Professor Bainbridge...on law, politics, religion, culture & food

Lori Drew Verdict and the Virtue of Shame

Wkipedia:

Megan Taylor Meier[1][2] (November 6, 1992 – October 17, 2006) was an American teenager from Dardenne Prairie, Missouri who died by suicide in October 2006.[3] Her suicide was attributed to cyber-bullying through the social networking website MySpace. The account through which the bullying took place purportedly belonged to a 16-year-old male named “Josh Evans,” but was actually created and monitored by the mother of a friend of Meier,[4] whom a police report identified as Lori Janine Drew.[5]

The purpose of the cyberbullying was to use Megan’s e-mails with Josh Evans to later humiliate Megan in retribution for her spreading gossip about Sarah Drew, the daughter of Lori Janine Drew

Jezebel:

Lori Drew has been found not guilty of felony hacking charges, but was convicted of three misdemeanors, according to Wired. The one charge of conspiracy remains undecided, as the jury was deadlocked on that count. Wired elaborates: “Jurors found Drew guilty only of conspiring to gain unauthorized access to MySpace for the purpose of obtaining information on Megan Meier — a misdemeanor that will likely carry no jail time. The jury unanimously rejected the three computer hacking charges, and a felony conspiracy charge that alleged the unauthorized access was part of a scheme to intentionally inflict emotional distress on Megan.” CNN legal analyst Jeffery Toobin says that Drew is likely to get probation and nothing more. There is still a chance that Judge George Wu may throw out the entire case and acquit Drew, as he said he would decide on a defense request after the jury’s verdict.

Legal scholars for whom I have a lot of respect, such as Orin Kerr and the good folks at the Electronic Frontier Foundation, have argued persuasively that the federal charges were based on a dubious reading of the relevant statutes. Having said that, what Lori Drew and his cohorts did was morally reprehensible and, sadly, they seem to have exhibited no sense of remorse or even understanding that they had done something wrong.

There has been a long debate on the merits of social shaming as a sanction. I think cases like Drew’s illustrate forcefully that shaming has a legitimate place in social regulation. Her conduct was—and probably should not be—criminalized. Yet, she has been subjected to an array of reputational and other social sanctions that, one may hope, serve as a social purgatory. It’s not clear that Drew can be rehabilitated (remorse is usually the first step in any true rehabilitation), but perhaps the next Lori Drew can be deterred. In addition, shaming sanctions also function as a means of retributive justice.

Interestingly, Orin Kerr--who eventually joined Lori Drew’s defense team-- has written that:

I think that so-called “shaming punishments” are less of an affront to human dignity than most other punishments, such as severe prison sentences. ...

Don’t [shaming punishment’s] rely on, and ultimately reinforce, the notion that the offender is a valued member of the community? It seems to me that the offender feels shame precisely because he values his position in the community. Thus judges hand down such punishments only when they think the offender values his position and will want to restore it to its earlier status. In that sense, then, shaming punishments are not about dehumanization, but about hope and community: the punishment is based on and recognizes the hope that the offender will feel a strong enough connection to the community that he will feel shamed, and that the community will value that person’s connection to the community enough to react to the offender. Put another way, only a community that values its members would find shaming punishments punishment at all. If no one cares about the offender, and the offender doesn’t care about anyone else, there is no shame and no punishment. In that case, they can just lock him up and throw away the key.

To be clear, this doesn’t mean that shaming punishments are good; I don’t see myself as an affirmative proponent of them. Like any type of punishment, shaming punishments may be appropriate in some cases and will be inappropriate in others. My point is only that I find flat opposition to them based on human dignity concerns to be unpersuasive.

Granted, Orin doesn’t endorse shaming punishments and, in any case, is discussing judicial punishments intended to shame rather than social sanctions. Yet, the argument about community seems to me to be an argument for precisely the sort of social sanctions to which one hopes Lori Drew will remain subject.