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Friday, October 13, 2006

The Future of Shaming, Part 2 of ___

Over at Sentencing Law and Policy, Doug Berman has done me the honor of responding to my post of yesterday and my excerpted arguments in the article in the Economist.  As I mentioned yesterday, I was planning on releasing a few posts over the next week, but today I want to highlight and respond to a few things Doug has said.

First, it bears mention that now that Dan Kahan has "recanted," Doug Berman might be the only person left in the legal academy who now supports shaming punishments today.  Others might also, like Sherry Colb, but her enthusiasm in the Findlaw article wasn't quite so robust.  Are there others? It seems that Eric Posner has also modified his position on shaming, at least for most offenders who might otherwise be eligible.

Here's what Doug wrote (indented) and my responses to it.

Dan is a critic of public shaming, and the article reports that he believes "shaming punishments undermine human dignity."  Because I generally support shaming punishments (and most alternatives to incarceration), I want to unpack this claim a bit:

1.  This critique of shaming, like similarly deontological critiques of the death penalty and other punishment, is just a declaration refutable by a counter-declatation.   I can simply assert that shaming punishments actually honor and strengthen human dignity.  (Shame seems uniquely human.  Notably, we do not shame bad animals, we just lock them in cages or kill them.)

You could simply assert things by counter-declaration, but the fact of disagreement doesn't entail that there is not a correct position on the matter.  To your point: most people, situated in the social norms we have, would not recognize public humiliation as a way to honor or strengthen human dignity. It's not like we take our war heroes and publicly shame them. Instead we throw ticker-tape parades. Why is that? Because the social meaning of public shaming serves as a constraint on public policy choices. (This is one of Kahan's contributions to the debate.)

2.  As I have said before, shaming punishments must be considered against the backdrop of other punishments and our society's modern over-reliance on incarceration.  Is locking lawbreakers in tiny cages better for human dignity than shaming them?   As I stressed here after a recent NPR series on Supermax solitary confinement, our imprisonment policies involve a stunning assult on human dignity.  Consider again this snippet from NPR:
Wino is a 40-something man from San Fernando, Calif.  He was sent to prison for robbery.  He was sent to the SHU for being involved in prison gangs.  He's been in this cell for six years. "The only contact that you have with individuals is what they call a pinky shake," he says, sticking his pinky through one of the little holes in the door.  That's the only personal contact Wino has had in six years.
3.  According to the piece in The Economist, Dan's concern is with any punishment that incorporates a "public-humiliation factor."  But, given our society's extraordinary (and very costly) reliance on severe private deprivations through mass incarceration, I continue to believe we should be more willing to experiment with novel and public punishments.

Points 2 and 3 are related. But beware the red herring here.  Doug and I agree  that we need strategies for  alternatives to mass incarceration.   We agree that  conditions of confinement  for many offenders  are  incompatible with human dignity. Where we disagree is the means to resolve this: I say we should use non-humiliation and non-carceral alternatives where feasible (e.g., many non-violent offenders), and improve the conditions of confinement.  Doug says we should allow shaming as part of the arsenal of punishment.

To be sure, America's carceral strategies, especially at the maximum security or supermax level, are very tough.  On the other hand, many of the inmates in those prisons are very dangerous persons.  I take it that even Doug wouldn't allow Wino, convicted of robbery (which is a crime of violence) and implicated in prison gangs, which are responsible for much of the most harrowing depradation of life in prisons, to be simply shamed for a few hours outside the house of the person he robbed.  If that's true, the example of Wino is a distraction from the issue of the propriety of shaming.

Update:  Doug B. has updated his post and refined the challenge. He asks:

Has any modern shaming punishment ever produced personal harms or society costs anywhere close to the harms and costs to be endured by, say, Robert Berger, the Phoenix high school teacher sentenced to 200 years in prison for a first offense of possessing child pornography?  I think shaming sentences could be a lot more effective and humane for the Bergers of the world (case basics here, commentary here and here).  I wish academics worked up about shaming (or the death penalty) would be more concerned about the affront to human dignity and the principles of liberty represented by lengthy sentences of incarceration.  Dan will surely say he is against Berger's sentence, but at some point he must confront the reality that anti-shaming advocacy greatly reduces the likelihood that the public and politicians might start to seriously embrace alternative punishments.

Doug is surely right that I am against Berger's sentence. It's a travesty, really.  But consider:  it's not as if I (or other anti-shaming) critics spend all my time working on anti-shaming or even against the death penalty;  I and other anti-shaming critics have written about all sorts of issues in the criminal justice system.  The problem is that shaming is the topic about which I get called  or consulted by the media the most frequently.  That's why every time I write or speak to a journalist about shaming, I also explain why incarceration is used too often for too long, and propose other non-humiliation and noncarceral strategies.  And just because mass incarceration is perhaps the most severe problem in the CJS it doesn't mean that every scholar and writer has to write about it.  It's not as if there's no scholarship or advocacy on that topic.   And happily Doug's blog does an admirable service in bringing cases like Berger to greater public attention, while also discussing other developments like the death penalty or shaming.  Anyway, I'll have some more thoughts on these issues in subsequent posts.

Update again: Over at Volokh.com, Orin registers his agreement with Doug on shaming.  He first notes that shaming is not as bad an affront to human dignity as other punishments such as long prison sentences.  I think I've already stated my agreement that long prison sentences are not the answer for the types of offenders who are generally plausible candidates for shaming.  So I don't really see a disagreement there.  (Indeed, that's why I wrote this article, to explain why alternatives to mass incarceration are important.)  The disagreement must be over the propriety and/or effectiveness of shaming vs other non-public humiliation punishments.  I will say more about the "prison default" argument in future posts.

Orin also raises an interesting question.  He asks: doesn't shaming "rely on, and ultimately reinforce, the notion that the offender is a valued member of the community?"  This notion that shaming is about, to use Orin's words, "hope and community" is more likely the case in the context of John Braithwaite's advocacy of "reintegrative shaming."  The kind of shaming Kahan has in the past endorsed  -- which is the kind that is typically practiced in American jurisdictions today -- is  not predicated on subsequent reintegration ceremonies for offenders.  Rather they were simply opportunities to parade offenders before the public eye for derision or worse.  (Indeed, those subject to shaming have sometimes had vigilante violence visited upon them, which is why having a policeman or guard near the offender being shamed is often necessary. That safeguard is not in place, I would guess, on account of the social meaning of shaming being one that speaks in the register of "hope and community."  It's there to protect against what Jim Whitman calls the pitch and yaw of the crowd.) 

Posted by Administrators on October 13, 2006 at 08:46 AM 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]

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"'I’ve never felt so ill,' says one reporter about the NY Times's coverage of the Duke lacrosse-team case." [New York Magazine] Double-standards for judicial seminars. [Point of Law; Volokh] 14-year-old British student arrested for not... [Read More]

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I'm wondering why the use of shame and humiliation isn't used more often as an alternative to jail sentences. The most plausible objection I've found seems to be that there are other alternatives that are better than those two choices. But even if tha... [Read More]

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shame is According to recent studies in evolutionary science, human beings developed the ability to feel shame because it helped promote social cohesion.

Posted by: Arborist Golden Co | Jul 26, 2021 2:22:17 AM

I agree! Most of the Times articles we draw from are written by adults, so we’re happy that our prompts give students a space to share their experiences.

Posted by: Concrete Greeley | Jun 20, 2021 4:24:05 AM

Absolutely! including Olympic winter gold medallist Bjorn Ferry and the musician Malena Ernman, who also happens to be climate activist Greta Thunnberg's mother.

Posted by: Relationship Coach | May 24, 2021 11:02:17 AM

Prison needs to be the last place on earth you would want to be. I watched a program where the prisoners have a tv, gym, get art lessons and can educate themselves and get a degree.

Posted by: globaltel | Feb 3, 2020 4:32:07 AM


'so shaming is always wrong'--I never said that, it's current proposals and how shaming is used in the penal system that trouble me. Outside of the criminal justice system, shaming may be perfectly proper, it all depends: owing to our ignorance as to the working of shame, and given that it often triggers troublesome and violent reactions, apart from being ineffective (see above), the deliberate employment of shaming mechanisms by the criminal justice system strikes me as misguided. I do have problems with many forms of punishment, but can't go into that here. However, I don't think all forms of punishment are disrespectful of the person qua person (indeed, as I think Kant argued, punishment may in fact show the utmost respect for the person qua person).... Shaming punishments may affect someone's reputation, I never quibbled with that: I oppose them for other reasons, some of which are mentioned in my discussion with Thom Brooks above. I trust you'll forgive me if I sign off at this point, but feel free to respond.

best wishes,

Posted by: Patrick S. O'Donnell | Oct 16, 2006 1:08:34 PM

I'm still not sure I understand the argument; your idea seems to be that prople because of their dignity have an inherent right to be respected, so shaming is always wrong. But if instituting a formal process for disseminating information about offenses is improperly disrespectful of a person, I don't see how restricting someone's liberty, or taking away his money--indeed, any form of punishment--can fail to be similarly improperly disrespectful. The reason I mention reputation is not because I think that dignity is reducible to reputation; I don't really know what dignity is, at least as it's used in this debate. I mention reputation in connection with shaming because of what I think shaming is: chiefly an attack on reputation.

Posted by: Chris | Oct 16, 2006 12:44:27 PM


Certain forms of shaming show a disrespect for the dignity of an individual, evidence a failure to recognize such dignity, betray a disregard for the value of dignity, and so on. Again, dignity is not about 'reputation.' To disrespect, fail to recognize or value the dignity that inheres with the individual is a failure to respect that individual, is a failure to recognize the inherent worth and intrinsic value dignity represents for us as human beings. The individual is thereby harmed, but her dignity is in no way diminished. Failure to respect the dignity of others is to cause them harm as individuals. The torturer may harm a person physically and psychologically for failing to respect the dignity that belongs to the person tortured. The suffering individual has not thereby suffered a diminution in dignity. It remains hers whatever harm comes her way, being an example of the inherent worth and intrinsic value she possesses by virtue of being a human animal. The fault lies with those who fail to recognize and respect it, being thereby responsible for the harm that results.

Posted by: Patrick S. O'Donnell | Oct 16, 2006 11:28:18 AM


You say: "Others may enhance or diminish my reputation, but dignity remains ineluctably mine, whether or not others choose to respect it..." But if that's the case, it seems that shaming shouldn't affect someone's dignity, so it shouldn't be a reason not to shame. If dignity isn't about someone's reputation, then harming someone's reputation doesn't harm his dignity, so the dignity-based objection to shaming misfires, right? (I'm assuming that shaming aims, like 8D1.4(a), merely to publicize the nature of an offense.)

Posted by: Chris | Oct 16, 2006 10:19:29 AM

typo: read 'your' for 'you'

Posted by: Patrick S. O'Donnell | Oct 16, 2006 9:48:44 AM


I’m grateful for you thoughtful response to my comments.

First, my point about the ‘prerogative’ of shaming was in reference to the criminal justice system as such. My point about the intra- and interpersonal dynamics of shame was that it can not serve as a means to bring about acknowledgement of a wrongdoing for that is to utterly miscomprehend the phenomenological dynamics of how shame operates, particularly in a culture such as ours which for some time now has engaged in what Thomas Scheff calls a ‘masking of shame,’ the likes of which are not found in, say, a more communitarian society like Japan, where shaming punishments can work, given the greater role of shame both sociologically and historically in that country.

For shame to have the desired effect when conceived as an alternative form of punishment, the person experiencing the shame must not only imagine an audience who will know and think something bad about her behavior, but she must come to identify with it as well. In societies lacking a communitarian ethos (such as ours) it's hard to envisage this occurring on a routine basis. In other words, it simply seems highly unlikely that we can reliably depend upon a criminal (or a person who has broken the law) to make that final step, to identify with the observer, to see things through their eyes. What is often conspicuously lacking in criminals is this capacity for empathic identification: all the more so when the person(s) one is to identify with is the de facto embodiment of the community's sense of right and wrong, of the community's standards for proper behavior. In this regard, consider the following from Anna Wierzbicka:

'[T]he older meaning of shame reflected a social climate in which other people's view of the individual was expected to act as a powerful means of control: it was expected that people wouldn't do certain things because wouldn't want other people to know, and to think, bad things about them; and it was assumed that the very thought of other people's potentially negative view of a person could make this person blush. The modern meaning of shame, however, does not reflect a kind of society where "other people's" anticipated view of us can be expected to act as a powerful regulator of our behaviour. In the modern Anglo society--as reflected in the mirror of semantics--other expectations and other concerns have come to the fore, as reflected, in particular, in the rise of the concept of *embarrassment* in modern English.' See her book, Emotions across Languages and Cultures: Diversity and Universals (1999).

No one is arguing that ‘holding a sign in public is more humiliating or stigmatizing than putting someone in prison,’ for this is to assume that those not in favor of shaming punishments believe the only alternative is the present means of punishment and incarceration. Indeed, there seems to be an assumption here that if you’re against shaming punishments you somehow are making a de facto vote in favor of current penal practices. One is reminded here of the argumentative strategy that used to be used against animal rights: it was claimed that if one supports animal rights, one is thereby somehow favoring such rights over human rights. This evidences a failure of imagination, as there might be any number of alternatives to ‘shaming punishments’ for lawbreakers we think pose no immediate danger to the public, short of our current penal practices. Rehabilitating the notion of ‘rehabilitation’ in a serious way for everyone in the current prison system is one alternative.

I agree that, ‘So long as we support imprisonment and the use of background checks for anyone, we support stigmatization, shame, and a loss of dignity for criminals,’ but as I learned long ago, two wrongs don’t make a right, and just because the current system leaves much to be desired, we’re hardly compelled to envisage an alternative that seems ill-considered, with little prospect for success, if only because those who propose it are not well versed in the philosophical, sociological, anthropological, and psychological literature on shame and related emotions (Professor Berman citing Japanese crime statistics a case in point).

We are all motivated by the ardent desire to do something about our current penal practices, but I fail to see why the possible alternatives must be circumscribed by the use of ‘shaming punishments.’

Posted by: Patrick S. O'Donnell | Oct 16, 2006 9:41:33 AM


I entirely agree that punishment should not have the shaming of citizens as its perogative. Shame is not something we do if we can avoid it. You note in your post: "For instance, to feel shame is to somehow acknowledge the fact that one has at least violated a social norm or law that others uphold and value, expressed in the various forms of disapproval at what the agent/subject has done." This is no doubt true. The problem is when we have persons before us who do not yet acknowledge this. Feeling shame can constructively bring us to feel guilt (and vice versa). When we can instil guilt, we should. It is important that the use of shame punishment be highly circumscribed, such as in US v Gementera. I simply cannot see how holding a sign in public is more humilaiting or stigmatizing than putting someone in prison. I know I would much rather choose to confront my fellow citizens and apologize for any wrong committed than be sent to prison (and potentially face much worse victimization at the hands of prison guards and inmates).

I think we all have far more in common than in disagreement. We all dislike the fact that prisoners are degraded and stigmatized in prison. We all want to do something about that. One solution is to use highly circumscribed shame punishments instead of prison: we still have the use of shame, but surely much less than imprisonment. It is not ideal, but better than the current alternative.

So long as we support imprisonment and the use of background checks for anyone, we support stigmatization, shame, and a loss of dignity for criminals. The use of shame punishment does not end this support, but limits it in a far more tolerable manner than prison. Shame punishment also appears to have wide public approval. We might see it as a stepping stone to punishments that cut back further on stigmatization and shame. It is not perfect, but better than prison. To this end, it might acceptable if seen as a temporary measure until public sentiments and improved knowledge of how best to restore the standing of criminals can be brough about.

Posted by: Thom Brooks | Oct 16, 2006 7:36:18 AM

Grits, you're absolutely right. I will say as much (and more) in the posts over the coming week.

Posted by: Dan Markel | Oct 15, 2006 11:56:29 AM

As I mentioned over on Grits, Kahan used the word "recant," but that doesn't mean he agrees with your position, Prof. Markel, that shame has no place in punishment. He advocates a shaming component in the restorative justice approaches he now champions as a paean to the right - his "recantation," by his own telling, was a tactical, not a moral position. I wrote that Kahan has "complicated" his position, but quoted from his essay you cite to show he has not really retracted his arguments in favor of shaming. Best,

Posted by: Gritsforbreakfast | Oct 15, 2006 8:42:35 AM


Such ethical and sometimes metaphysical notions as self-respect, self-worth and dignity are not in any straightforward or obvious sense about one's 'reputation,' as these notions do not at all depend upon or pivot around the (social) perceptions or judgments of others inasmuch as one is thought to possess such properties or attributes irrespective of how others may 'see' or 'judge' one (the criteria by which reputations are built may be relative to time and place, both fragile and fickle, if not unreliable; reputations are about presumptive, prima facie, or extrinsic value). I may be held in poor public esteem or regard by others, may lack a 'good name,' but that does not in any way infringe upon or detract from the fact that as a human being I am (and we all are) entitled to dignity, that we are mutually obligated to recognize the equal possession of (intrinsic) self-worth and self-respect in accord with our value as human beings (Kant argues that all responsible moral agents respect themselves as rational beings, even if they fail to individually realize this). Others may enhance or diminish my reputation, but dignity remains ineluctably mine, whether or not others choose to respect it, irrespective of how others recognize and treat me as a human being in possession of such dignity (or 'absolute worth' in the Kantian sense, which effectively means rational nature in its capacity to be morally self-legislative).

Posted by: Patrick S. O'Donnell | Oct 14, 2006 7:16:49 PM


Freedom from pain might well be different in kind from life, liberty, property, or reputation. (Some people, though--e.g., Graeme Newman--have suggested replacing prisons with corporal punishment.) All I'm saying is that I don't see any compelling grounds for thinking that reputation is different--it seems to me that the arguments against shaming don't show why reputation is special. It seems just as undignified to lose one's liberty or property or life as to lose (part of) one's reputation.

Posted by: Chris | Oct 14, 2006 6:12:24 PM


By way of clarification, how can a 'shaming punishment' work if the subject of the punishment has no sense of wrongdoing ('those who do not see they have done anything wrong': 'for them, shame punishment...may be best')? A person may lack a sense of guilt if they labor under the mistaken belief they have not acted wrongly (broken the law but somehow feel 'justified' in doing so), but I don't see how one can experience shame if one does not somehow believe, or soon come to believe, they have done something wrong, given the way shame appears to work. To understand the expressions of disapproval is at least a rudimentary or dim acknowledgement that one may have done something wrong, if only at first, in the eyes of others. For instance, to feel shame is to somehow acknowledge the fact that one has at least violated a social norm or law that others uphold and value, expressed in the various forms of disapproval at what the agent/subject has done. Moreover, shame seems to work best in intimate social contexts in which the actors involved are personally acquainted with each other, which raises questions as to its effectiveness as a form of punishment in a (rightly, impersonal) criminal justice system, to wit:

'One of the reasons I value and nurture a strong social bond with my spouse is that she will tell me when I get drunk and make an ass of myself at a dinner party (when no one else will tell me). Conversely, because I have a strong social bond with my spouse, it is easier for disapproval to be expressed that it is with others who have weak bonds with me. And it is easier for disapproval to be expressed constructively. If a person who I meet for the first time at the dinner party tell me that I am being a drunken ass, I am more likely to respond to this aggressively than I am when it comes from my wife whom I know loves and cares for me. When disapproval results in the acknowledgement of shame, shame can persuade actor against what they come to recognise as wrongdoing (such a violence).'---John Braithwaite

The above is taken from the foreword to an important work by Thomas J. Scheff and Suzanne M. Retzinger, Emotions and Violence: Shame and Rage in Destructive Conflicts (1991). In this book Scheff and Retzinger note the important fact that 'Shame is expressed and discussed openly in traditional societies , but is disguised and denied in modern civilization, both by individuals and institutions.' In other words, 'in our civilization, shame is shameful....' The experimentation with shaming punishments by the legal system is therefore rather dangerous insofar as such experimentation should not carry the burden of changing overnight our culture's denial of shame ('except under extreme circumstances' according to our authors). Highly visible shaming of undesirable acts may be integral to social order and socialization, but it's not clear that such shaming should be the prerogative of the criminal justice system, particularly if there's a lack of widespread understanding of the meaning and mechanisms of shame in our culture, let alone an acknowledgement of shame as such.

More can be said here, but that will have to wait another time and place.

Posted by: Patrick S. O'Donnell | Oct 14, 2006 11:49:54 AM

Let me add further support to Patrick's post, Dan. Let us all agree that punishments should be as humane as possible. If shame punishment is more humane than prison, then it may not be ideal but it is an improvement. And it is.

I agree with Kahan (and Nussbaum) that we want to protect the dignity of all persons, not least offenders. We do not want to stigmatize. However, absolutely no one seems to be arguing against background checks. If I have been convicted of a major crime, I will be stigmatized for life when looking for work. Unless we want to say that these checks shouldn't be done for most, if not all, positions, then we are all willing to live with stigmatization.

We are all for imprisonment, too. Restorative justice and reintegration are almost always discussed in terms of how we might respond to more minor offences, as well as only a small handful of more violent offences, such as domestic abuse (Linda Mills's terrific book comes to mind). We don't normally support a restorative approach for all violent crimes, such as murder or terrorism. Criminals are degraded in prison. We all accept this, although we all want to see conditions improve. However, as it stands, we do accept the presence of shame, stigmatization, and loss of dignity. The trick is doing as little as we can with each.

Some people do not believe they are performing wrongs. Even Nussbaum (who is against shame punishment) acknowledges that shame can instil guilt in the apathetic. If we are able to help criminals understand their wrongdoings, then this seems a good way to go. Restorative justice may work best for persons open to the fact they have done wrong--this may be an important reason why they might agree to go through with this. The problem is then those who do not see they have done anything wrong. For them, shame punishment (with the various safeguards defended in Gementera) may be best.

Shame punishment is not for everyone, but I do think it can be defended. still. (See also my paper on shame punishment: http://ssrn.com/abstract=889702 )

Posted by: Thom Brooks | Oct 14, 2006 10:56:19 AM

Chris writes: In general, I think shaming sanctions act against an offender's reputation, just like prison or probation restrictions act against his liberty, the death penalty acts against his life, and a fine acts against his property. Of an offender's life-liberty-property-reputation bundle of interests, I don't see any compelling reason to regard reputation as particularly off-limits as a criminal sanction.

I have a counter-question, rather than an answer. Under this logic, why is any punishment off-limits? If we punish people for retributive reasons and for deterrence, why don't we just save money on the prison system and torture people for a couple of weeks instead of incarcerating them for a couple of decades. At least some prisoners would see this as an even trade, the prospect of torture might have more deterrent value than incarceration, and more prisoners would be given a chance to have productive lives again rather than having 20 years of exposure to prison social norms kill any chance these people might have of reintegration.

I tend to think that the answer is, in part, that it is somehow important for our system of criminal punishment to show respect for the dignity of those it punishes, as that is one of the few ways that society maintains its moral authority to punish. Thus, the stronger objections to "parading around" of criminals than to "reintegrative"/"rehabilitative" shaming.

Posted by: 05grad | Oct 14, 2006 10:44:40 AM

I recognize, Orin, that your point wasn't about reintegrative shaming. I was suggesting, or trying to suggest at least, that your way of understanding shaming would be more persuasive (to me at least) in the reintegrative shaming context. The fact that violence is a real risk attending the non-integrative types of shaming suggests to me that understanding shaming to be expressive of "hope and community" is a misreading of our social norms and the social meaning of shaming punishments as practiced in America today. Whether the social meaning will work an independent constraint on what we want shaming to mean (pro-hope or anti-hope) is a point Kahan develops as the "humpty-dumpty" rule of social meaning. Anyway, thanks for the probing questions. On to other issues...the weekend is here.

Posted by: Dan Markel | Oct 13, 2006 6:32:15 PM


Actually, my point is not about "reintegration." Rather, the argument is designed to deal with the "parading around" type punishments.

Posted by: Orin Kerr | Oct 13, 2006 6:04:59 PM

that's not an unfair point about EP. I'll be curious to see how you read Posner's take. My characterization in the post was that Kahan has recanted, which is his word choice, and that EP has modified his view. I used modified because Kahan now reads Posner as a shaming critic. See the Texas LR piece. But you're right that EP could possibly say, I'm for it in some cases and against it in others. Fair 'nuff.

Posted by: Dan Markel | Oct 13, 2006 4:52:53 PM

I'll have to look at the book to see exactly what Posner thinks now, but even Old Kahan didn't go any further in support of shaming than "think[ing] it's permissible in some contexts but worr[ying] [or wondering] about its effectiveness in others." I certainly wouldn't go any further than than that, but I'd still be inclined to disagree with categorical arguments that shaming is never appropriate. The relevant divide in the literature has always been between "never OK" and "sometimes OK," I think, so as long as Posner's still in the "sometimes" camp, that doesn't count as recanting.

Posted by: Chris | Oct 13, 2006 4:41:57 PM

sorry I posted my comment before I saw yours. Eric Posner's book, Law and Social Norms, takes a more critical view of shaming than the view advanced in his 1999 article with Kahan; my sense is that Posner thinks it's permissible in some contexts but worries about its effectiveness in others. Kahan's latest piece in Texas cites Posner as critical of shaming, fwiw.

Posted by: Dan Markel | Oct 13, 2006 3:45:21 PM

I apologize for the delay: I had class and meetings this morning.

Trevor asks: isn't it fair and appropriate to ask whether, e.g., general population incarcertaion plus some form of public shaming would exact less of a toll on Wino's human dignity than extended and extreme solitary confinement? And isn't that possibly what Doug B was getting at?

Trevor, it’s possible that Doug was getting at that, but he didn’t say he was, and it requires a bit of mental gymnastics to reach the point you get at. I’m not saying it’s impossible. But it’s also not the only conclusion to draw. Indeed, it strikes me that in light of the particular context of Doug’s post and the conversation from which it stemmed -- which, as I understood it, was discussing using shame as an alternative to incarceration and not as a supplement -- it’s not unreasonable to ask whether the example Doug provided of stunning assaults of human dignity, ie, of Wino, was what he had in mind as a suitable candidate for shaming as the alternative to incarceration. Dan Kahan has in the past written about using shaming as a substitute for many different kinds of crime, including sexual assault. Using shaming alone or along with fines and community service is not “obviously inadequate” to some people, and I wanted to know to whom Doug thought shaming applies as an alternative to incarceration.

Putting aside the snark, your point about mixing shame with other carceral strategies raises a different and worthy question. My response, like others including Martha Nussbaum or Jim Whitman, has been: let’s ensure that all punishments, including the conditions of confinement, are compatible with human dignity. Full stop.
I reckon that how that cashes out will vary. Some people may think SHU units are incompatible with human dignity all the time. Others may differ. Caging people who have repeatedly proven both inside and outside of prison that they won’t co-exist peacefully with others (and do so with mens rea, rather than mental disease) is not, to my mind, an irrational social response. Thus, pace your comment, I don't believe the fact of SHU units is always, to my mind, a greater intrusion on human dignity. After all, social planners must also worry for the safety of inmates and other prison guards. Their human dignity and personal security matters at least as much.

That doesn’t mean Wino is or is not an appropriate candidate for SHU. (I don’t know enough about what his involvement with prison gangs entailed.) But it does mean that he’s not an appropriate candidate for public shaming. Not because he’s Wino. But because we are who we are. In other words, public shaming (of the non-reintegrative sort at least) is always designed to corrupt human dignity—not just the offenders but those who engage in it. Other forms of punishment, even ones that seem harsh (like SHU) might be viewed more modestly, as social self-defense. (Keep in mind that some go to SHU for protection from the depradations of others. That too is unfortunate.)

I should note that if someone is a violent threat to those around him, the idea of shaming him (with the population at large, or just the prison population?) on top of a period of incarceration in general population seems a bit weird, frankly. More of a spectacle of vengeance than serving either moral condemnation (which is satisfied by incarceration) or deterrence.

You don't mention it here, but others including Kahan note that shaming might be preferred by the offender (or shaming plus general as opposed to SHU). The choice of the offender is not relevant. Punishment is about coercion. Offenders would probably rather not serve any time or punishment. I’ll have more to say about this in the follow up posts.

Patrick: re: restorative justice, I’ll have some discussion of that in the followup posts. I think my discussion above incompletely gestures at answers to some of your questions about maximum security prisons and whether they are inherently or the epitome of humiliation and shaming I find troubling.

Thanks for these comments.

Posted by: Dan Markel | Oct 13, 2006 3:42:18 PM

Eric Posner co-authored one of Dan Kahan's pieces; he hasn't recanted, has he? Their proposal is chiefly for an expansion of USSG sec. 8D1.4(a), which applies to organizations: "The court may order the organization, at its expense and in the format and media specified by the court, to publicize the nature of the offense committed, the fact of conviction, the nature of the punishment imposed, and the steps that will be taken to prevent the recurrence of similar offenses."

In general, I think shaming sanctions act against an offender's reputation, just like prison or probation restrictions act against his liberty, the death penalty acts against his life, and a fine acts against his property. Of an offender's life-liberty-property-reputation bundle of interests, I don't see any compelling reason to regard reputation as particularly off-limits as a criminal sanction.

Posted by: Chris | Oct 13, 2006 3:16:37 PM


Does your reasonable suggestion that 'we should use non-humiliation and non-carceral alternatives where feasible' include the mechanisms of restorative justice and reconciliation Dan Kahan now recommends? [perhaps that discussion is being reserved for another post]

Also, setting aside for the moment a characterization of the inmates in these prisons, wouldn't you say that maximum security and supermax confinement is simply inhumane, utterly degrading if not psychologically debilitating (legally speaking, 'cruel and unusual punishment')? Indeed, it seems to epitomize rather dramatically the very kinds of humilation and shaming you find troubling (see, for instance, James Gilligan's Violence: Our Deadly Epidemic and Its Causes, 1996). Or is 'very tough' a euphemism for same?

Posted by: Patrick S. O'Donnell | Oct 13, 2006 9:34:37 AM

Dan, isn't your response to Doug B's point re Wino also something of a distraction? One can always imagine alternatives to the current punishment regime that would be obviously inadequate (e.g., punishing a convicted violent felon and gang member with a few hours' shaming instead of a long period of incarceration), but that doesn't show that some consideration of the alternative isn't potentially helpful on the margin.

So in the case of Wino, wouldn't it be useful to think about whether, instead of subjecting him to the extreme privations of extended solitary confinement, we should put him in a prison environment that allowed for greater human interaction *and* imposed some form of shaming punishment on him once he gets out (or perhaps before he begins his prison time)? That is, if you agree that shaming punishments and some of our current incarceration policies both compromise human dignity in undesirable ways, wouldn't it be appropriate to ask whether some shaming punishments might be less objectionable on human dignity grounds than some forms of incarcertaion? This would lead to a discussion about the advantages and disadvantages of *partially* substituting one punishment form for another, not wholesale substitution of one for the other.

Of course, the discussion I'm proposing wouldn't be a discussion about ideal, first-best punishment options, since I'm accepting (for present purposes at least) that any amount of shaming compromises human dignity to some extent. But as long as we agree (and surely we do) that there can be more and less serious intrusions on human dignity, a second-best discussion of the sort I'm proposing seems useful. In short, isn't it fair and appropriate to ask whether, e.g., general population incarcertaion plus some form of public shaming would exact less of a toll on Wino's human dignity than extended and extreme solitary confinement? And isn't that possibly what Doug B was getting at?

Posted by: Trevor Morrison | Oct 13, 2006 9:25:02 AM

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