Anger and Forgiveness

by Martha C. Nussbaum

  tive status, especially when it leads to practices of humiliation.

  If public principles eschew down- ranking, it follows that punish-

  ments, to the extent that we rely on them, should eschew humiliation.

  Obviously a good society that wishes to avoid humiliating people should

  begin in childhood, with policies for housing, schools, and so forth.

  Criminal punishment, as before, comes too late. But to the extent that it is

  used, society must not simply mouth the slogan, “No cruel and unusual

  punishment,” but must really try to make punishment non- humiliating.

  Alternative sanctions such as community service are useful here, but pris-

  ons themselves can be something other than a constant source of humili-

  ation and shame, as cross- national comparisons show. European prisons,

  by and large, are much more dignified places than U.S. prisons (apart

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  from white- collar prisons). If the United States were not determined to

  incarcerate on flimsy grounds, thus incarcerating a huge number of peo-

  ple, it would have a much easier time providing decent conditions.

  Can incarceration ever be respectful of dignity? It’s hard to say, given

  the distance between current practices and really respectful practices. But

  here are some of the things prisoners have a right to, which go toward

  making prison non- humiliating. Even in the United States, they have

  rights to clean facilities and decent plumbing. They typically have rights

  to some forms of personal property (photos, mementos). Importantly,

  they have the right to get married, even when serving life terms.54 Some

  judges would like to see prisoners’ personal privacy and modesty pro-

  tected better than currently.55 In Europe, prisoners typically retain their

  basic civil rights, including the right to vote and welfare rights. Many are

  also permitted to work outside the prison and to visit their families. Such

  practices need to be studied to see whether they remove the idea that

  temporary incapacitation entails a loss of basic human dignity.56

  Nor should society accept the invitation to reintroduce punishments

  explicitly based upon public humiliation— once very common in his-

  tory, where the penal tattoo or brand and the scarlet letter are famous.57

  Sometimes these contemporary shame punishments are offered as alter-

  natives to incarceration, in which case they are just different forms of

  humiliation, and perhaps a tiny bit more attractive, given the current

  conditions in prisons, at least in the United States. But typically they

  are proposed as alternatives to fines and community service for lighter

  offenses, on the grounds that they better express society’s desire to

  down- rank the offender. Community service, by contrast, it is alleged,

  gives people something good to do and can create personal pride and

  confidence— which Dan Kahan, the main theorist of shame penalties,

  finds incompatible with the expression of society’s core moral values.58

  So let’s consider shame penalties as alternatives to community service,

  since that is Kahan’s focus.

  The deliberate infliction of stigma (in the form of signs, placards, etc.)

  upon people who commit (typically) nonviolent offenses such as solicita-

  tion, public urination, or drunk driving is objectionable for a number of

  reasons.59 First, it assails dignity in a very painful way, and a way that

  is unacceptable on grounds of basic justice even if it is not felt as pain-

  ful. My type of welfarism, as I’ve emphasized, makes the protection of

  dignity and the social conditions of self- respect an intrinsic value, thus

  entailing that we reject state- administered degradation of citizens even

  were it to be very effective in deterring crime. (As we shall see, it is not.) Second, punishments based upon shaming issue an invitation, in

  effect, to mob vindictiveness: the sign or placard is ordered by the court,

  but the punishers are the mass of citizens, who jeer and inflict shame;

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  thus these punishments gratify the wish of the majority to down- rank

  and stigmatize certain unpopular types of people. It is normatively prob-

  lematic for a society based on an idea of impartiality and the rule of law

  to turn punishment over to such biased and un- lawlike forces.

  Third, as we might expect, and as history shows,60 such tenden-

  cies quickly get out of hand, migrating from truly harmful acts to mere

  unpopular ways of being: thus, in many times and places, religious and

  sexual minorities have been targeted for stigma and branding.61 Giving

  the mob the ability to confer a “spoiled identity” is an open invitation to

  a type of bullying that is all too common. This migratory tendency also

  indicates that shame- based penalties will not really deter crime, since

  they will not (or not primarily) target real criminals. And they send a

  signal to society at large that stigmatized identities, rather than serious

  crimes, are salient targets of the criminal justice system.

  Fourth, shame- based penalties encourage retaliatory anger. One of

  the problems the Eumenides had to deal with was the unending nature

  of anger, which keeps cycling back again in a new generation. So with

  stigma and shaming: James Gilligan’s excellent empirical study of vio-

  lence shows that such punishments actually increase violence in society,

  by increasing the tendency of criminals to self- define as outlaws and to

  bond with other outlaws to retaliate against society. They are therefore

  extremely bad deterrents.62

  Finally, such penalties lead to what criminal law theorist Stephen

  Schulhofer, and others, call “net- widening”: that is, to simply increas-

  ing the amount of punishment in society. Because they appear less harsh

  than incarceration, they are often substituted for either outright release

  or parole, thus simply increasing the amount of “hard treatment” in

  society.63 We have reason to think that this net-widening, which is very

  expensive, is bad for the deterrence of really serious crimes.

  Three of my five arguments against penalties based on shaming are

  empirical, supporting the contention that they are not good deterrents.

  (The third argument pertains to both specific and general deterrence, the

  fourth and fifth primarily to specific deterrence.) Only the first and sec-

  ond, being normative in character, leave open the question, “Shouldn’t

  we do this if and because it works?” In fact all societies eschew certain

  forms of “cruel and unusual punishment,” and practices such as slav-

  ery, on grounds independent of their efficiency. My form of welfarism

  has no trouble concurring with them. Still, it is helpful to point out that

  such punishments, on a variety of grounds, actually appear to be quite

  inefficient.

  But, as I said in chapter 2, some status injuries are in a special category, because they involve the denial of people’s equal dignity. Discrimination

  on the basis of race, sex, or disability; sexual harassment in the workplace;

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  certain types of bullying or threatening hate sp
eech: all are humiliating

  practices of a special kind, and one that a society committed to equality

  before the law needs to take very seriously. Making such practices ille-

  gal is usually justified by a forward- looking welfarist argument anyway,

  since it is plausibly believed that such actions are highly deterrable. So

  we do not need to urge a change in common patterns of public argument.

  Even additional penalties for hate crimes standardly receive a deterrent

  justification.64

  A society pursuing overall welfare will have to weigh the speech

  issue with great caution, since ambitious hate speech laws of a type

  known in Europe (including laws against “group libel”) may not prove

  welfare- enhancing, for the reasons given by Mill in On Liberty. They are also highly prone to being hijacked by majorities for the humiliation of

  minorities: blasphemy laws in nations as different as Britain and India

  criminalize offense to the majority religion (or, the majority is in the

  strongest position to demand enforcement of a general law) in ways that

  prove over time extremely punitive to minority speech and to internal

  religious criticism.65 But narrower laws focusing on bullying and threats

  targeted at an individual seem to lack this problem. Reforming Internet

  anonymity so that defamed individuals can successfully sue under exist-

  ing laws seems an urgent priority.66

  In short: my strictures against status- obsession do not mean that

  there is no way in which political principles should attend to status. The

  competitive search for relative status and rank is what I have been target-ing. Our equal dignity as human beings and citizens is a special status,

  rightly given constitutional protection. This gives non- discrimination

  laws, prohibitions on sexual harassment, and, I personally would add,

  affirmative action policies, a prominent role to play. (Thus affirmative

  action would not be acceptable as mere identity politics or assertion of

  relative group status: it must be defended in terms of equality.)

  IV.3. Confrontation and Reintegration

  When a child commits a bad act, a good family will convey to the child a

  clear message about the unacceptability of the act, but in a spirit of love

  and generosity, encouraging the child to separate the child’s basic ongo-

  ing self from the wrongful act and to think of him- or herself as capable of good in the future. It helps if parents model the virtues themselves, and

  their delicate combination of confrontation and reintegration is made

  more effective by the child’s own love and emulation.

  Influential Australian criminologist John Braithwaite argues that

  many crimes, especially involving youthful offenders, are best addressed

  in precisely this way, through community conferencing in a supportive

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  quasi- parental spirit. Braithwaite’s approach is complex, involving an

  elaborate theory of community social control, public shaming, and pun-

  ishment administered by the community rather than (at least in the first

  instance) impartial agencies of government.67 I think some aspects of his

  vision are extremely attractive and others less so. What I shall now do,

  consequently, is to describe a “Braithwaitean core,” a proposal for rein-

  tegrative conferencing that includes central features of his idea; I shall

  then examine this promising idea in a critical spirit. Finally, I shall men-

  tion other aspects of the surrounding Braithwaite theory of crime that

  seem separable from the attractive core, and not so attractive in their own

  right.68

  Braithwaite’s basic idea is that what offenders— especially young

  offenders— need, if they are to change their ways (and if others are to

  be deterred) is a clear moral message about the wrongfulness of their

  act, combined with an avenue to reintegration with the society they have

  offended. His approach is in a general way Utilitarian: his goal is ulti-

  mately to deter crime, and he commends his reintegrative method as

  more effective than other approaches.69 Most impersonal criminal pun-

  ishments, he argues, alienate offenders, particularly young and mallea-

  ble offenders, causing them to identify with criminal subcultures and to

  become hardened in their ways. This result is especially likely to occur

  when the criminal justice system conveys a message of stigmatization or

  humiliation, treating the offender as low, lacking in dignity, and not worth

  caring much about. This happens all too often. Braithwaite believes that it

  is endemic to large impersonal institutions to behave in this disrespectful

  and stigmatizing way.70

  On the other hand, most reform efforts, he holds, do not success-

  fully imprint on the young offender the moral message that crime is not

  acceptable to the community. They rely on rational persuasion, whereas

  Braithwaite holds that a community, like a family, works best when it

  inspires strong emotions toward the moral norms of the community. He

  calls his key emotion “shame,” meaning by this a painful emotion that

  acknowledges having failed to meet some community ideal or norm.

  Just as a good family (in his view) emphasizes, through love and

  respect, that the child is separate from the child’s offense, so too a suc-

  cessful intervention with juvenile offenders must separate offender from

  crime. Braithwaite believes that the best way to get the right features is to deinstitutionalize and personalize dealings with offenders, by setting up

  community conferences, in which, in effect, the community itself is the

  criminal justice system, and, if all goes well, the young offender never

  falls into the hands of the formal system. These conferences— which he

  and his colleagues have tried out and then studied in Wagga Wagga,

  Australia, and Auckland, New Zealand— are used only for predatory

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  crimes, thus avoiding the obvious problem that communities like to

  tyrannize over people’s liberty in intrusive ways, even when there is no

  victim. Most systems of punishment, in his view, brutalize the conscience;

  this system, by contrast, aims to awaken conscience, by making clear to

  the offender the cost of the act to the community and the strong disap-

  proval of the community. Throughout, respect is shown to the offender,

  who is treated as someone who has the potential to do good. Braithwaite

  is emphatic on this point, sharply distinguishing his approach from other

  proposals for shame- based penalties that focus on stigmatization or

  humiliation.71

  What actually happens? Typically the conference includes the vic-

  tim or victims, who can make clear to the offender the costs of the act.72

  A faceless person becomes “a vulnerable elderly woman who did with-

  out something significant because of the loss of the money.”73 But it also

  includes relatives, teachers, and other community figures whom the

  young person admires or loves, so that a structure of familial emulation

  is built into the entire situation.74 Moreover, even when the victim does

  not directly touch the emotions of the offender, who may have devel-

  oped a cap
acity to avoid feeling responsibility, the victim is very likely

  to touch the relatives and friends, and their distress, in turn, may get

  through to the offender, even when the victim has not.75 The coordinator

  keeps things forward- looking and positive. Thus, when a mother at one

  point says, “He used to be a good boy until then,” the coordinator imme-

  diately steps in, saying, “And he still is a good boy. No one here thinks

  we’re dealing with a bad kid. He’s a good kid who made a mistake and

  I hope he knows now that that’s what we all think of him.”76 The crime

  is constructed as the bad act of a good person. At the same time, any bad

  circumstances in the offender’s life are brought to light, in a way that

  awakens sympathy.

  Who and what does the coordinator represent? This, Braithwaite

  says, is complicated and challenging. For the coordinator must identify

  him- or herself with offenders, victims, families— but also with “supra-

  personal values enshrined in the law.”77 A tall order indeed. Above all,

  the coordinator must convey the idea that this conference is about reinte-

  gration, not about the “mischief” standardly associated with the idea of

  punishment. And the process is patient: Braithwaite describes one case

  in which eight successive conferences are used to reach a repeat offender.

  How is reintegration achieved?78 The idea is for all alike, offender,

  victim, and friends, to acknowledge a split between act and person,

  and to express closeness and inclusion toward the person, while cast-

  ing stern disapproval upon the act. “Rituals of reintegration” are devised

  by the coordinator, drawing on his or her knowledge of the community.

  Apology figures here as a ritual gesture through which the offender splits

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  him- or herself into two, dissociating self from offense and supporting

  society’s rule.79 But apology is carefully structured so that it does not

  involve abasement, but positively reinforces self- respect. And what is

  hoped for is that the distance that crime has created between the various

  parties will be closed, creating “opportunities … for perpetrators and

  victims to show (unexpected) generosity toward each other.”80

  This method has obvious appeal, in terms of our ideas of the