Martin Shkreli, the now-infamous former CEO of Turing Pharmaceuticals, was dubbed “the most hated man in America” by multiple media outlets in the wake of his company’s decision to raise the price of Daraprim — a drug used to treat parasitic infection in infants, people living with HIV, and cancer patients — by 5,000 percent. Within three days of the New York Times reporting the price gouging, over 50,000 Twitter users tweeted at Shkreli’s personal account, dubbing him “the personification of evil” and “parasitic trash.” His shaming seemed to prompt the hedge fund manager-cum-pharmaceutical executive to reconsider the markup; he vowed in an interview with ABC to “lower the price on Daraprim to a point that is more affordable.” The Washington Post’s Caitlin Dewey asserted the shaming had “worked, spectacularly, for the greater good” (though Shkreli’s assurances resulted in little price reduction for many patients). But as much as such expressions of anger may represent organic and important social dynamics, public shaming signifies a more perilous than effective method among some of its architects, most particularly the state. Top-down shaming directed by police represents a misapplication of bottom-up public expressions of outrage that ultimately fails to support the rule of law by operating outside it.
Hoping to utilize events such as Shkreli’s ordeal, law enforcement has begun attempting to harness the power of public reckoning to further punish malefactors for their misdeeds, particularly where the law offers little recourse for the same end. In cities from Colorado Springs to Prince George’s County, Maryland to Orange County, California, shaming those accused of soliciting sex has been recently adopted as a strategy of reducing prostitution by disincentivizing engagement with it. These cities have implemented policies ranging from publicizing the mug shots of alleged offenders at press conferences to curating Facebook albums of accused “johns,” with some waiting until after convictions for solicitation to instigate such conspicuousness and others opting to invite public judgment with a small disclaimer about innocence before proven guilt. The tactics arose out of frustration over relatively light sentences imposed for solicitation convictions and the seeming inability of the formal criminal justice system to combat sex trafficking. Unlike shaming arising from upwelling of popular outrage, here public judgment is actively sought and promoted by law enforcement.
Police efforts to elicit disgrace capitalize on the trend of public shaming like that directed toward Shkreli experiencing a revival in recent years, largely in tandem with the increasing accessibility of the Internet and the proliferation of social media. The Nation’s Cole Stryker argues that the method of the pillory, once used to enforce social and moral norms against which the law provided for no punishment, lost effectiveness when urbanization and improved transportation eroded the small, relatively isolated towns in which public humiliation possessed greater permanence. The Internet, however, has engendered a “re-villaging”: accountability to social standards can now extend beyond a physically cohesive community whose members share similar beliefs to the sphere of social media users across the globe. The ignominy of those labeled transgressors endures indefinitely, visible to a far greater number of people than might ever have participated in one town’s shaming. From the Boston reporter who lost his job in the wake of social media backlash against a joke about John Boehner to the medical device manufacturing CFO who was threatened over a video of his rude treatment of a Chick-Fil-A employee, incidents of public shaming have become increasingly visible.
A critical distinction exists, however, between the personal expressions of outrage that form many online shamings and the active recruitment of these expressions as punishment by the state. Significant concerns have been raised even over the long-lasting effects and turbulent nature of the former configuration, but it is when public shaming enters the legal sphere that the balance between effective policy and protection of due process becomes more precarious. University of Maryland law professor Danielle Citron argues humiliation endorsed by law enforcement possesses “a whole other imprimatur of credibility,” one that encourages participation in a thorny arena in which one’s legal entitlements in a criminal proceeding, rather than employment prospects, have become potential collateral damage. Citron maintains that the introduction of public shaming into the criminal justice process represents nothing less than the “Hobbesian nightmare” of judgment by the multitudes.
In some respects, police-endorsed dishonoring represents a shift from de jure punishment seen as inadequate or incapable to de facto castigation becoming more and more evident in what Slate’s Eric Posner calls “our new shaming culture.” The trouble with incorporating this de facto propensity to criticize into criminal procedures, however, is that it does not abide by the same structures that legitimize and justify the law. Shame may prove more compelling than guilt, but online shaming is a disorderly manner of enforcing standards of behavior. The social media universe will not always react to an arrest or a trial in a predictable fashion, nor will the emotional instability of a public shaming campaign ever accord easily with the ideal of blind, detached justice sought (at least in theory) by the United States criminal justice system.
In the aftermath of the Boston marathon bombings in 2013, thousands of social media users attempted to join the search for suspects, conducting witch-hunts that condemned at least four innocent individuals. One of those innocent individuals was Sunil Tripathi, a Brown University student who had gone missing one month earlier. Would-be online sleuths were convinced that Tripathi resembled Suspect #2 in Federal Bureau of Investigation photographs, who turned out to be Dzhokhar Tsarnaev. Tripathi’s family had been fighting for weeks to spread the news of his disappearance, but it was not until after the bombings that social media repeated his name; his family was inundated by journalists seeking information to corroborate false online tips. On April 23, 2013, Sunil Tripathi’s body was found and his family learned he had died by suicide. The inaccurate identification of the student as a bombing suspect as his family experienced it is chronicled in the documentary film Help Us Find Sunil Tripathi. Though law enforcement did not ask social media users to instigate this campaign, it illustrates the dangers of public shaming, unrestrained by the procedural restrictions of the legal system or, in this case, regard for any circumspection. Actively recruiting the force of shaming for use in criminal proceedings, which the Pennsylvania Superior Court condemned in August 2014 as “ not reasonably related to rehabilitation” and overwhelming the “possible rehabilitative effects that” a legal “punishment might otherwise provide,” represents an imprudent effort.
The shortcomings of the criminal justice system in punishing certain transgressions certainly deserve attention, and — as evident in Shkreli’s case — at times, individuals expressing indignation can serve a valuable purpose beyond the release of frustration. But while public shaming has become culturally resonant, bringing legal punishment from the hands of law enforcement to an arena beyond procedural control does not represent an effective reform or a path toward social progress.