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Thursday, October 12, 2006

The Future of Shaming and Restorative Justice? Part I of __

As some of you may know, I have been involved over the last five years in the academic and legal controversy over shaming punishments.  (For those readers (and colleagues!) who would think that someone who is on the record as "against mercy" must also be in favor of shaming, think again: I'm one of the critics of public shaming.)  My main interlocutor in the academy on this topic has been Professor Dan Kahan, from Yale Law School.  Kahan has been known for the last ten years as the principal defender of shaming in the legal academy.  (At times he has been joined in this cause by others including Eric Posner and sociologist/communitarian empire-builder Amitai Etzioni.) 

Some of you may have seen that Kahan recently renounced his endorsement of shaming punishments in the Texas Law Review.  In the piece, Kahan recants on shaming punishments and instead urges us to adopt restorative justice approaches as an alternative to incarceration.  Over the next week or so, I will explain the basis for, and share my reactions to, Kahan's volte-face.

To whet your appetite for this discussion, you may want to check out this short article in the Economist, which appeared today, and includes a brief shout-out to yours truly.  (Like Dan Solove's recent reactions, I was not in telephone contact with the reporter for this story, but she did check with me via email on how she was using my past writing to make sure it was fair and accurate, which I very much appreciated.  And in turn, I was able to catch a minor mistake in her working copy. I wonder if this is itself a new trend.) 

Posted by Dan Markel on October 12, 2006 at 02:55 PM in Article Spotlight, Criminal Law, Dan Markel | Permalink

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» A Thought on the Shaming Punishments Debate: from The Volokh Conspiracy
There's an interesting discussion going on in the blogosphere about shaming punishments, criminal punishments designed to embarrass or shame offenders. See, for example, [Read More]

Tracked on Oct 13, 2006 3:36:14 PM

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"brief shout-out to yours truly." That's overly modest. Half the article is Markel this, Markel that! Kudos! The Economist is the bomb.

Posted by: Bart Motes | Oct 12, 2006 4:09:07 PM

Thanks Bart. If you're not more restrained in praise, however, I'm going to be suspected of having a sprezzatura problem here on the blog :0)
http://www.nytimes.com/2006/09/17/magazine/17wwln_q4.html?ex=1316145600&en=1c756bcdcdee5f10&ei=5088&partner=rssnyt&emc=rss

Posted by: Dan Markel | Oct 12, 2006 4:25:23 PM

Well, you can just point doubters to my rather ferocious criticism of Joe Lieberman: http://prawfsblawg.blogs.com/prawfsblawg/2005/11/if_joe_says_it_.html

and your buddy Marty Peretz: http://prawfsblawg.blogs.com/prawfsblawg/2006/10/some_nonsequito.html

Don't worry, I'll think of something mean to say about you. Maybe I can subcontract.

Posted by: Bart Motes | Oct 12, 2006 5:42:23 PM

Dan,

Have you ever followed up to see how Gementera felt about the experience of his shaming punishment? To the extent that your theory relies on predictions about their impact, I would think it would be important to interview him about the experience.

Posted by: Orin Kerr | Oct 13, 2006 12:20:01 AM

I haven't interviewed him; in any event, that would just be one data point, and as Michael Heise has repeatedly educated us: one data point is not a theory :-) Moreover, my arguments about shaming have been about why it's wrong for the state to do it rather than what the special effects on the defendant are. As it happens, G did commit the same crime shortly thereafter and has been resentenced to incarceration. The shaming, in other words, didn't "work." But that's just one data point too.

Posted by: Dan Markel | Oct 13, 2006 7:32:48 AM

I've actually been in contact with Judge O'Scannlain from the Gementera trial. Gementera performed his shame punishment...and was then found with post that was not his a short while afterwards. He was then sentenced.

I frankly think it was good of the court to offer this 'shame' punishment instead of sentencing. It didn't work in this case, but I'd be curious to see how it might work if used more extensively before claiming it's ineffectual.

Posted by: Thom Brooks | Oct 14, 2006 10:39:51 AM

I would have thought shaming was about making the behaviour undesirable to others. You would create a gap between the offender and, presumably, his peer group by making him look bad to them (if the gap is just between the offender and thewider society then it is less shame). that might in itself be of value in some cases.

Eg to many being a gangster murderer is in a sense prestegious and worthy of respect. Examples of defiant and unrepentant people strengthens that. There is a continum betwen pride and shame and it might take a psychologist to manage it but if someone was proud of a crime there might be some value in giving the crime negitive associations (where a blunt tool like prison may not work).

Posted by: GeniusNZ | Dec 22, 2006 10:59:59 PM

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