Zero Tolerance, Naming and Shaming: Is There a Case for it with Crimes of the Powerful?
| Author | John Braithwaite,Peter Drahos |
| DOI | 10.1375/acri.35.3.269 |
| Published date | 01 December 2002 |
| Date | 01 December 2002 |
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THE AUSTRALIAN AND NEW ZEALAND JOURNAL OF CRIMINOLOGY
VOLUME 35 NUMBER 3 2002 PP.269–288
Paper to Australian and New Zealand Society of Criminology Conference, 30 September,
1999, Perth. Portions of this paper appear in an earlier version in Global Business Regulation
(Braithwaite & Drahos, 2000).
Address for correspondence: Professor John Braithwaite, Research School of Social Sciences,
Australian National University, Canberra, ACT 0200, Australia. Email: john.braithwaite
@anu.edu.au
Zero Tolerance, Naming and Shaming:
Is There a Case for it with Crimes
of the Powerful?
John Braithwaite and Peter Drahos
Australian National University, Australia
Zero tolerance and public shaming are increasingly advocated for both
crimes of the powerless and crimes of the powerful. In this essay we
argue against zero tolerance with respect to both kinds of crime.
However, we defend naming and shaming with respect to crimes of the
powerful. Part I of the paper begins from the assumption that both zero
tolerance and naming and shaming are policies that do not merit serious
consideration with crimes of the powerless. It then goes on to consider
harder questions: first whether zero tolerance and then naming and
shaming have a place with crimes of the powerful. Drug abuse is used in
Part II as a case study to explore these distinctions. It will be contended
that zero tolerance is a prescription for increasing drug abuse, but that
naming and shaming is essential to the prevention of drug abuse. This
conclusion is reached by viewing the drug problem differently from
conventional criminological analyses in a radically reconfigured context
as a corporate crime and organisational regulation problem.
Part I
The New Politics of Crime
Public shaming of criminals as by putting a sign on a fence saying an assaulter lives
here, Megan’s Law, a bumper sticker saying I am a drink driver or a T-shirt saying I
am a thief are part of a new politics of crime in the United States (US) that has
had some influence in other countries including Australia (Pratt, 2002). Prime
Minister Howard has said he believes in zero tolerance to the point of advocating
automatic expulsion of dope smokers from school. It is hard to think of any policy
better calculated to increase crime than automatic expulsion from school, with all
the stigmatisation that involves, for minor offences. Even though zero tolerance is
an incoherent, uncivil and dangerous criminal policy (Dixon, 1999; Cunneen,
1999), there are aspects of its vaguely specified set of prescriptions that might
actually reduce crime in the context of large US cities. The main one is reducing
homicide by targeting gun carrying at the hot spots where the majority of serious
crimes occur.
The new politics of criminal justice does tap an underlying truth that in order
to create a society with less violence, we do want a society where people are
ashamed of violence. The problem with zero tolerance and public shaming is that
they leap from that truth to policies that stigmatise and degrade, even for minor
incivilities on the street. It is not simply that stigmatisation is a less effective way of
making people feel ashamed of wrongdoing than reintegrative shaming; it actually
makes them feel less ashamed. It is not that respectful disapproval within commu-
nities of care works while stigmatisation does not; stigmatisation actually increases
crime. Restorative practices pave the more productive path to inducing the
remorse, constituting the shamefulness that prevents crime (and averting the
humiliation that causes it) than zero tolerance.
But how are we to react to the entreaties from the progressive side of politics for
zero tolerance, naming and shaming? How do we think about the critic who says to
John Howard that he ought to apply his philosophy of zero tolerance to his parlia-
mentary ethics code, to members of his party who fiddle their expense accounts?
How do we respond to Steve Biko’s family’s assertion that it was unjust for the
Truth and Reconciliation Commission to extend forgiveness to so many criminals
of apartheid in the name of restorative justice? In the context of East Timor, how are
we to respond to pleas for zero tolerance for crimes against humanity? What do we
think of the feminist who says “no excuses ever, ever” for violence against women?
Or who advocates shaming punishments for campus date rapists (Baker, 1999)?
ZERO TOLERANCE OF ORGANISATIONAL CRIME?
In this section we will address only one kind of public advocacy of zero tolerance
and public shaming — that which we see in the corporate crime literature. Our
conclusion will be that zero tolerance is always a bad prescription in this arena, but
that naming and shaming is often a necessary part of an effective criminal policy.
Each year between 1985 and 1995, when one of us was a part-time commis-
sioner with the Trade Practices Commission, the commission would receive around
50,000 complaints. Many of them did not involve breaches of the law, but in our
opinion the majority did (obviously an opinion we cannot prove). In a good year
the commission would take about 30 of them to court. Most business regulatory
scholars see the Australian Trade Practices Commission as a comparatively tough
agency, with a sophisticated enforcement strategy that makes the business commu-
nity sit up and take notice (see Ayres & Braithwaite, 1992; Yeung, 2001).
A lot of the effectiveness of the TPC then and the Australian Competition and
Consumer Commission today is about the sophistication of its triage: 1) This case
is an allegation we can help the complainant sort out with a bit of advice as to
what they should say to the trader. Or it is an allegation we can sort out ourselves
with a couple of phone-calls or a conference with the principals to negotiate an
informal settlement. 2) Another complaint is viewed as spurious or a hard allega-
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JOHN BRAITHWAITE AND PETER DRAHOS
THE AUSTRALIAN AND NEW ZEALAND JOURNAL OF CRIMINOLOGY
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