Sandwich Boards of Shame for Convicted Execs

Imagine that Enron’s former chief, Kenneth Lay, is convicted of the fraud and conspiracy charges he faces. Now imagine that as punishment he is ordered to walk the streets of Houston wearing a sandwich board that reads: “I cheated my shareholders, employees and retirees.”

Or what if WorldCom’s former CEO, Bernard J. Ebbers, were found guilty and forced to do penance by walking down Wall Street in a T-shirt emblazoned with the words, “I cheated and stole money.”

A 9th Circuit Court of Appeals decision this week has made these fantastical “what ifs” a little more realistic. It upheld a lower court’s decision to punish a convicted San Francisco mail thief by having him stand for one day outside a post office, wearing a sign that said, “I stole mail. This is my punishment.” He also received jail time.

In their appeal, the mail thief’s lawyers argued that wearing a sign in public amounted merely to “humiliation as an end in itself” and was unreasonable, a violation of sentencing guidelines. But two of the three judges on the 9th Circuit panel disagreed, holding that, among other things, public shame could relate to rehabilitation.

American courts and legal scholars have been debating the usefulness and legality of shame as a punishment for decades. But as the dissenting judge in the case noted, there is little in the way of judicial guidance on the matter. The new decision by a leading federal appellate panel may well put the issue before the Supreme Court.

To date, sentences that include a humiliation component have mostly been used for drunk drivers, thieves and corrupt police officers, but corporate criminals would surely be a better target. Moguls live glittery lives and seek public approbation. Let those who deserve it take their punishment in the public arena as well.

Shaming such criminals might give those who lost their jobs, savings and retirements some sense of justice. Where there is little hope for restitution, even a guilty verdict doesn’t offer the victims a lot of satisfaction. They want justice on the retail level -- sandwich boards on the street corner, for example.

Secondly, the fear of public humiliation might prove to be a corporate-crime deterrent. Certainly the threat of jail time and fines has not been effective.

Of course, sandwich boards conjure up, as the dissenting judge on the 9th Circuit panel wrote, “a time in our history when pillories and stocks were the order of the day.” There is also the argument that humiliation sentencing violates the 8th Amendment ban against “cruel and unusual punishment.” Hardly. Public punishment by placement in stocks or flogging is a far cry from sandwich board punishment.

Even Hester Prin isn’t a good comparison. Nathaniel Hawthorne’s heroine, punished for ignoring the puritanical mores of the time, ultimately brandished her scarlet letter with pride. I doubt that would be the case for fallen moguls.

In sentencing the mail thief, the trial judge said: “[He] needs to understand the disapproval that society has for this kind of conduct, and that’s the idea behind humiliation.”

That same admonition should be applied to the corporate crook. The only question is do we have enough street corners on Wall Street to accommodate them all.

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Lawyer Benjamin Bycel was the founding director of the Los Angeles Ethics Commission.