Things never start on their own. They evolve, and they grow from strength to greater strength. Nothing is isolated. Every thing, moment, or object is related to everything else. Though the War on Drugs is beyond the scope of this project, briefly reviewing the history of mass incarceration within the larger context of public or social ideologies and the invisible web of laws, rules, and policies that stemmed from the buildup of American prisons allows us to look at the wide range of subtle methods of social control—and, ultimately, social exclusion—employed to shame people into obedient behavior in our pursuit of an idealistic society.
In 1975 Michel Foucault published Surveiller et punir: Naissance de la prison, which would be translated from French to English in 1977 and better known in the United States as Discipline and Punish: The Birth of the Prison. Though Foucault’s analysis largely applies to France, this text was written to provide a historical overview of the modern penal system’s transition from corporal punishment to what he calls the punishment of the soul. Foucault, writing his book in the ’70s, would have no way of knowing that the new millennium would usher in dramatic increases in the prison population (particularly in the United States) as we waged a War on Drugs (and, some would add, on minorities), nor could he ever have imagined the effect that the proliferation of electronic criminal records would have on “being constantly seen.”
Visible and Invisible Power
Marc Mauer, a respected criminal justice advocate who coedited Invisible Punishment, a collection of essays written by many well-known and respected criminal justice advocates on the collateral consequences of mass incarceration, argues that “not all criminal sanctions are as visible as prisons. We punish people in other, less tangible ways” (2002, p. 15). This project explores the human and social costs of the invisible power operating in many unexpected places and exercised through the use of these social and legal policies.
In the section entitled “The Means of Correct Training,” Foucault writes:
The relationship between power and knowledge is central to Foucault’s work; he sees power in general as a strategy, a social process, and an instrument of coercion and explores how power is used to control and exclude. He states that sovereign power operates through specific visible agents with the authority to judge and punish. In this particular instance, he was referring to the king who was thought to be the proxy for God, but today this power is centralized in the government. Because of its ability to be seen, sovereign power can be resisted, while disciplinary power, he says, is veiled but inescapable and affects virtually all aspects of living, subjecting everyone to the possibility of surveillance at all times.
Edward Snowden repeatedly speaks about privacy when he explains why he chose to reveal the extent and the breadth of what he calls the Panopticon's illegal, unapproved, and ceaseless collection of the intimate minutiae of our daily lives. Originally, the Panopticon was a prison where inmates had no privacy. The inmates never knew precisely when they were being observed, leading them to act as if they were always being observed. The inmates, ever fearful of punishment and consequence, would constantly self-police and self-correct their own behavior. Foucault describes the prisoner of a symbolical and metaphorical panopticon as being at the receiving end of asymmetrical surveillance: “He is seen, but he does not see; he is an object of information, never a subject in communication” (1977, p. 200).
Snowden, Glenn Greenwald, and others think the best way to frame this debate, to make it palatable and personal to the average American, is to argue that privacy is a fundamental right, and that it is precious beyond measure. While I agree, I think they are fighting a losing battle. Many Americans do not really believe in privacy. That is, they do not really believe anyone really needs it, that privacy is something not worth having unless you have something to hide. The inference being, of course, that anyone who has something worth hiding is either a criminal, a terrorist, a ne’er-do-well, or some Frankenstein agglomeration of the three.
Public Shaming and the End of Privacy
Public opinion is just how the state enforces the invisible codicils and nebulous binding contracts that govern much of society's day-to-day operation. Public opinion is simultaneously the warden and the chains that bind. In small towns, it was the threat of a damaged reputation that kept misconduct to a minimum. That was the oppressor's oppressive tool. Fear of being outed and shamed was the prime law enforcement technique in small towns. The Scarlet Letter, the favored method of execution. We are only slightly less barbarous two hundred years later.
We have only codified and made this more explicit by the insistence that criminal records be part of the public domain. The same coercion that worked so well in small towns of long ago and works so well in small towns today is one of the unseen accepted truths being tacitly referenced each time a judge or politician mentions the deterrent effect. We have, as a society, decided that we had best rely on fear, shame, and coercion, and not much has changed in the twenty-first century.
The power of a criminal record is in its ability to highlight, to mute invisibility, to identify, to individualize, and to separate from the herd. He who names a thing defines it, delineates its boundaries, fashions its character, and explains it to the world. The power of definition is the ability to mint power as a currency. When a criminal record makes you a newly minted felon, that reputation will follow you to your grave. Even if you committed no crime, you will begin to take on the characteristics of the felon and to fill the persona as it has been defined. And even if you are able to escape the coercion to become your label, society has no qualms treating you as if you are no more than your assigned role.
Foucault theorizes the prison experience as ‘marking’ or ‘branding’ the prisoner, leaving them observable upon release and making the milieu of delinquency as a whole visible and, therefore, manageable. To mangle a Foucault quote, one is rendered visible and docile by a criminal record. People will refrain from joining organizations for fear that their stigma will weaken the credibility of their preferred organization because of its aid to a certified bad person. Those very people will fail to speak up in situations where ‘others’ are being objectively mistreated because the hit to their credibility will not allow them to sustain or to prevail in an argument made in the public sphere. People who have records are targets of abuse and susceptible to exploitation.
The rise of the social web may be perceived as a re-villaging, where the permanence of one’s digital footprint behaves as a deterrent, making it seem to some like an ideal time to reintroduce public shaming to reinforce norms. But considered through a historical lens, public shaming begins to look like a tool designed not to humanely punish the perp but rather to satisfy the crowd.
Cole Stryker, 2013.
There are two legitimate cottage industries, largely symbiotic, that exist only to shame and legally extort and exploit the citizen unfortunate enough to acquire a criminal record—mug shot websites and reputation management companies. Reputation companies, as they call themselves—to largely, I think, preemptively defend against claims of blood sucking and bottom feeding or more politically correct, to expand their perceived use to what amounts to Human SEO —things like getting that drunk Instagram pic of you that your friend refuses to delete off the front page of Google, or burying an unflattering news article or to assist individuals who have had their mug shots posted online by outfits like florida.arrest.org. It’s still scum sucking and bottom feeding, profiting off human misery, but that branding gives them access to a more “legitimate” clientele that keeps the name-and-shame law-and-order crowd off their back. They convince the mug shot sites to take the mug shot down permanently and prevent it from popping up in a Google search where potential employers, potential spouses, and potential school administrators can see the photo and draw conclusions without the benefit of clarifying or ameliorating information. That is to say, it is a place where potential employers, potential spouses, and potential educators are given the ammunition with which to exclude anyone rendered visible by dint of a criminal record from participation in all the events that are considered to be positive participation in daily life.
Most of the members of the public who frequent these sites openly and cheerfully admit they visit for the entertainment value. They post derogatory, inflammatory, and abusive comments—all in good fun, of course. Not even limited to arrests—look at stuff like People of Wal-Mart or Worldstar. Deviate enough from social norms for someone to take a picture, and there you are. It is the twenty-first century equivalent of a prisoner being placed into stocks in the town common where good folk were encouraged to pelt them with rotten food and fruit as they go about the day’s other mundane activities.
Not so long ago, in the ‘50’s, people used to listen to “serials” on the radio. If they had a TV, it showed pictures in only two colors—black and white, and the infinite gradations of gray. TV was not broadcast twenty-four hours a day. Channels signed on and off like ham radio operators. People did not use the telephone for recreation. People rarely traveled. They got married so they could have sex. People still disapproved of people who had sex when they were not married. That is the sort of thing that would determine whether the postman would deliver mail to your house or the bank would offer you credit. Disapproval was a very popular pastime, and reputation was just as important as money. If your reputation was poor enough, it could rub off on the people you visited and businesses you patronized; they couldn’t be seen welcoming you or accepting your business anymore. Your young grandparents lived in literal villages or small towns. Even in the big cities, people did not usually go too far. Transportation was expensive.
This is just sixty years ago. You will live to be sixty unless you are unlucky. Life expectancy in our village is greater than seventy years.
In 2007, Rob Wiggen was released from prison. Given the barriers facing returning citizens on the job hunt after release, I cannot blame him for seeing entrepreneurism as his only legitimate shot at getting to what the middle class identifies as the American Dream. He started what became one of the largest, most profitable niche industries on the internet. He wrote a scraping tool that analyzed publicly accessible law enforcement databases and posted mug shots and other identifying information on a well-collated, publicly accessible, professionally designed webpage.
It is interesting how so many pieces converge to create things. It is interesting how the zeitgeist works. How nothing is isolated. How everything is connected to everything else. The web as we now know it is powered by advertising. The way website owners make money is by generating content. Sites with lots of content attract lots of visitors. Sites that attract lots of visitors can make agreements with marketers to display ads, and the marketers will pay them lots of money. Everyone knows the adage, buy low, sell high. Content is not cheap. If you write (or draw, or record), the content itself takes a lot of time and effort to create. You can pay someone to create content for you, but that costs money. The best content is content you can get for free. The records of who committed a crime yesterday is content that is free. You just have to know where to get it. And you would know where to get that data if you were once in prison. Nothing is isolated.
From One Dot to the Next Connection
In the late 1930’s, attending, discussing, and thinking about executions was a source of amusement. On August 14, 1936, there was a “carnival in Owensboro.” Those were the words printed by newspapers weeks in advance to advertise the event. Those same words were later used by reporters afterward to condemn the event, and scholars claim the coverage of the event led to the carnival being the last public execution in the United States.
Individuals who lived near to Owensboro Kentucky in August of 1936, they were entertained by the death of Rainey Bethea. Twenty thousand of them left their homes to camp out days in advance in order to witness the event. These spectators had to get set up the night before, or they would not get a good vantage point. The event was so popular that people came out to watch the construction of the stage or, more aptly, the scaffold. The scaffold was raised high above the ground for maximum visibility. But still, people climbed up electric poles and trees, and they hung out second- and third-floor windows to see the action. The New York Daily News headline that day was “Drop Through Trap to Eternity Provides Populace With Roman Holiday.” New York was 843 miles away from Owensboro, Kentucky in 1936. The most popular cars on the road were Buicks and Fords, not yet capable of hitting a hundred miles an hour. It would take almost two and a half days to drive from Owensboro to New York, but individuals in New York cared about the execution. They were entertained by it. The New York Times article covering the “carnival” was headlined “10,000 See Hanging of Kentucky Negro; Woman Sheriff Avoids Public Appearance as Ex-Policeman Springs Trap. Crowd Jeers at Culprit; Some Grab Pieces of Hood for Souvenirs as Doctors Pronounce Condemned Man Dead.”
The Crusaders Behind the Sites
Caught Up Live, criminalfaces.com, jail.org, gotbusted.net, and mug shots.com all iterated on Wiggins’ idea and either diversified or localized. Wiggins’ idea evolved. Some spread out like franchises, scraping local databases in each county. If anyone you know has had a brush with the law, you could find them on here, or here. The people who run these sites, and the parasitic Reputation Management websites they spawned, are as diverse in ideology as they are in goals. Some are entrepreneurs looking to make a buck, and some are crusaders claiming to aim at doing good. We understand the entrepreneurs’ motivations. There are few stories so familiar as buy low and sell high.
The crusaders are the more interesting. The crusaders hide behind names loaded with shades of the First Amendment—like Citizens Information Associates, LLC and U.S. Support Services, LLC. Their chief argument is that they are providing a public service.
SlammerPics now markets itself—and hosts testimonials as evidence—as providing a service to bail bondsmen who are having a hard time finding people whose bail they underwrote who subsequently ran off. The sheriffs who supply the images find it difficult to understand why people would take offense.
But this just walks right into the ethics of the arrangement. Criminal background checks are efficient, well-regulated, and eerily accurate. They have to be. Sony does not want to fire an employee because of his background check only to find out that the background check was incorrect. That employee might sue. Criminal background checks do not identify people by their pictures. Neither does law enforcement. A picture is not a definitive way to ID anyone. There are better ways to get out the information that John Smith from 240 Greentown Road in Naresh, South Carolina got arrested for a drunk and disorderly last Christmas. The previous sentence is one of them. No one needs the pictures. Bill Rowe, North Carolina Justice Center director of advocacy, says: “If you want to know about folks you're trying to hire or engage in some other behavior, you can do a criminal record check, which would be much more accurate. But having pictures of people—someone would have to tell me what the public benefit is for that."
Pleasure and Punishment
One of the beauties of being a person who reads is the delight in making connections between cause and effect. There is the amateur detective's pleasure in ferreting out the whodunit and the archeologist’s pleasure in successfully unearthing a skeleton. I think a lot about pleasure. I am an unabashed hedonist, an epicurean specifically. The entire point of my life is the intentional pursuit and maximization of pleasure. All humans are hedonists, I think, but most would prefer not to acknowledge it. However, not one person will do something but for the fact that he thinks it will bring him pleasure. We often miscalculate. Math is difficult for humans.
An epicurean thinks that it’s best to trade the greater pleasure for the lesser. So the million immediate pleasures are of much lesser value than, say, graduating from college with a degree. By definition, epicureans do much to avoid those pleasures whose costs are either as great or greater than the pleasures they preceded. A drunken bender is not an epicurean's idea of a good time. The binge may be pleasurable during the binge (debatable given that it is unlikely the person who had too much to drink will remember the great time s/he had), but the cost is too great. The pleasure is outweighed by the harm caused and the feelings of shame and responsibility for that damage. Imagine the coworker who, despite his hard work, friendly demeanor, and general abstention from alcohol, can never live down one embarrassing incident at the office Christmas party.
I have always been fascinated by the way a mob chooses its victims. How does a group of people confront a witch? If she really were an evil witch, what would stop her from turning the mob into tadpoles? How is a group better protected than an individual? Is this evolutionary conditioning? Do we instinctively remember that we have more success as a group? Does the group become amulet and protection? Drunk on power, and power like lust, does the group really not see the helplessness of the victim? Had the witch been truly dangerous, had the dog demonstrated its capacity for damage, they would still be alive. Mobs are not immune to fear. Panic spreads fastest through crowds. But mobs are immune to accountability and, by extension, to logic. There is a vicarious pleasure in punishment.
The Public Benefit
“I am no more a witch than you are a wizard, and if you take away my life, God will give you blood to drink.”
—Sarah Good, convicted of witchcraft,
Massachusetts Bay Colony.
Executed July 19, 1692
Madness, it is said, is rare in individuals, but in groups, it is the rule.
More colloquially, and quite colorfully, madness is defined as doing the same thing repeatedly and expecting different results. We punish. America punishes. We are a punishment culture, and the experts know that punishment does not work. The evidence shows that punishment does not work. We have been punishing since our nation’s inception, and we have more people in prison now than we ever have. Fifty percent of those released from prison are punished again within three years.
Our legal history gives us five pillars upon which the justification for criminal punishment rests: incapacitation, restitution, deterrence, rehabilitation, and retribution. We accomplish incapacitation when we lock up someone convicted of a crime—he is unable to continue to commit crimes. Retribution is big with the capital punishment crowd. An eye for an eye, and a limb for a limb. We are thinking about retribution when we speak of a victim’s family receiving “justice.” Restitution is haphazard at best. Moreover, restitution is usually left to civil court instead of criminal, which signals that it’s a lower priority we don’t tie directly to the criminal act. Most people convicted of crimes are poor. Fines and restitution usually do not get paid unless the convicted is in prison for a long time, and even then, it is usually paid by his family on the outside. We make only token attempts at rehabilitation—we only aspire to that one. But deterrence? We are much more familiar with deterrence.
Deterrence would work if punishment worked. But punishment does not work, so deterrence won’t work, either. We fantasize that if we make the punishments garish and extreme enough, we will scare morality into our neighbors. In reality, though, all we do is put increasingly large numbers of people in prison. We punish more and more frequently despite evidence that punishment does not work.
Punishment rarely affects behavior. It affects behavior only when the person being punished is in proximity to an authority figure who can mete out the punishment. Punishment causes authority avoidance. Kids do not stop smoking joints—they hide them from their parents and from the cops. Even after they are caught.
A person who steals because he’s hungry is not going to stop stealing because you caught him and punished him. If the circumstances that led to his hunger do not change, he just learns to run faster next time. There is little evidence that shaming works, and that’s because it doesn’t work. In her book Hiding from Humanity: Disgust, Shame and the Law, philosopher/law professor Martha Nussbaum’s critique of shame is for the most part a disapproval of acts and practices of shaming, which historically have aimed to oppress socially stigmatized groups or produce humiliation and “stigma,” a more permanent deprivation of human dignity (2004, p. 225). While a sentence of imprisonment itself is not intended for the sole purpose of inducing shame, the collateral sanctions, restrictions, and prohibitions that offenders are subject to upon being convicted are nothing more than new tactics to achieve the same goal—universal and lifelong penalties that perpetuate shaming and encourage a systematic structure which maintains separateness and subordination by inviting “them” (former offenders) to “us” (those who are viewed as normal, morally upstanding citizens) as “others” (those who are deemed disgraced). It conveys the inherent message that former offenders like me are flawed and suspect and should not be trusted.
Sex offenders are subject to public shame by the Sex Offender Registry. Lawmakers and supporters repeatedly cite its supposed deterrent effect. No study done on the sex offender registration has found the registry to have any statistically significant effect on recidivism or deterrence. Shaming is just public punishment absent physical damage. “Condemning others as bad or sinful is a way to feel righteous. Such a feeling is a powerful mood alteration and can become highly addictive” argues John Bradshaw (1988, p. 91). It does little to nothing to reform the one who committed the infraction. The defensive justifications about public service, and notification can be understood in this light. The crusaders are pursuing a pleasurable activity but not a productive one.
Both Martha Nussbaum and social worker/shame researcher Brene Brown argue that shaming is too damaging to be used in a civilized society because it targets the person rather than the person’s acts. Nussbaum’s critique of shame is, for the most part, a disapproval of acts and practices of shaming, which have historically aimed to oppress socially stigmatized groups or produce humiliation and “stigma,” a more permanent deprivation of human dignity (2004, p. 225). Once this happens, says Erving Goffman (1963), one “is disqualified from full social acceptance” (Preface). The resulting stigma is permanent and severe, and others will always cast these individuals in a negative light (Goffman, 2009, p. 46), where the individual is no longer seen as a whole person but rather “a tainted, discounted one” (Goffman, 2009, p. 2). Foucaultians would argue that shame is used to appropriate the agency of a person’s mind, social relationships, and access to employment, et al.
Shame and Punishment
The pillory, or "stretch-neck was described by Nathaniel Hawthorne in his Scarlet Letter as an "instrument of discipline so fashioned as to confine the human head in its tight grasp, and thus hold it up to public gaze. The very ideal of ignominy was embodied and made manifest in this contrivance of wood and iron. There can be no outrage, methinks . . . more flagrant than to forbid the culprit to hide his face for shame."
One of the more disgusting parts of the mug shot industry is the proliferation of reputation management agencies. These agencies, seemingly acting in cahoots with the mug shot sites, charge people a fee to make their mug shots disappear from the internet. They are not cheap. Prices range from $399 to $2000. What’s more, there is also no guarantee that convincing one site to eliminate the mug shot will prevent the mug shot from proliferating on similar competing sites.
We have a complicated relationship with shame and punishment. We have been using them for centuries. There is a precedent of requiring the sufferer to pay for society's mercy. One could always escape shame and embarrassment. By reciting the “neck verse,” people who would rather not live with their shame had a loophole they were free to exploit. It worked like this: after being sentenced to public shame, call for the priest, recite the first lines of Psalm 51 and, instead of the stocks or the pillory, one would be granted the gallows instead. The punishment would still be very public. However, the prisoner would not be around thereafter to live it down.
The public spectacle of punishments in America has a long and storied history. In his chapter “Objectification and Internet Misogyny,” Nussbaum uses the term ‘shame justice,’ which she defines as “justice by the mob: the dominant group are asked to take delight in the discomfort of the excluded and stigmatized” (2012, p. 73). We were inventive in incentivizing the behaviors our village thought moral. Almost all our punishments revolved around shame. Our system of laws descends from preachers. In 1611, the American colonies to the British Realm were theocratic—and unapologetically so. The law required colonists to attend Sunday church and for preachers to preach not only the sermon but also the law. In 1656, Captain Kemble was made to endure the stocks for two hours for “lewd and unseemly behavior.” Captain Kemble’s crime? Returning home from a three-year voyage on the Sabbath and giving expression to having missed his wife by kissing her on the mouth.
Every respectable major town had a public restraint device in the town square—a stock or a pillory or a scaffold for the hangman to ply his trade. The law often required it. It was a place where the good townsfolk could come and gawk and carry out judicially prescribed humiliations. Rotten vegetables were often additional stipulations on a sentence. Nailing ears to the pillory was another, as was shaving. All in good fun. There is a long history of this. Public hangings were times for celebration and town get-togethers. It was thought to be good edification to take children to see prisoners in the stocks or a man hanged dead. Over time, these punishments disappeared, and we moved from a “culture of spectacle” to a “carceral culture.”
“[P]ublic humiliation is a commodity and shame is an industry” (16:05) says Monica Lewinsky in her TED Talk, “The Price of Shame.” Listen as she explores the “very personal price to public humiliation” and shaming and connects it with todays “culture of humiliation.”
Part of the Punishment
"Your punishment doesn't end when you leave jail anymore. Now it will follow you forever and ever. It's not going to go away, which is why you see people scrambling so hard to try and pay services to scrub their pictures from the mug shot websites."
— Danielle Dirks, Assistant Professor of Sociology at Occidental College
As open as the internet has made the world, it has paradoxically done much to shrink it as well. Humans default to villages in their thinking. The internet has gone far to making a village of the world. Villages have long memories. In the internet village, there is no big city to escape to, to leave your past and your shame behind. The internet does not forget. Do we really believe that branding people with their worst decisions and keeping them excluded from mainstream society is the best way to deter them from behaving badly?
The internet makes everything accessible. People are Googled—before a date, before being considered for employment, before being considered for housing. A mug shot does not increase one’s chances.
This brings us back to the collateral consequences of a conviction forced upon a released inmate. While a sentence of imprisonment itself is not intended for the sole purpose of inducing shame, the collateral sanctions, restrictions, and prohibitions that offenders are subject to upon being convicted are nothing more than a new tactic to achieve the same goal.
After prison, do we want an ex-prisoner to be discouraged by the reality that he is to be embarrassed for the pleasure of the rest of society? Do we want fifty percent recidivism? Career criminals? Large numbers of people who cannot be released, large numbers of people for whom we continue to pay custody and care? Or do we want positive reinforcement, a shaping of behavior? Work, do well, reintegrate with society. What sort of village are we intent on creating? Do we want to go backward in time to when a soiled reputation ruined social participation? Or forward to ensure all citizens positively contribute to society?
The influence of mug shot sites has been scaled back. The internet adjusted most of its search and ranking algorithms to prevent mug shots from dominating the first page of a person search. Mastercard, Discover, American Express, and PayPal have all pledged to stop processing payments for mug shot sites.
People still seek them out, though. It is apparently difficult to resist the celebration of humiliation.
If you recall, the crusaders insist they are providing a public benefit, a service our village needs. These same crusaders are belied by the organization of the mug shots, the subheadings with mocking titles like “P.I.N. Head and Hair Don’ts” and “Hot and Busted,” and the calls to action. Sherriff Joe Arpaio publishes all arrest photos and invites his constituents to vote for the Mug shot of the Day.”
We are not far enough from the spectators who watched the last public execution to be different from them. We are just doing what they did albeit in more technologically advanced ways. We have a history of gawking. One of the most profitable sites on today’s internet is called Gawker. People get their news and entertainment there. Gawker’s most recent scandal was posting a sex tape of Hulk Hogan. In 2007, Gawker on a company’s Valleyway blog outed Peter Thiel, one of the cofounders of PayPal, as gay, and for revenge the billionaire funded Hogan’s lawsuit against them. Hogan subsequently won a $140 million invasion of privacy verdict.
In many cases, the targets deserve to be exposed and more, but public shaming does not drive social progress. It might make us feel better, but let’s not delude ourselves into thinking we have made a positive difference.
Bradshaw, J. (1988). Healing the shame that binds you. Deerfield Beach, FL: Health Communications.
Cox, J. A. (n.d.). History.org: The Colonial Williamsburg Foundation's Official History and Citizenship Website. Retrieved May 30, 2016, from http://www.history.org/foundation/journal/spring03/branks.cfm
Foucault, M. (1977). Discipline and Punish (trans. Alan Sheridan). Pantheon, New York.
Goffman, E. (2009). Stigma: Notes on the management of spoiled identity [Kindle version]. Retrieved from http://amazon.com (Original work published in 1963)
Mauer, M., & Chesney-Lind, M. (Eds.). (2002). Invisible punishment: The collateral consequences of mass incarceration. Washington, D.C.: New Press
Nussbaum, M. C. (2009). Hiding from humanity: Disgust, shame, and the law. Princeton University Press.