Nathaniel Hawthorne’s License Plates
Joe Lockard and Ewa Pagacz
The presence of shaming penalties in US law has expanded greatly during the last decade, driven by legislative and judicial philosophies that have shifted away from civil rights enforcement and expansion. This shift has been underwritten by religious beliefs, originating in several major strands of Christianity, that emphasize a direct relationship between social offense and exhibitionistic public punishment of such offenses. Under such historic religious punishment regimes, imported to the early North American colonies in the seventeenth century, offenses were construed first as transgressions against divine ordinance and second as social wrongdoing. Salvation of souls in a community of faithful believers provided the rationale for public humiliation of offenders. Public punishment was designed to meet a purpose of ensuring communal purity.
Despite the nominal secular nature of US law, the theo-judicial ideology of shaming has made a comeback, fostered by the influence of religious conservatives. Since the late 1980s, there has been substantial growth in the number of US state jurisdictions that have imposed shaming penalties -- often called ”scarlet letter” penalties -- to punish a wide array of offenses, such as drunk driving, larceny, embezzlement, burglary, assault and others. Shaming penalties include, but are not limited to, requiring petty thieves to wear T-shirts or fluorescent bracelets announcing their crimes; displaying special license plates or bumper stickers revealing their conviction status; posting warning signs on their property; or otherwise publicizing their offenses (e.g. self-paid media announcements).
These punishments are couched in secular rationalizations, but have their historic origins in stocks, public humiliations (standing chained with wooden signs), facial and hand brandings, and other inventive inflictions that specified the sinful nature of an offense. In some court decisions supporting shaming punishments the original religious language is blatant, as in Lindsay v. State of Florida, a 1992 appellate decision upholding a probation condition that a man place a newspaper advertisement identifying himself as a DUI convict. “The hope that the sinner will sin no more, that he will be rehabilitated, does not compel the conclusion that he is relieved of the obligation to do penance for his past offenses,” the court held before quoting from another opinion: “Measures are effective which have the impact of the ‘scarlet letter’ described by Nathaniel Hawthorne or the English equivalent of ‘wearing papers’ in the vicinity of Westminster Hall like a sandwich-man’s sign describing the culprit’s transgressions.” Salvation from sin, the concern of Hester Prynne’s examining magistrates as she stood on her “pedestal of shame” in Puritan Boston, remains a governing concern of some contemporary judges.
The imposition of such punishments employing shame as a tool for social discipline, beginning in the seventeenth century, had proved so profoundly unsuccessful by the late nineteenth century that social reformers were able to end most such practices and substitute them with rehabilitative sentencing. The question, then, is why this class of shaming sentences has made such a prominent return? And why are license plates now a favored site for shaming, as well as social reward?
Debates over shaming have received significant attention in law journals in recent years, with most essays claiming that such punishments are useful penal armament. Among the few essays taking the counter-view that shaming penalties are likely to be ineffective deterrents, Toni Massaro suggests in a 1991 Michigan Law Review essay that such penalties are ineffective inasmuch as criminal offenders do not generally fear social disapproval. She points out that, unlike in cultures where shaming penalties are prevalent and effective, federal and state law in the United States include no public ritual or ceremony serving the purpose of reintegrating a shamed offender. Therefore, public shaming by a trial judge becomes, at best, a retributive spectacle devoid of positive aspects. Massaro questions shaming as a reasonably humane method of punishing criminals. She emphasizes that the humaneness of a penalty depends on several factors, including whether it is proportional to the crime, administered in an even-handed manner across offenders, and not exceptionally degrading or cruel. Equally, humaneness depends on issues such as problems matching punishment to crime, irreversibility of the stigma of shaming, and unfairness of stigma spillover for families and associates.
Supporters, on the other hand, argue that shaming penalties are simply a cheap, just and effective alternative to imprisonment. Some commentators believe that effectiveness of the shaming penalties results from what conventional sanctions do not do: inflicting moral condemnation and disgrace. Dan Kahan in a 1996 University of Chicago Law Review article argues that some studies suggest that the prospect of public disgrace exerts greater pressure to comply with the law than the threat of imprisonment or other formal sanctions. Meredith Mercurio, who supported shaming penalties in a 1998 University of Toledo Law Review essay, relies on the lack of evidence concerning psychological effects of such penalties and argues that every alternative, including jail time, results in shame and various other negative effects. She claims that an offender’s family and friends are always affected by a certain amount of shame and humiliation, irrespective of the type of penalty. According to Mercurio, the shame and humiliation spilled over onto those individuals constitutes further incentive for an offender to discontinue criminal behavior.
Advocates of shaming penalties frequently appear devoid of cultural history beyond the recent case law they cite, and routinely misappropriate reference to Nathaniel Hawthorne’s The Scarlet Letter as defense of their punitive endorsements. This misappropriation constitutes basic misreading (or non-reading), since Hawthorne’s antagonism towards the scarlet letter as a shaming penalty is a fundamental realization of the novel. Hester Prynne’s “rag of scarlet cloth” and “scorching stigma” is a doppelganger of the identical scarred A on the flesh of Arthur Dimmesdale’s breast; it is, as Dimmesdale states in his public repentance, “but the shadow of what he bears on his own breast, and that even this, his own red stigma, is no more than the type of what has seared his in-most heart!” Mutuality attains between the secret couple’s public and private penalties and penances; the public stigmatization and punishment of one gives rise to the private guilt of an equally responsible but publicly unidentified party. Forced exhibition of individual guilt does not correspond to the social distribution of that same guilt. Stigmatization not only unfairly penalizes Hester Prynne by “taking her out of the ordinary relations with humanity, and enclosing her in a sphere by herself,” but this unjust injury comes to ennoble the stigmatizing emblem. In equal measure to the harm this patriarchal punishment does Hester, it ultimately transfigures her in public eyes that have half-forgotten the “ancient offense” and know far more of her good deeds. The symbol, intended by Puritan elders as a punishment, becomes a token of her good deeds. Over the course of the novel the meaning of the A shifts from an unspoken ‘adultress’ to publicly acknowledged ‘angel.’ “The scarlet letter had not done its office,” Hawthorne writes, and his novel concludes with Hester and Arthur buried together beneath a gravestone whose inscription commemorates the scarlet letter.
The office of the scarlet letter was human degradation through an exercise of public sadism. When degradation visibly out-weighed the offense committed, then the symbol of ignominy gained a positive social counter-value. A continuing imposition of degradation spoke more about the dominance of social and gender elites, and contemporary readers react to Hawthorne’s novel by directing anger towards the framers of a punishment so devoid of understanding of human nature. Such potential reversal of punitive symbolism was precisely the point of John Greenleaf Whittier’s poem ‘The Branded Hand,’ which turned the 1844 hand-branding of Captain Jonathan Wheeler with ‘SS’ (for slave stealer), imposed by a Florida court, into a statement of civil heroism:
Why, that brand is highest honor! –
than its traces never yet
Upon old armorial hatchments was a
prouder blazon set.
A scarlet letter or a branded hand constitute excesses of punishment, one whose injustice can be retrospectively heroicized. There is a malodor of social sadism in shaming punishments. Where they victimize most visibly, their hypocritical behavioral double standard creates sympathy for its victims and breeds contempt for the punishment. Exhibition of tyranny contradicts any rehabilitative purposes of punishment, even if and where there exist legitimate causes to punish. Legal debates on ‘scarlet letter’ shaming punishments align much more along the continuum of this sadistic desire to engage in exhibitionistic punishment than they pursue public safety, rehabilitation, or strictly even punitive purposes.
A California appeals court recognized such judicial sadism in People v. Hackler, a 1993 decision that overturned a lower court decision ordering that a man convicted of shoplifting beer wear a T-shirt for a year proclaiming his status as a felony theft probationer. Although the purpose of probation is rehabilitation, the appeals court noted the trial court “revealed its true intent was to brand Hackler and expose him to public ridicule and humiliation, rather than facilitate his rehabilitation. The court told Hackler that by accepting the condition he would ‘become a Hester Prin [sic]’ for one year. The court also characterized the order as ‘going back to some extent to the era of stocks.’” Given that obeying the T-shirt sentence effectively would have prevented the unemployed defendant from gaining employment, such a sentence adopted conscious counter-productivity. As a form of official sadism, this and similar punishments pursue degradation as social policy.
Shaming is a continuing drama that entails harassment, heckling, and scenes of social subordination. It presents members of the public with a legitimated opportunity to vent hostilities that normally remain unexpressed; it is an open invitation to participatory sadism. Broadening the sphere of actual and potential humiliation within society is the purpose of such selective degradation, one that chooses certain crimes and venues for public animus. Respect for human dignity, the center of equitable legal systems, increasingly disappears through the expansion of selective shaming. The targets and effects of shaming selection bear little relation to social equity or safety goals. How do special license plates for sex offenders, a proposal growing in popularity, increase traffic safety? Why is it not personal shaming – say, a scarlet T for ‘thief’ – for white-collar criminals in the interests of public financial risk-reduction and safety that is under legislative discussion? Neither expands the space of individual dignity, whose reinforcement constitutes a desirable end of social policy.
Scarlet Letter License Plates
These arguments over shaming penalties are being played out in a uniquely American speech forum – state license plates. While license plates are ubiquitous in global auto culture, to our knowledge nowhere else but in the United States do these plates have both penal purpose and values advocacy roles. License plates have become a small portable political discourse field dominated by right-wing advocacies for harshly punitive criminal penalties, control of women’s bodies and reproduction, and classes of military honors. Auto tags in many states are now social codes that locate drivers’ cultural histories, beliefs, and civil status, extending their communicative work beyond their primary function of vehicle identification. These codes serve either positive or negative roles; they honor or stigmatize; they approve or disapprove. With their condensed symbolic space and requisite brevity, license plates are suited excellently to the focused intensification of message power that characterizes postmodern communications. Moreover, as a limited speech forum that can be controlled via legislative means, license plates are paradigmatic of right-wing cooptation of the public sphere and its closure to alternative messages.
So far, no constitutional objection to the imposition of such “scarlet letter” probation conditions has been successful – the reviewing courts have rejected constitutional challenges or sometimes even ignored them. Instead, the courts based their decisions on such issues as reasonableness of the special probation condition, interpretation of legislative intent in enacting provisions concerning probation conditions, including interpretation of the concept of rehabilitation, and scope of judicial discretion to determine probation terms and conditions.
DUI “scarlet letter” driving conditions imposed have included affixing to an offender’s personal vehicle a bumper sticker reading “convicted DUI – restricted license”; and displaying distinctive license plates denoting a DUI conviction. In a leading 1986 case, Goldschmitt v. State, a Florida court placed plaintiff on probation and required, as a special probation condition, that he affix to his vehicle a bumper sticker reading, “Convicted DUI – Restricted License.” Plaintiff argued that the special condition infringed his rights to free speech and constituted cruel and unusual punishment in violation of the First and Eighth Amendments to the US Constitution, and that it was an unreasonable, judicially-invented penalty. The appellate court rejected plaintiff’s appeal, holding with regard to constitutional arguments that the condition was not sufficiently humiliating to trigger constitutional objections. It decided that the sticker was a form of penance and warning to other potential wrongdoers, and that the mere requirement that plaintiff display a “scarlet letter” as part of his punishment was not analogous to colonial pillory. Further, the court referred to and agreed with another decision, United States v. Anderson (1983), holding that the deterrent, and thus rehabilitative, effect of punishment may be heightened if it “inflicts disgrace and contumely in a dramatic and spectacular manner.” It rejected colonial and Scarlet Letter comparisons, arguing that “differences between the degrading physical rigors of the pillory and a small strip of colorful adhesive far outweigh the similarities. The mere requirement that a defendant display a ‘scarlet letter’ as part of his punishment is not necessarily offensive to the Constitution.” The court added a grace note that innovative probation conditions might offend constitutional standards, however, if carried to extremes.
Several other courts, however, refused to uphold similar “scarlet letter” probation conditions. In State v. Letterlough, a 1995 New York case, the trial court ordered plaintiff display license plates indicating his DUI status (a fluorescent sign stating ‘Convicted DUI’), but the appellate court reversed on the ground that the special condition exceeded the rehabilitative scope probation was to serve and was, in fact, a punitive measure. The court held that the probation conditions enumerated in the state penal code are rehabilitative in nature -- none has an inherently punitive aim. Public disclosure of a person’s crime, on the other hand, and the attendant humiliation and public disgrace, are historically regarded strictly as a form of punishment. It further ruled that the creation of punishment for crimes rests within the realm of the legislature and, therefore, a sentencing court simply cannot impose forms of punishment not specifically authorized by statute.
Unlike appellate courts in Florida and Georgia, the Letterlough court did not uphold imposition of a “scarlet letter” probation condition even though the state statute included a catch-all provision, similar to the Florida and Georgia statutes, granting a trial court wide latitude to require defendants to satisfy any conditions reasonably related to their rehabilitation. The court was also not persuaded by the trial court’s argument that the sign indicating defendant’s DUI status could be removed if anyone else in defendant’s family wished to drive the car. Additionally, the court was concerned that the “scarlet letter” component of such probation conditions might negate any positive effect derived from other therapeutic conditions, such as an alcohol treatment program. The basic pattern of “scarlet letter” court decisions – southern and western state courts supporting, northern state courts opposing – follow the social and political divides that characterize the US body politic. In this sense, the expansionist trend in the number of state legislatures adopting or considering “scarlet letter” license punishments since they were introduced during the Reagan administration provides another indicator of the profound and deepening grip of religious conservatism in the United States.
This right-wing license plate discourse, however, does not operate only in negative and punitive modes. In keeping with the spirit of The Scarlet Letter as a conflict between individual choice and public control of sexuality, a new class of license plates has emerged that prescribes regulation of sexuality and reproduction. This is another face of disciplinary speech on license plates, one that promotes anti-abortion politics with visible official endorsement. The citizenry is invited to display – and pay supplementary fees for – a political demand for control of women’s bodies and re-establishment of pre-Roe norms.
Anti-abortion License Plates
America’s leading social purification movement, the anti-abortion lobby, has embarked on a legislative campaign to convert license plates into mobile mini-billboards for their cause. Currently several states have passed legislation authorizing issuance of Choose Life license plates. Revenues generated by sale of the plates are distributed mainly to adoption-counseling organizations and often exclude any abortion-counseling group from receiving funds. For example, statutes in Florida and Louisiana provide that funds from sale of Choose Life plates are to be distributed to agencies whose services are limited to counseling of pregnant women committed to placing their children for adoption, but may not be distributed to any agency involved or associated with abortion activities. Thus license plates, both as speech acts and a funding source, have been co-opted into a political debate and religious opinion.
The constitutionality of state legislation authorizing issuance of Choose Life plates has been repeatedly challenged, but the outcomes of the cases have varied and as of now, no clear precedent appears to exist. However, one of the issues that has played an important role in all of the cases, and one that all these cases share in common, is standing. Defendants – usually state motor vehicle departments -- have repeatedly sought dismissal for lack of standing and courts have dismissed several cases, focusing primarily on lack of an actual or imminent injury and redressability. This is an area of license plate law where the right to speak can be purchased, but where litigation turns on an asserted right by citizens seeking to challenge limitations of speech. Essentially, conservative courts have been employing questions of plaintiff standing to prevent challenges to Choose Life license plates. In restricting legal challenges by dismissing them on standing issues, these courts essentially reflect the same culture of speech restrictions that Choose Life license laws have sought to enact.
This legal stand-off may be affected by a March 2004 decision from the United States Court of Appeals for the Fourth Circuit, holding in Planned Parenthood of S.C., Inc. v. Rose that a South Carolina statute authorizing the words “Choose Life” on a license plate constituted unconstitutional viewpoint discrimination by the state. As in similar previous cases in other jurisdictions, the threshold question was whether plaintiffs had standing to challenge the law, i.e. whether plaintiffs could show an actual or threatened injury, that injury was caused by defendant’s illegal conduct, and that is likely to be redressed by a favorable decision.
The defendant, director of South Carolina’s public safety department, argued that plaintiffs lacked standing because of their failure to apply for a pro-choice license plate. His argument temporized that although the law did not authorize expression of an opposing viewpoint, neither it did not expressly prohibit it. The court held, however, that plaintiffs’ failure to apply for a pro-choice license plate was not fatal to their standing. It concluded that, under current law as it is phrased, plaintiffs might have been able to obtain an organizational plate but not one allowing expression equivalent to the Choose Life plate. The court held that discriminatory treatment constitutes harm sufficient to qualify as an injury for standing purposes.
Further, defendant argued that the law does not constitute viewpoint discrimination since it does not affirmatively restrict plaintiffs’ preferred viewpoint. The court ruled that viewpoint discrimination does not require affirmative, express suppression of speech. Promotion of one viewpoint over another suffices. The court pointed out that although the Choose Life license plate included element of government speech, the state in this case has created a limited forum for expression, not a government program as such and, therefore, may not engage in viewpoint discrimination.
Recently the Tennessee chapter of ACLU filed a lawsuit to stop state officials from sponsoring a Choose Life specialty plate on the ground that it discriminates against opposing viewpoints. The case, ACLU of Tennessee v. Bredesen, challenges not only the statute authorizing the plates but also the legislature’s general policy and practice of approving specialty license plates. Currently, state law makes a Choose Life license plate available to motorists for an annual fee of $35. Fifty percent of all funds raised, after expenses, go to a private anti-choice organization, New Life Resources. The plaintiffs argue that while motorists are free to make contributions to organizations of their own choosing, the state cannot set up a scheme that funnels money to organizations that represent only one side of a political debate.
Use of license plates as a forum for endorsing oppressive legal control of women’s bodies, as well as their conversion into sites of criminal punishment and shame, testifies to an intense culture war within the United States. No speech domain in the public eye remains untouched by this conflict, not even automobile license plates.