For shame: paying for crime without serving time, but with a dose of humility.

Fed up with crime and the increasingly unrepentant nature of the miscreants who are committing it, some judges are doling out public humiliation instead of prison time.

Also known as scarlet-letter punishments or public shaming, the ancient practice is making a comeback in state and local courts, where sentencing guidelines are more flexible than in federal court. Convicted drunk drivers, for example, have been required to wear pink hats while performing community service or to affix bumper stickers to their cars warning other drivers of their conviction. Some of these stickers also warn passing drivers to watch for erratic driving and to report their findings to local police.

In Boston, men who are convicted of soliciting prostitutes are given brooms and shovels and forced to sweep the condom littered streets of the local red light districts they patronized.

Most of these shame sentences are designed to prevent recidivism by thoroughly humiliating the offender in front of his or her peers. This type of societal condemnation takes many forms. Often, it is limited only by the sentencing judge's imagination

In Houston, for example, state court Judge Ted Poe has become known in some circles as the "King of Shame" for his frequent and imaginative imposition of these sentences. He calls them public punishments, and he says they work.

"As a judge, I came to realize that the victims are the ones being humiliated--not the defendants," Poe said. "That's backward, and it's wrong. Public punishments right this wrong."

Some of his more recent public punishments include sentencing

* a man who lied in his courtroom to walk back and forth in front of the courthouse carrying a sign that read: "I lied in court. Tell the truth or walk with me."

* a convicted wife batterer to make a public apology to his spouse at high noon while standing on the steps of city hall. Poe invited the press and local townspeople to attend to increase the level of shame for the abuser.

* teenagers who had vandalized schools out of boredom to go back to the schools, apologize to all the students, and explain their actions.

* criminals of various stripes to clean out the stalls of the Houston Police Department's horse stables.

Poe is unapologetic about his actions because, he said, they force criminals to think about their misdeeds. "If people are humiliated publicly, they will think twice before they commit another crime," he said. "It's all about attitude adjustment. Most people care about what others think about them."

Meting out shame sentences, Poe believes, is also an effective way of telling criminals that the community does not want the offense repeated. "It sends a strong message to onlookers: `Don't do what I did or you will be where I am,'" Poe said.

Steven Dodd found out the hard way that Poe means what he says. Dodd was convicted of interfering with a child custody agreement after he took his two children out of state for five years. Poe sentenced him to 180 days in jail and 10 years of probation. As a condition of probation, Dodd had to toil 20 hours a month mucking out the Houston Police Department's stables--for the duration of his 10-Year sentence.

"That's a lot of horse manure," Dodd said. "It's definitely a deterrent. I dont's went to go back and do something like that again." Dodd's sentence ultimately was suspended after 6 years and 1,572 hours in the stables. (Haya El Nasser, Judges say `scarlet letter' angle works, USA Today, June 25, 1996, at 1A)

Despite shame sentencing's apparent success in court cases like Dodd's, Poe readily acknowledges that public punishment is not appropriate in every case. "Convicted violent offenders and habitual offenders need and receive jail time when they appear before my court."

Not everyone, however, is as convinced as Poe that the trend of shame punishment is the answer to the nation's criminal justice problems.

Jeffrey Needle, secretary/treasurer of ATLA's Civil Rights Section, calls shame Punishments "an abuse of judicial discretion." Needle acknowledges that there is a need for creative judicial sentencing, `especially in light of prison overcrowding and a refusal on the part of many criminals to finish performing the required hours of community service that are typical of traditional sentencing guidelines. "I don't want to hamstring judges regarding sentencing," Needle said, "but shame sentencing is not productive--it's a step backward, not forward."

Erwin Chemerinsky, a law professor and constitutional scholar at the University of Southern California in Los Angeles, agrees. "The wave of retributive sentiment is very strong right now, and I'm troubled because there aren't limits guiding the trial courts as to what they can do. Without legal limits, the social question becomes, To what extent are we as a society going to accept this kind of punishment?" Chemerinsky said.

Needle said that judges have been emboldened to use shame punishment in large part as a reaction to the get-tough-on-crime attitude that has been sweeping the nation. Judges who stand for reelection, he said, are particularly vulnerable to public pressure. "I'm sure some of them feel that they must give the public what it wants--or be voted off the bench," said Needle. "But I still think regular community service is a much better idea."

Mark Kappelhoff, legislative counsel for the national office of the American Civil Liberties Union (ACLU), monitors and tracks shame punishment. He said there have been no studies done or statistics kept on this type of sentencing. "The sentences have been slow to reach the appellate level, in part because they usually are handed out as the result of a guilty plea and in part because they are relatively new," Kappelhoff said.

Higher courts considering shame sentencing have reached mixed conclusions.

At least two appellate courts have upheld isolated shaming penalties. (Lindsay v. State, 606 So. 2d 652, 653 (Flat Dist. Ct. App. 1992); Coldschmitt v. State, 490 So. 2d 123 (Flat Dist. Ct. App. 1986).)

But in 1995, a Nassau County, New York, judge's attempt to force a convicted drunk driver to display special license plates was overturned by that state's highest court. And last year, a Tennessee man who had pleaded guilty to molesting teenage boys and was ordered to post a warning at his home appealed until the sentence was struck down by the state supreme court. (Jan Hoffman, Shaming Penalties: When Public Humiliation Is Judges Sentence, N.Y. Times, Jan. 16, 1997, at A1.)

In the New York case, the judge considering six-time offender Roy Letterlough's case directed him to affix fluorescent signs reading "Convicted DWI" to the license tags of any car he drove during his probation.

The appellate court affirmed, citing the two Florida cases. The New York appellate court found "no statutory or constitutional violation in the imposition of [the special condition requiring defendant to place the fluorescent signs on his car]."

New York's highest court reversed. It found that the sentence "is not reasonably related to defendant's rehabilitation, and, more generally, because, in the absence of more specific legislation, such a condition [of probation] is outside the authority of the court to impose." The court added that the creation of punishment for crimes rests with the legislature. (People v. Letterlough, 631 N.Y.S.2d 105 (N.Y. 1995).)

In the Tennessee case, the sentencing judge ordered convicted child molester Wayne Burdin to erect a four-by-eight-foot sign with black letters over a yellow background that stated: "Warning, all children. Wayne Burdin is an admitted and convicted child molester. Parents beware." The court ordered that the sign be maintained for a period of six months, during which time Burdin would be under house arrest.

Burdin appealed, saying the sentence violated his Eighth Amendment rights and was not authorized by Tennessee's Criminal Sentencing Act of 1989.

In its opinion, the Tennessee high court rejected the Florida courts' findings in Lindsay and Goldschmitt, noting, "These pronouncements by the Florida courts notwithstanding, the Tennessee statute does not allow `breathtaking' departures from conventional principles of probation." (State v. Burdin, 924 S.W.2d 82 (Teen. 1996).)

Chemerinsky agreed with that court's finding. "If legislatures want to allow shame sentencing, there should be a statutory authorization for it," he said. "Of course, the ultimate question would be, Is this cruel and unusual punishment?"

Judicial traditions of discretion vary from state to state, Chemerinsky noted. "That is one reason why there have not been clear standards from appellate courts on whether shame sentences are allowed."

To what extent shame sentencing remains a viable judicial option is open to debate. Kappelhoff, for one, hopes that the practice is a trend that reverses itself. "This gratuitous humiliation of individuals serves no societal purpose and stems from revenge and retribution," he said. "Shame sentencing has no place in a civilized society."