this conversation. Next, we consider how the United States Supreme Court has considered these concepts in recent cases. Following this, we consider several relevant areas of law and policy from the perspective of how overt shaming is employed: scarlet letter punishments, use of the police power, treatment of institutionalized persons with mental disabilities and elders, and sex offender registry law. We then, using a TJ filter and drawing on international human rights law principles, examine why these shaming tactics are contrary to bedrock principles of the legal system: the mandates to honor dignity, to minimize recidivism, and to enhance rehabilitation.