The other day Boz, my cat, "took a giant dump" on the living room rug. (The colloquial expression in quotes puzzles me. He did not take anything. It is what he left that disturbed me.) I was stunned by this act of betrayal. We have a box in the house filled with unsullied litter for emergencies. Up until the living room incident, Boz had displayed his perversity in less dramatic ways. He does not limit use of the box to emergencies. Better to interrupt his outdoor activities (lengthy siesta is included here as an activity) to pop in the house for a quick visit to the box. Following completion of the task, he makes perfunctory motions at clean up, rarely accomplishing what I, but apparently not he, consider a thorough job. In the naïve belief that his inattention to details reflects negligence instead of malice, I did not reprimand him. But the living room episode I could not ignore. My disappointment over his unseemly behavior demanded a confrontation. I called Boz into the living room where evidence of the deed was neatly piled in a corner but plainly visible from every part of the living room. “Boz, how could you do this?” I asked. Before he could reply I said, “Bad cat, naughty animal, shame, shame, shame on you.” His head was moving up and down, but not in agreement with my assessment of his unbecoming behavior. He was licking himself. It was then that the epiphany struck me like a thunderbolt. He felt no shame. He didn’t care, or to be colloquial again, "he didn’t give a ****."
In the old days people could endure just about anything but shame. If you felt ashamed it would be unbearable to look others in the eye. That’s why Oedipus switched to Braille. His “shameful” act has become a popular expression of derision, more frequently used by those who have never heard of Sophocles. Like substantial evidence questions, the expression occurs with “rhythmic regularity” in the transcripts of criminal cases.
Attitudes about shame today are different. If I had made my cat wear a sign around his neck that says, “Shame on Me, I pooped in the living room,” I doubt that he would have cared, provided the sign did not hamper his movement. That he does not read is beside the point. No one reads these days. But the more pertinent question is: Does anyone feel shame nowadays? If “reality” shows are an indication, the answer is obvious. People eat live bugs and snails, reveal their most vulgar traits, plot against their friends, have sex with strangers, and suffer innumerable humiliations witnessed by millions of enthusiastic viewers. If Hester Prynne were here, she would be doing commercials for the Auto Club.
At first blush (does anyone blush anymore?), shame appears to be an anachronism. But if that is so, why are courts meting out shameful sentences, I mean sentences designed to shame defendants?
In United States v. Gementera 379 F.3d 596 (2004) defendant who had stolen mail was ordered to stand in front of a post office for a day wearing a sandwich board sign that said, "I stole mail. This is my punishment" as part of his sentence. At trial Gementera seemed content with the sentence. On appeal, however, he argued the sentence was not legitimate. It violated contemporary standards of decency and humiliated him. The 9th Circuit saw it differently and affirmed the sentence. The majority acknowledged that the sign condition likely will cause Gementera humiliation or shame, but the condition is reasonably related to rehabilitation, a goal of the federal Sentencing Reform Act. I wonder whether defendant Gementera thought his pilfering letters violated contemporary standards of decency.
In Demery v. Arpaio 378 F3d 1020 (2004) the sheriff used "web cams" to stream live images on the Internet of pretrial detainees in county jail. The 9th Circuit affirmed the district court's grant of a preliminary injunction prohibiting this practice. The appellate court failed to see how turning pretrial detainees into unwilling objects of the latest reality show served any legitimate goal. The practice amounted to unlawful punishment of pretrial detainees. There were dissents in both Gementera and Demery proving that notions of justice can depend on perception and the right panel. Getting back to Boz, my cat, I require him to wear a collar with a bell. He protests that wearing the collar is humiliating and has filed for injunctive relief. I plan to argue that the bell serves a lofty purpose. It gives unsuspecting birds and mice a warning. It is doubtful the Demery court will uphold the constitutionality of the warning bell. The court might acknowledge that the warning bell could save a bird or two, but it could buy into Boz's argument that he is being shamed for a crime he has not even committed. His case is therefore even stronger than that of the pretrial detainees who at least had been arrested for crimes they were accused of committing. True, but I would argue that although Boz is allegedly shamed for a crime he did not yet commit, we can take judicial notice that he most certainly would commit the crime if given the chance. Although I cannot predict how the court will rule, I am confident it will unanimously uphold the use of the bell when it comes to mice. I cannot speak to the court's rationale, but I know it will find a way.
If shame is an anachronism, why did Gementera and Arpaio appeal? I think it is because there is a world of difference between choosing to parade one's shameful acts to a jaded public, and quite another to be forced to be shamed in a manner decided by someone else. That can be excruciating. Candid lawyers with unrepressed memories will not forget the humiliating sting inflicted by scornful law professors calling on them with relentless questions for which there were no satisfactory answers. “Shame on the professors,” I thought. But were my indictment shouted from the rooftops it would at best have prompted a yawn.
There is no question that shame can be devastating when one’s humiliating act is revealed by others. This happened to me even when I was out of law school and working as a young deputy city attorney. At the time I was trying innumerable “drunk driving” cases. Each morning before court convened, I would stand in the master calendar court and call out the names of the people’s witnesses subpoenaed to appear that day. The courtroom was usually filled with police officers, defense attorneys, defendants and witnesses. One person’s name appeared on many cases, but he was never there. Day after day I would call out his name loud and clear, “Sid Chemist,” (last name pronounced kem-ēast). Police officers invariably cracked up when I called the name of this flakey witness who never showed. My frustration with Sid Chemist was written up in the Police Gazette. That was when I learned that Sid Chemist was the Scientific Investigation Division Chemist who was on call to testify, if needed, to explain the workings of the gas chromatograph intoximeter. Please keep this embarrassing story to yourself. But judges should be wary of imposing shameful sentences, I mean shaming sentences. One California judge since retired, ordered a beer thief to wear for one year a T-shirt on which was boldly written, "I am on felony probation," and "My record plus two six packs equals four years." The Court of Appeal in People v. Hackler 13 Cal.App. 4th 1049 (1993) disallowed the order reasoning that the T-shirt just might not favorably impress prospective employers, thus defeating defendant's rehabilitation. In another case, unpublished, the same judge sentenced a woman convicted of beating her children, to wear a contraceptive Norplant device as a condition of probation. The case caused an outcry from civil liberties groups. I was curious to know what Boz thought about the case. To give him a balanced view, I presented the judge’s rationale for the sentence. The defendant was a drug addict and already had five children taken away from her. The judge was merely trying to protect a child not yet conceived from brutality and neglect. I asked Boz what he thought about the probation condition. He jumped out of my lap. I heard him scratching away in his box.