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Wednesday, October 18, 2006

The Future of Shaming (and Restorative Justice), Part 5 of ___?

Readers interested in some background to this topic should check out posts one, two, three, and four of this series. The second post in particular has some fruitful discussions and exchanges in the updates and comments. The fourth post provides some background on the movement for alternatives to incarceration. Readers interested in Prof. Dan Kahan's article, to which this series of posts is responsive, can find it here.

Earlier, in the third post of this series, I intimated that Yale prawf Dan Kahan’s disavowal of shaming punishments stems not from a conclusion that shaming is itself a pernicious social practice—but rather from a perception that shaming inelegantly bolsters the worldviews of those who stand for hierarchy and community while at the same time denigrates the worldviews of many “egalitarian” or “individualistic” citizens. According to Kahan, this political dynamic also explains the demise of corporal punishment, and thus proves a useful lesson.

With respect to corporal punishment, Kahan writes that “[h]istorically, the imposition of physical pain as a mode of punishment was characteristic of hierarchical relationships: it was the way that sovereigns disciplined subjects, masters disciplined slaves, parents disciplined children, and husbands disciplined wives.” Because history endowed corporal punishment with these various meanings that flouted “the more egalitarian and individualistic” mores of the Northern states, corporal punishment fell out of favor.

When this “partisanship” mode of penal analysis is applied to shaming, Kahan sees similar problems.

Shaming shares similar problems with corporal punishment because, according to Kahan, for many people, it connotes “objectionable forms of social stratification and potentially suffocating impositions of communal norms.” Looking at its historical context, Kahan sees that “shaming punishments occupied a conspicuous place in the penal tool kit of hierarchical regimes; indeed, shame played as large a part as the infliction of pain in many colonial corporal punishments—the stocks being a prime example.” Looking at its modern day equivalents, Kahan realizes that when judges allow a defendant to choose either paying a fine or having his ex-wife spit in his face, shaming is invariably communicating contempt for the offender.

Unlike shaming or corporal punishment, incarceration is, by contrast, capable of appealing to various worldviews, at least according to Kahan. And because of that “expressive overdetermination,” incarceration has flourished as a punishment strategy. All this leads Kahan to conclude:

[m]embers of society … expect punishments—and essentially all laws for that matter—to affirm the core values that animate their preferred ways of life. Modes of punishments that are equivalent in their power to convey moral disapproval might still convey radically conflicting messages about the nature of the ideal society. What’s really wrong with shaming penalties, I believe, is that they are deeply partisan: when society picks them, it picks sides, aligning itself with those who subscribe to norms that give pride of place to community and social differentiation rather than to individuality and equality.

Without knowing more about his views, one might be tempted to read Kahan as indicating that it is wrong for the state to pick punishments that are partisan because a liberal state should try to remain neutral among the competing worldviews of diverse citizens. In other words, perhaps Kahan is saying that shaming is wrong because it is incompatible with the fact of value pluralism. This reading, however, would be incorrect. Indeed, if Kahan were motivated by a concern that punishment strategy should be part of a broad social consensus, then he would presumably include some discussion of or perhaps a citation to John Rawls or Ronald Dworkin. But nowhere in his renunciation does Kahan engage or elaborate the philosophical claim that because shaming is incompatible with differing worldviews it should be avoided on that fact alone.

Rather, what appears over the course of Kahan’s essay is a plainly pragmatic concern: because shaming resonates as a partisan tool, it won’t effectively capture a broad coalition of supporters, and without that support, shaming won’t be a “politically acceptable” replacement for incarceration. Notice then that Kahan is not rejecting shaming on its relative merits so much as its possible popularity. In other words, what’s “really wrong” with shaming, from Kahan’s vantage, is not that they are actually or really wrong, but rather that some people think they are wrong. Kahan simply thinks they are not a viable alternative to incarceration because they are politically divisive.

This is, you can see, an unusual renunciation -- it reveals that Kahan does not actually believe that shaming punishments are now “wrong.” Of course, in a pluralistic liberal democracy, recognition that a social practice is divisive, and therefore to be avoided, is one way of showing one’s respect for other citizens’ views. (And perhaps in some spheres of discourse, such as religion, the concern about political divisiveness is especially salient and worrisome. ) But surely other modes exist by which we can convey one’s respect for each other and at the same time pursue or advocate different social practices.

Indeed, another way of showing one’s respect for different views is to submit these competing views to institutions of democratic politics constrained by constitutional norms and judicial review. In fact, this is the familiar way by which we resolve the tussles over values and consequences in criminal law controversies. In this familiar way, I show my respect for you as a political equal by our joint participation in a marketplace of political ideas in which we agree to use procedurally neutral mechanisms to advance policy. Sometimes I lose, sometimes I win, but we show each other mutual respect by abiding by the rule of law that arbitrates these outcomes. So why should shaming punishments be removed from this process of competitive and/or deliberative politics? Why would Kahan, shaming’s leading academic supporter, pack up his bags on the fact of division alone?

Kahan’s defection from shaming punishments is especially puzzling considering that the opposition Kahan faced regarding shaming came largely from a small group of law professors. Kahan does not marshal any empirical evidence that shaming is significantly divisive along broader swaths of the nation; he relies almost exclusively on the evidence that a few people he likes have disagreements with him about this issue. But it might well be that, as an empirical matter, Kahan was initially correct that many, and perhaps most, social groups would glom on to shaming punishments—precisely because they may deter and express social condemnation of nonviolent offenders at a cheaper social cost than imprisonment. By contrast, relying on law professors’ published views as an indicator of popular sentiment is likely to be misleading. Law professors, after all, are rewarded for advancing contrarian or counterintuitive views.

I say this not because I want to encourage further the recrudescence of shaming punishments or to give succor to shaming’s defenders. On the contrary. Rather, I simply cannot see why Kahan, who viewed shaming punishments as a net gain for society, would give up on shaming based on some initial academic opposition alone. Our society, after all, is actually divided over the use of the death penalty, gun control, the war on drugs, and the scope of reproductive rights for women. But the fact of division on shaming or other issues is not evidence that Kahan’s particular side in the debate is wrong. And the fact of division should not deter someone from exposing a practice to be socially wasteful, arbitrarily enforced, or plainly cruel – if that is in fact what it is.

In an especially shrewd set of observations, Professor Michael O’Hear suggested that shaming punishments might be distinguished from the other divisive issues such as gun control or abortion rights because shaming punishments might be trying to effectuate a moral education of the offender and others in society. On this view, shaming would serve to teach offenders and others about basic social norms, and would do so in a manner that was potentially more vivid and less costly than incarceration. O’Hear’s comments warrant emphasis because if shaming really is about punishment’s educative capacity, then Kahan’s concerns about shaming’s partisanship would undermine shaming’s capacity to actually achieve moral education.

The problem with this rescue attempt, at least with respect to justifying Kahan’s renunciation of shaming, is that it gestures at a different and more complex version of shaming than that which has been previously defended by Kahan. Indeed the educative emphasis O’Hear puts on shaming speaks much more in the register of Professor Garvey’s analysis of educative alternative sanctions, or what I call “guilt” punishments, than the kind of shaming endorsed in Kahan’s prior work. While Kahan acknowledged the potential for some shaming punishments to work a “moral education,” his prior endorsement of shaming punishments was never contingent on making shaming morally educative or on the existence of subsequent reintegration ceremonies, which would more likely achieve a “moral education.” Rather, the focus for Kahan, as I read him, was on shaming’s capacity to convey moral condemnation of the offender that is comparable to prison but can be delivered at a lower social cost than incarceration.

All this raises a fundamental question about Kahan’s project: is he just interested in reducing the intensity of the skirmishes in criminal law politics—or is there a greater vision of a just and attractive society here? If it is just the former purpose, then why not simply refer the matter of shaming punishments to the democratic institutions (constrained by constitutional norms and judicial review) that typically manage these “partisan” conflicts? What’s special about shaming punishments that ordinary political institutions can’t deal with them? Does Kahan fear that our courts and legislatures are ill-equipped to deal with shaming punishments? If so, why?

On the other hand, if Kahan has a vision of a criminal justice system he wants to see realized, then why not be more explicit about the fact that normative arguments are necessary to articulate judgments of the well-ordered society and to persuade others to share them? Why give up on shaming based on the alleged fact of division alone? (I understand that institutions with scarce resources might pragmatically choose to allocate those resources to the strategies they find most likely to succeed, but law professors tend not to be so, um, constrained such that they "recant" their earlier choices to pursue reform.)

Tomorrow: Do Kahan's Critics of Shaming Suffer from Status Quo Biases?

Posted by Dan Markel on October 18, 2006 at 12:25 AM in Article Spotlight, Criminal Law, Dan Markel | Permalink

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