When Dharun Ravi was convicted last week of committing bias crimes against his Rutgers roommate, Tyler Clementi, some commentators described it as a “watershed” moment, a rejection of the notion that the defendant was merely a “jerky kid.” Others saw prosecutorial overreaching in a situation they viewed as a roommate conflict that ended tragically. Maybe both sides have a point. To me, the case suggests a space for another system of social sanction, one I’ll call civil censure.
We rely heavily on our criminal punishment system to send normative messages. Maybe too much. In a heterogenous society in which citizens do not share a common religion or moral code, we sometimes are forced to resort to criminal punishment when other forms of suasion might be more finely calibrated.
Proponents of hate crimes penalties say that society must condemn all acts of bias against gays and lesbians, including non-violent wrongs. Critics counter that we should not feed a bloated and biased criminal punishment system. At Slate, Emily Bazelon writes that the Rutgers case demonstrates how “laws sometimes enforce social norms even if they haven’t fully taken hold.” But theorists have recognized that criminal sanctions (particularly harsh ones) are imperfect instruments to change “sticky norms.”
Certainly, some acts, such as Matthew Shepard’s murder, are paradigmatic hate crimes, and should be punished as such. And many have no sympathy for Dharun Ravi, who turned down plea offers. Bazelon concludes that Ravi’s conduct fits the New Jersey statutes under which he was convicted (although in both the Slate piece and a NYT op-ed she writes that the likely punishment is too harsh).
Clementi’s father told the New York Times that he hoped the case would send a message to middle- and high school youth. Do we need to use the criminal punishment system to do that?
A civil censure system would operate as an alternative to criminal prosecution. Like censure for members of Congress, or of a profession, it would involve an official statement of wrongdoing; specifically, the violation of the rights and dignity of another citizen. However, civil censure would not entail all of the collateral consequences of criminal conviction, such as deportation or the loss of voting rights, and would not further contribute to our overgrown prison system. (This might sound like Kahan’s advocacy of shaming sanctions in the 1990s, but it differs in that civil censure would be an alternative system, rather than an alternative sanction, and that in my conception it does not rely on public degradation).
Of course, there are many risks in suggesting the creation of another state system empowered to make solemn pronouncements of wrongdoing. The proposal raises innumerable procedural and substantive questions. But high-profile bullying incidents suggest the need for another way–a means of formally expressing societal condemnation without turning yet again to the tired remedy of criminal conviction and jail time.
The same week that Dharun Ravi was convicted, hundreds of thousands signed an online petition urging authorities to take action against the Florida man who shot unarmed African-American teen Trayvon Martin. For good reason, many Americans view our criminal punishment system as illegitimate. That may be the best reason not to use it to teach lessons.
Posted by GiovannaShay on March 21, 2012 at 01:13 PM
Comments
Thanks for that correction, anon. I amended my post. –GS
Posted by: Giovanna Shay | Mar 22, 2012 12:35:06 PM
You’ve misread the NYTimes article. Clementi viewed Ravi’s twitter feed (on which Ravi posted about Clementi) 38 times. Ravi did not write 38 different posts about Clementi.
Posted by: anon | Mar 22, 2012 11:54:47 AM